The High Court has admitted the United States, the Electronic Privacy Information Centre (EPIC), the Business Software Alliance (BSA) and Digital Europe as amici curiae in proceedings concerning transfers of personal data from the European Economic Area to the United States. It refused five other applications to take part in that capacity.
The ruling, delivered by Mr Justice Brian J. McGovern on 19 July 2016, addresses participation in the case, not the validity of the standard contractual clause decisions at issue. The court made no ruling on whether the clauses permit the transfers or whether US law provides adequate protection for EU citizens’ data rights.
The Data Protection Commissioner brought the proceedings against Facebook Ireland Limited and Maximillian Schrems. The Commissioner seeks a declaration on the validity of three European Commission decisions approving standard contractual clauses for data transfers, and a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling.
The proceedings followed a CJEU ruling that invalidated the EU-US Safe Harbour Decision. The High Court later quashed the Commissioner’s refusal to investigate Schrems’s complaint, and the complaint returned to the Commissioner. After investigating a reformulated complaint, the Commissioner issued a draft decision on 24 May 2016. The judgment says that the draft was issued to allow further submissions; the Commissioner would consider them in due course.
The court said the Commissioner could not conclude her investigation without a CJEU ruling on the three standard contractual clause decisions. It also noted that the case raised public law issues and could affect many organisations, while there was no factual dispute between the parties. The judge considered that applicants who might be entitled to be heard at the CJEU should have an opportunity to participate in the High Court proceedings before a reference.
The United States, EPIC, BSA and Digital Europe were admitted because, in the judge’s view, each had an interest or expertise capable of assisting the court. EPIC gave an undertaking that Schrems would have no role in preparing its submissions or advising it, and that there would be no communication between them about the proceedings while they remained ongoing.
The court refused applications from the Electronic Frontier Foundation, the Irish Council for Civil Liberties and the American Civil Liberties Union, Kevin Cahill, IBEC, and the Irish Human Rights and Equality Commission. The judge was not satisfied that they would add assistance or perspectives beyond those available from the parties and admitted amici, or found that the proposed contribution did not fit the role of an amicus.
The case was listed for further directions. The judge said the parties could address how the amici would assist, including whether evidence on US law would be given and whether it should be provided by affidavit or submissions.