The High Court refused Facebook Ireland Limited’s application to stay an order referring questions about standard contractual clauses (SCCs) to the Court of Justice of the European Union (CJEU). Ms Justice Costello ordered that the reference be delivered to the CJEU immediately.
The ruling, delivered on 2 May 2018, concerned only whether the reference should be paused while Facebook sought to appeal. It did not determine the underlying questions about the validity of the SCC decisions or the lawfulness of data processing.
Facebook argued that it intended to appeal both the decision to make a reference and certain factual findings. It relied on the CJEU’s judgment in Cartesio, which recognises that national law may allow an appeal against a decision to refer, while preventing an appellate court from stopping or varying the reference. Facebook said an appeal court might revise facts in the reference and that the reference could become moot when the General Data Protection Regulation (GDPR) took effect on 25 May 2018.
Costello J said she was bound by the Supreme Court’s decision in Campus Oil, which held that no appeal lay from a High Court reference to the Court of Justice. She found that Cartesio did not require Ireland to provide for such appeals. She also rejected Facebook’s argument that an appellate court could alter the referring court’s factual findings for the reference, finding no arguable case under EU law for that proposition. On that basis, Facebook had not established an arguable right to appeal, and the stay had to be refused.
The judge considered the risk of injustice even if she was wrong about the appeal point. Facebook said the CJEU might hear the reference before any Irish appeal concluded, potentially depriving it of a meaningful appeal. The DPC submitted that the Irish process might finish first, and that the High Court could amend or revoke the reference to take account of a binding appeal decision; the CJEU could also suspend its proceedings.
Costello J said delay could cause potentially grave prejudice to the DPC and Maximilian Schrems, as well as to millions of EEA data subjects whose data continued to be processed under the SCC decisions. She noted the DPC’s position that, if its concerns were correct, that processing might be unlawful. She also criticised Facebook for raising the GDPR mootness point only at the stay stage, despite a brief discussion during trial, saying the parties and court had not been clearly alerted to it.
The court refused any stay and directed that the reference be sent to the CJEU immediately. The judgment did not decide whether Facebook could pursue an appeal; Costello J said that remained possible, but she was bound by Campus Oil unless and until the Supreme Court changed that ruling.