The Supreme Court granted Facebook Ireland Ltd leave to appeal directly from the High Court in proceedings over EU-to-US personal data transfers. The decision, delivered by Chief Justice Frank Clarke on 31 July 2018, permits an appeal on legal and factual issues; it does not decide those issues or resolve the underlying challenge to EU data-transfer measures.
The Data Protection Commissioner and Maximillian Schrems had argued that no appeal lay because the High Court had referred questions of EU law to the Court of Justice of the European Union (CJEU). They relied on limits imposed by Irish constitutional law and the CJEU’s ruling in Cartesio on appeals that could interfere with a national court’s power to make or maintain a preliminary reference.
Facebook argued that the case could be distinguished from earlier Irish authority because the CJEU might make the substantive decision on the validity of the measures, leaving the High Court’s factual findings without a later opportunity for review in Ireland. It also sought to challenge the High Court’s assessment of US law and the questions referred to the CJEU. Those proposed grounds were Facebook’s arguments, not findings made by the Supreme Court.
Chief Justice Clarke said there was an arguable issue over whether an appeal was available and, if so, what kind of appeal could be heard. He also considered Facebook’s proposed challenges to the High Court’s factual findings arguable at the leave stage, while making clear that this was a limited assessment and without prejudice to their merits.
The Court said the legal questions met the constitutional threshold of general importance and that hearing the factual and legal issues together served the interests of justice. It also found exceptional circumstances supporting a direct appeal from the High Court.
Leave was granted on all issues raised by Facebook, with their precise scope left for the case-management judge. The judgment highlighted uncertainty about whether the Supreme Court could reverse the High Court’s decision to refer questions to the CJEU or alter those questions, given EU-law limits. Facebook was directed to file a notice of intention to proceed within seven days and submissions by 14 September; responses were due by 5 October. The case was to be prepared for an early appeal hearing, with a view to readiness before the end of the year.