The High Court refused applications by three amici curiae to submit affidavits in proceedings concerning data transfers from the European Economic Area to the United States. The ruling did not decide the underlying dispute or the validity of the standard contractual clauses at issue.
The Data Protection Commissioner is seeking declarations concerning those clauses as they apply to EEA-to-US transfers, and a preliminary reference to the Court of Justice of the European Union. The case arose from a complaint by Maximillian Schrems concerning transfers by Facebook Ireland Limited to Facebook Inc. in the United States.
The three applicants were Digital Europe, the Business Software Alliance and the Electronic Privacy Information Center. Justice Costello said an amicus curiae’s role is to assist the court. Although there is no absolute rule against an amicus giving evidence, the usual rule is that it does not. The question was whether each proposed affidavit would assist the court in deciding the issues before it, given the evidence from the parties.
Digital Europe’s proposed affidavit addressed transfers to third countries, including the United States. The judge said this case concerned only the United States, and Facebook Ireland had already provided evidence about transfers there. She refused permission to file the affidavit, finding it largely addressed matters beyond the case’s scope and was not necessary for the court’s work.
The Business Software Alliance said its affidavit would fill a gap in the factual material. The judge said new, uncontested material was not enough to justify an affidavit. Having considered the Alliance’s written submissions, she concluded it could assist as an amicus without introducing evidence and refused its application.
The Electronic Privacy Information Center’s affidavit concerned US law and practice. The judge said evidence from five experts for the parties would address relevant areas of US law, with extensive materials already before the court and expert witnesses to be cross-examined. She found the affidavit unnecessary in those circumstances and refused permission to file it.
The ruling concerned only whether the three amici could introduce their proposed affidavits. It left them able to assist the court as amici through submissions.