Supreme Court grants leave to appeal on constitutional and EU law issues regarding the Schrems case reference.

THE SUPREME COURT

Record No: 2018/68

Clarke C.J.

O’Donnell J.

Dunne J.

Charleton J.

Finlay Geoghegan J.

Between/

The Data Protection Commissioner & Anor

Plaintiff/First Named Respondent

And

Facebook Ireland Ltd

Defendant/Appellant

And

Maximillian Schrems

Defendant/Second Named Respondent

Judgment of Mr. Justice Clarke, Chief Justice delivered the 31st July 2018

1. Introduction

1.1 This judgment relates to an application for leave to appeal to this Court directly from the High Court. The issues which generally

arise in these proceedings can be seen from the judgment of the High Court (Costello J.) delivered on the 3rd October 2017 (The Data

Protection Commissioner v. Facebook Ireland Limited & anor. [2017] IEHC 545)

1.2 The basis on which the defendant/appellant (“Facebook”) suggests that an appeal to this Court meets the constitutional

threshold for leave to bring a direct or leapfrog appeal to this Court from that decision of the High Court is fully set out in the notice

of appeal filed which, in accordance with the Court’s normal practice, is published along with this judgment. The reasons why the

plaintiff/first named respondent (“The Data Protection Commissioner”) and the defendant/second named respondent (“Mr. Schrems”)

opposed the grant of leave are set out in the respective respondents’ notices filed which are also published along with this judgment.

1.3 It follows that it is unnecessary to set out in detail either the issues which arise in these proceedings and potentially on appeal or

the arguments put forward by both sides on whether or not leave should be granted. However, unusually, the Court decided that it

was necessary to conduct an oral hearing so as to explore some of the difficult issues both of national constitutional law and of

European Union law which potentially arise and which impact on the significant question of whether any appeal is available in the

particular circumstances of a case such as this.

1.4 In simple terms, it is argued both by the Data Protection Commissioner and by Mr. Schrems that, as a mixed question of European

Union law and Irish constitutional law, no appeal lies in circumstances where the High Court has decided to make a reference to the

Court of Justice under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) which provides as follows:-

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers

that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions

there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in

custody, the Court of Justice of the European Union shall act with the minimum of delay.”

1.5 Before going on to consider the questions which arise on this application for leave, it is appropriate to identify the general

principles by reference to which this Court ordinarily approaches the question of whether it is appropriate, having regard to the

provisions of the 33rd Amendment, to grant leave.

2. General Principles

2.1 As this Court has noted in its recent determinations, the general principles applied by the Court in determining whether to grant or

refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now

been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all

of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court

delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The

additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be

permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows

that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2.2 However, there clearly are additional questions which arise in the context of this case having regard to the significant issue

between the parties as to whether it is possible to pursue an appeal at all. I therefore turn to that question.

3. Does an Appeal Lie?

3.1 The starting point has to be to identify the national jurisprudence in this regard. The leading case is clearly Campus Oil Limited

and ors v. Minister for Industry and Energy and ors [1983] 1 I.R. 82.

3.2 It is unnecessary to set out the background to Campus Oil in detail, except to note that it concerned an appeal to the Supreme

Court seeking to discharge or set aside an order of Murphy J. in the High Court making a preliminary reference to the Court of Justice

regarding the proper interpretation of certain Treaty articles. Walsh J. delivered the judgment of this Court (O’Higgins C.J. and

Hederman J. concurring), concluding that the Court had no jurisdiction to hear such an appeal.

3.3 It is worth quoting at length from the reasoning of Walsh J. in reaching this conclusion. Walsh J. stated:-

“A request by a national judge to the Court of Justice for an interpretation of articles of the Treaty is not, in any sense,

an appeal to a higher court. It is an exercise of a right (which, by its nature, is non-contentious) to request an

interpretation of the Treaty from the Court of Justice which itself is the only one having jurisdiction to give such binding

interpretations. The national judge, by virtue of this power conferred upon him by the Treaty, exercises a function under

Irish law in making such a request. The power is conferred upon him by the Treaty without any qualification, express or

implied, to the effect that it is capable of being overruled by any other national court. It is not within the power of the

Oireachtas, or of any rule-making authority, to give any national court the power to modify or to control the unqualified

jurisdiction conferred upon the national judge by article 177 of the Treaty. The national judge has an untrammelled

discretion as to whether he will or will not refer questions for a preliminary ruling under article 177. In doing so, he is not

in any way subject to the parties or to any other judicial authority.”

3.4 Later, Walsh J. stated:-

“It is as a matter of Irish law that article 177 of the Treaty confers upon an Irish national judge an unfettered discretion

to make a preliminary reference to the Court of Justice for an interpretation of the Treaty, or upon the validity or the

interpretation of acts of the institutions of the Community, or upon the interpretation of statutes of bodies established by

an act of the Council, where the statutes so provide. The very purpose of that provision of article 177 of the Treaty is to

enable the national judge to have direct and unimpeded access to the only court which has jurisdiction to furnish him with

such interpretation. To fetter that right, by making it subject to review on appeal, would be contrary to both the spirit

and the letter of article 177 of the Treaty.”

3.5 Walsh J. also made the following observation in the course of his judgment:-

“In so far as any reliance is sought to be placed upon Article 34 of the Constitution (which gives a right of appeal to this

Court from all decisions of the High Court, subject to such exceptions as are permitted by law), in my view the reference

made by Mr Justice Murphy in this case is not a decision within the meaning of Article 34. He made no order having any

legal effect upon the parties to the litigation. If and when he comes to apply the Treaty provisions to the case before

him, then he will have made a decision which can be appealed to this Court. This Court would then have to decide

whether or not the Treaty provisions in question were applicable to the case. However, even if the reference of questions

to the Court of Justice were a decision within the meaning of Article 34 of the Constitution, I would hold that, by virtue of

the provisions3 of Article 29, s. 4, sub-s. 3, of the Constitution, the right of appeal to this Court from such a decision

must yield to the primacy of article 177 of the Treaty. That article, as a part of Irish law, qualifies Article 34 of the

Constitution in the matter in question.”

(Emphasis added)

3.6 In substance, Facebook argues either that Campus Oil was wrongly decided or that this case can be distinguished from Campus

Oil, not least because of the unusual nature of these proceedings. While it will be necessary to refer briefly to the nature of these

proceedings in due course, it does need to be recorded that a particularly unusual feature of this case is that it would appear that, in

substance, the Court of Justice of the European Union (“CJEU”) will be asked to make a final decision on the validity of the measures

of the European institutions which are under scrutiny such that the matter will not come back to the Irish courts to deal with any

subsequent matter of substance.

3.7 In those circumstances, it appears to be accepted by all parties, and seems clear to the Court, that there would be no possibility

for any subsequent appeal within the Irish legal system, for the CJEU would have made a final and definitive decision on the validity or

otherwise of the measures under challenge and there would be no jurisdiction for either the Court of Appeal or for this Court to depart

from that ruling. Thus, unlike most cases where there may be a preliminary reference under Article 267, the final finding of substance

would appear to be one which would be made by the Court of Justice rather than by the national court. In those circumstances,

Facebook argues that, at a minimum, it is possible to distinguish a case of this type from that which was under consideration by this

Court in Campus Oil.

3.8 The second set of issues which arise in this context concerns the limitations which European Union law imposes on national legal

systems concerning what might be termed interference with the role of a referring court which avails of its entitlement to invoke

Article 267.

3.9 In Case C-210/06 Cartesio [2008] ECR I-9641, the CJEU stated as follows at paragraph 93:-

“As is clear from the case-law cited in paragraphs 88 and 89 above, concerning a national court or tribunal against whose

decisions there is a judicial remedy under national law, [Article 267 TFEU] does not preclude a decision of such a court,

making a reference to the Court, from remaining subject to the remedies normally available under national law.

Nevertheless, the outcome of such an appeal cannot limit the jurisdiction conferred by [Article 267 TFEU] on that court to

make a reference to the Court if it considers that a case pending before it raises questions on the interpretation of

provisions of Community law necessitating a ruling by the Court.”

3.10 The CJEU further stated at paras. 95 and 96 of Cartesio:-

“Where rules of national law apply which relate to the right of appeal against a decision making a reference for a

preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety,

the order for reference alone being the subject of a limited appeal, the autonomous jurisdiction which [Article 267 TFEU]

confers on the referring court to make a reference to the Court would be called into question, if – by varying the order for

reference, by setting it aside and by ordering the referring court to resume the proceedings – the appellate court could

prevent the referring court from exercising the right, conferred on it by the EC Treaty, to make a reference to the Court.

In accordance with [Article 267 TFEU], the assessment of the relevance and necessity of the question referred for a

preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by

the Court in accordance with the case-law cited in paragraph 67 above. Thus, it is for the referring court to draw the

proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a

conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw

it.”

3.11 The CJEU concluded as follows at paragraph 98:-

“In the light of the foregoing … where rules of national law apply which relate to the right of appeal against a decision

making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring

court in their entirety, the order for reference alone being the subject of a limited appeal, the second paragraph of

[Article 267 TFEU] is to be interpreted as meaning that the jurisdiction conferred by that provision of the Treaty on any

national court or tribunal to make a reference to the Court for a preliminary ruling cannot be called into question by the

application of those rules, where they permit the appellate court to vary the order for reference, to set aside the

reference and to order the referring court to resume the domestic law proceedings.”

3.12 In Case C-470/12 Pohotovost [2014] the CJEU followed its decision in Cartesio, stating as follows at paragraphs 31 and 32:-

“As regards the fact that an appeal was brought against the order for reference, it must be noted that, in accordance

with Article 267 TFEU, the assessment of the relevance and necessity of the question referred for a preliminary ruling is,

in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court in

accordance with the case-law cited in paragraph 27 above. Thus, it is for the referring court to draw the proper

inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion

as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it (Case

C‑ 210/06 Cartesio [2008] ECR I‑ 9641, paragraph 96).

It follows that, in a situation such as that in the main proceedings, the Court must – also in the interests of clarity and

legal certainty – abide by the decision to make a reference for a preliminary ruling, which must have its full effect so long

as it has not been revoked or amended by the referring court, such revocation or amendment being matters on which that

court alone is able to take a decision (Cartesio, paragraph 97).”

3.13 At this stage, it is perhaps worth also highlighting the comments of Judge Lenaerts, now President of the CJEU, writing extra-

judicially on this issue (see Lenaerts, “National Remedies for Private Parties in the light of the EU Law Principles of Equivalence and

Effectiveness” (2011) 46 JUR 13). He observed as follows:-

“...the success of art.267 TFEU is built on the very absence of hierarchy. ‘Dialogue’ is the raison d'être of the preliminary

reference procedure and the interest of promoting dialogue is best served by making the opportunity to engage in

dialogue available not only to higher national courts but also to lower ones. Moreover, it will often be apparent from the

very outset that a case before a national court of first instance will require a preliminary ruling from the ECJ and it would

therefore be both inefficient and counterproductive to apply any form of filter curtailing or inhibiting the lower national

court's freedom to make a reference.”

3.14 There can be no doubt but that what I will describe as the Cartesio jurisprudence imposes significant limits on the ability of a

national appellate court to interfere with the important freedom, which every national court enjoys, to make a reference to the CJEU

under Article 267. There may, however, be questions as to the precise extent of that limit.

3.15 It is important to note that both the Data Protection Commissioner and Mr. Schrems argue that the combined effect of the

constitutional appellate structure which applies in this jurisdiction and the jurisprudence of the CJEU as set out in Cartesio mean that

there cannot be any appeal in a case such as this. While acknowledging that, as a matter of Union law, the Cartesio jurisprudence

permits, with significant limitations, an appeal process in a member state notwithstanding the fact that a reference from a lower court

is pending before the CJEU, it is argued that the only form of appeal which the Cartesio jurisprudence would permit is an appeal which

is not recognised, and therefore is not possible, in the Irish appellate structure. The argument is to the effect that the only form of

appeal which is recognised in the Irish appellate structure is one where the appeal court has the power to reverse or overturn any

decision of the lower court which is the subject of a successful appeal. It is said that the limitations imposed by Cartesio do not

permit such an appeal.

3.16 It is on that basis that both the Data Protection Commissioner and Mr. Schrems argue that leave to appeal should not be given

because, it is said, no appeal lies in the circumstances of this case. However, it is also necessary to consider the full extent of the

issues which Facebook seeks to raise on this potential appeal.

4. The Issues Facebook Seeks to Raise

4.1 In its application for leave to appeal, Facebook sets out 10 grounds on which an appeal would be pursued if leave to appeal were

granted. It seems to me that it is possible to summarise and categorise those grounds in the following manner.

4.2 Three of the proposed grounds (Grounds 1, 2 and 10) relate to either the validity, or necessity, of the making of the reference by

the High Court, or the content of the reference itself. Ground 1 relates to the High Court’s finding in respect of the Privacy Shield

Decision (Commission Decision 2016/1250). Broadly speaking, the argument raised under this ground is that the High Court erred in

making a reference to the CJEU where, Facebook argues, the High Court was bound by the decision/finding on US law contained in

the Privacy Shield Decision in respect of the adequacy of protections in the context of governmental surveillance.

4.3 Ground 2 concerns the alleged failure of the High Court to consider the imminent repeal of Directive 95/46/EC. The broad

argument here is that as a result of the repeal of this Directive, and the introduction of the General Data Protection Regulation

(“GDPR”), the difference between the legal context which formed the background to the making of the reference and that which will

adhere when the CJEU comes to answer the questions referred is such that Facebook considers that the making of the reference is

rendered inappropriate.

4.4 Ground 10 relates to the wording of one of the questions referred by the High Court. Facebook states that, notwithstanding its

other grounds of appeal, it objects to the inclusion in Question 1 of the phrase “Law enforcement and the conduct of foreign affairs of

the third country”. Facebook contends that should this Court decide that the reference made by the High Court is necessary, it

should nonetheless amend that question to remove this phrase.

4.5 Grounds 3 to 6 as set out in the application for leave relate to alleged errors on the part of the High Court in its assessment of US

law. Facebook argues that these are matters which are central to any reference to the CJEU as they form the backdrop to that

Court’s legal analysis of the questions before it. Essentially, Facebook would urge this Court to “correct” the findings of the High Court

in this regard. The alleged errors relate to the High Court’s finding in respect of “mass indiscriminate processing” (Ground 3), the High

Court’s finding that surveillance is legal unless forbidden (Ground 4), the High Court’s finding on the doctrine of standing in US Law

(Ground 5) and the High Court’s findings with respect to remedies and its consideration of other issues such as safeguards (Grounds

6). Of course, as these findings relate to the law of another jurisdiction, the High Court’s findings in this context are treated as

findings of fact and not of law. The implications of this distinction are explored below.

4.6 Grounds 7 and 8 are closely related to Grounds 3 to 6. In particular, they relate to Article 47 of the Charter of Fundamental Rights

of the EU, which recognises the right to an effective remedy. Facebook argue that the High Court erred in relation to its finding that

the laws and practices of the US did not respect the essence of the right protected by Article 47 of the Charter, and also object to

the High Court’s findings regarding the proportionality of any interference with the right protected by Article 47.

4.7 Finally, Ground 9 concerns the High Court’s alleged failure to consider what is said to be “a significant volume of uncontradicted

evidence” in relation to a range of matters. Facebook contends that this evidence was essential to the Court’s assessment of the

practices which protect data, the vital security interests involved, and the range of important Charter rights engaged in connection

with the transfer of data.

4.8 It follows that it is also necessary to say something about the substantive issues of fact which Facebook wishes to address on

this appeal.

5. The Substantive Issues

5.1 From that analysis it follows that there are questions as to whether an appeal lies at all in the circumstances of this case, both as

a matter of Irish and European law. Furthermore, there are questions as to the nature of any appeal which may be found to exist by

particular reference to the type of order which this Court could make in the event that an appeal was entertained and was ultimately

successful.

5.2 However, it is also important to note the substantive issues which Facebook wishes to raise in the event that this Court is

persuaded both that an appeal is or may be possible as a matter of law and considers that the case may meet the constitutional

threshold for leave to appeal. It is necessary, therefore, to say something about the substantive issues which might arise.

5.3 Facebook wishes to invite this Court to review certain important findings of fact made by the High Court in its judgment and which

informed the decision of the High Court to refer certain questions to the CJEU. In substance, Facebook seeks to invite this Court to

overturn (whether in a “hard” or in a “soft” way) certain findings of fact made by the trial judge. In reality, the arguments of principle

which arise concerning the extent to which it is possible to distinguish Campus Oil (or even to say that it is wrong) or concerning the

scope of any appeal which might be permissible, are only a means to the end of arguing that this Court should embark on a

consideration of the facts. In that latter context, it should, of course, be noted that Facebook accepts, as it must, that there are

significant limitations on the extent to which facts can be re-visited in the Irish appellate process having regard to the principles

identified in Hay v. O’Grady [1992] 1 I.R. 210 and subsequent jurisprudence. I do not understand Facebook to seek to invite this

Court to depart from that established jurisprudence, so that any references in this judgment to an appeal against the findings of fact

of the trial judge should be taken to refer to an appeal within the significant limitations in that regard which the Irish jurisprudence

imposes.

5.4 Before going on to consider whether it is appropriate to grant leave to appeal in this case and, if so, on what basis, it may also be

appropriate briefly to touch on the question of the relevance, so far as the reference to the CJEU is concerned, of the findings of fact

of the High Court.

6. The Relevance of the Findings of Fact

6.1 There are a number of unusual features to this type of case. Ordinarily it might be said that a question concerning the validity of

a measure or instrument of the European Union might be most likely to arise as an incidental question to other types of litigation

which might arise before national courts. For example, the rights or obligations of the State or its agencies in relation to private

individuals might be governed by a measure or instrument of Union law such that those rights and obligations might be different in the

event that the measure or instrument concerned is found to be invalid. Likewise, it is possible that a measure, such as a regulation,

which impacts on the rights of individuals as and between themselves might have its validity questioned in private litigation such that

the result of that litigation might be different depending on whether the Union regulation withstood challenge.

6.2 However, here the form of action is one which would not ordinarily be known in Irish law but which derives from the decision of

the CJEU in Case C-362/14 Schrems (“Schrems (No.1)”)

6.3 In its judgment in that case the CJEU said the following at paragraph 65:-

“In the converse situation, where the national supervisory authority considers that the objections advanced by the

person who has lodged with it a claim concerning the protection of his rights and freedoms in regard to the processing of

his personal data are well founded, that authority must, in accordance with the third indent of the first subparagraph of

Article 28(3) of Directive 95/46, read in the light in particular of Article 8(3) of the Charter, be able to engage in legal

proceedings. It is incumbent upon the national legislature to provide for legal remedies enabling the national supervisory

authority concerned to put forward the objections which it considers well founded before the national courts in order for

them, if they share its doubts as to the validity of the Commission decision, to make a reference for a preliminary ruling

for the purpose of examination of the decision’s validity.”

6.4 It follows that these proceedings might well be described as being sui generis so far as the Irish legal system is concerned, but

they are clearly mandated by the decision of the CJEU in Schrems (No. 1) and no question, therefore, arose as to whether these

proceedings could be maintained in the form in which they were.

6.5 The precise status of the findings of fact of the High Court so far as the issue which the CJEU will need to consider on the

reference is not absolutely clear. The questions referred by the High Court were the following:-

1. In circumstances in which personal data is transferred by a private company from a European Union (EU) member

state to a private company in a third country for a commercial purpose pursuant to Decision 2010/87/EU as

amended by Commission Decision 2016/2297 (‘the SCC Decision’) and may be further processed in the third country

by its authorities for purposes of national security but also for purposes of law enforcement and the conduct of the

foreign affairs of the third country, does EU law (including the Charter of Fundamental Rights of the European Union

(‘the Charter’)) apply to the transfer of the data notwithstanding the provisions of Article 4(2) of TEU in relation to

national security and the provisions of the first indent of Article 3(2) of Directive 95/46/EC (‘the Directive’) in

relation to public security, defence and State security?

2. (1) In determining whether there is a violation of the rights of an individual through the transfer of data from the

EU to a third country under the SCC Decision where it may be further processed for national security purposes, is

the relevant comparator for the purposes of the Directive:

a) The Charter, TEU, TFEU, the Directive, ECHR (or any other provision of EU law); or

b) The national laws of one or more member states?

(2) If the relevant comparator is b), are the practices in the context of national security in one or more member

states also to be included in the comparator?

3. When assessing whether a third country ensures the level of protection required by EU law to personal data

transferred to that country for the purposes of Article 26 of the Directive, ought the level of protection in the third

country be assessed by reference to:

a) The applicable rules in the third country resulting from its domestic law or international commitments,

and the practice designed to ensure compliance with those rules, to include the professional rules and

security measures which are complied with in the third country;

or

b) The rules referred to in a) together with such administrative, regulatory and compliance practices

and policy safeguards, procedures, protocols, oversight mechanisms and non judicial remedies as are in

place in the third country?

4. Given the facts found by the High Court in relation to US law, if personal data is transferred from the EU to the

US under the SCC Decision does this violate the rights of individuals under Articles 7 and/or 8 of the Charter?

5. Given the facts found by the High Court in relation to US law, if personal data is transferred from the EU to the

US under the SCC Decision:

a) Does the level of protection afforded by the US respect the essence of an individual’s right to a

judicial remedy for breach of his or her data privacy rights guaranteed by Article 47 of the Charter?

If the answer to a) is yes,

b) Are the limitations imposed by US law on an individual’s right to a judicial remedy in the context of US

national security proportionate within the meaning of Article 52 of the Charter and do not exceed what

is necessary in a democratic society for national security purposes?

6. (1) What is the level of protection required to be afforded to personal data transferred to a third country

pursuant to standard contractual clauses adopted in accordance with a decision of the Commission under Article

26(4) in light of the provisions of the Directive and in particular Articles 25 and 26 read in the light of the Charter?

(2) What are the matters to be taken into account in assessing whether the level of protection afforded to data

transferred to a third country under the SCC Decision satisfies the requirements of the Directive and the Charter?

7. Does the fact that the standard contractual clauses apply as between the data exporter and the data importer

and do not bind the national authorities of a third country who may require the data importer to make available to

its security services for further processing the personal data transferred pursuant to the clauses provided for in the

SCC Decision preclude the clauses from adducing adequate safeguards as envisaged by Article 26(2) of the

Directive?

8. If a third country data importer is subject to surveillance laws that in the view of a data protection authority

conflict with the clauses of the Annex to the SCC Decision or Article 25 and 26 of the Directive and/or the Charter,

is a data protection authority required to use its enforcement powers under Article 28(3) of the Directive to

suspend data flows or is the exercise of those powers limited to exceptional cases only, in light of Recital 11 of the

Directive, or can a data protection authority use its discretion not to suspend data flows?

9. (1) For the purposes of Article 25(6) of the Directive, does Decision (EU) 2016/1250 (4) (‘the Privacy Shield

Decision’) constitute a finding of general application binding on data protection authorities and the courts of the

member states to the effect that the US ensures an adequate level of protection within the meaning of Article

25(2) of the Directive by reason of its domestic law or of the international commitments it has entered into?

(2) If it does not, what relevance, if any, does the Privacy Shield Decision have in the assessment conducted into

the adequacy of the safeguards provided to data transferred to the United States which is transferred pursuant to

the SCC Decision?

10. Given the findings of the High Court in relation to US law, does the provision of the Privacy Shield ombudsperson

under Annex A to Annex III of the Privacy Shield Decision when taken in conjunction with the existing regime in the

United States ensure that the US provides a remedy to data subjects whose personal data is transferred to the US

under the SCC Decision that is compatible with Article 47 of the Charter?

11. Does the SCC Decision violate Articles 7, 8 and/or 47 of the Charter?

6.6 Each of those questions is, in substance, concerned with the ultimate issue of whether the relevant instruments are valid. The

question of the validity of those instruments is not, of course, a matter of pure law but rather is dependent at least in part on the

facts concerning the way in which data transmitted to the United States can be processed or accessed in that jurisdiction. The

finding of invalidity in Schrems (No. 1) was itself dependent on an assessment by the CJEU of the facts and the application of legal

principles to the facts as determined. It would appear that the CJEU may have had regard to some materials or facts which did not

derive directly from the reference document or the findings of the Irish High Court in that case. There is, therefore, a certain lack of

clarity about the precise extent to which the findings of fact of the Irish High Court in this case may impact on the assessment of

validity which the CJEU may have to conduct as a result of the reference.

6.7 Indeed, in that context, it is worth noting that counsel for Facebook indicated that one of the matters that it is intended to

canvass before the CJEU is the extent to which the CJEU should itself consider any relevant evidence or materials for the purposes of

reaching its own conclusion on any facts relevant to its assessment of validity.

6.8 That being said, it would be difficult to consider that the CJEU would not at least have regard (and potentially significant regard)

to the findings of fact of a referring court.

6.9 Indeed, it must be observed that this analysis gives rise to an additional unusual feature of this type of case. Ordinarily the CJEU

has no role in determining the facts, which remain the preserve of national courts and in particular the referring court. The facts as

found by a referring court and included in the reference document may be necessary to put the legal issues which arise into context

and to demonstrate the admissibility of the reference having regard to the principle that the CJEU does not offer advisory opinions.

However, ordinarily, it will remain a matter for the referring court to determine the ultimate result of the case in the light of the facts

which it has found and applying the law as determined by the CJEU to those facts.

6.10 The extent to which it may be either necessary or appropriate for the CJEU to go beyond the facts found by a referring court in

what might be described as a “pure” validity case such as this is a matter which is by no means clear. However, as already noted,

this Court must, at least for the purposes of this leave application, proceed on the basis that the facts found by the High Court have

the potential to influence the assessment by the CJEU of the validity question which has been referred to it.

6.11 It seems to me to follow that Facebook at least has a legitimate interest in seeking to invite this Court to review the facts as

found by the High Court subject to the legal issues which arise concerning the admissibility of any appeal to this Court and the type

of appeal which might be found to be maintainable. The facts have the potential at least to influence the ultimate result of these

proceedings.

6.12 Against the backdrop of those general observations I propose to turn to the question of whether it is appropriate to grant leave

to appeal in this case.

7. Should Leave be Granted

7.1 It would clearly be inappropriate for this Court to grant leave to appeal in a case where, clearly, no appeal lay. But, as the brief

analysis of Irish and Union law set out earlier demonstrates, there can be cases where there may be a significant dispute as to

whether an appeal is permissible either generally or in respect of some aspect of a case.

7.2 In my view it is not possible to adopt a hard and fast rule as to the proper approach which the Court should adopt in such

circumstances. It may be that, in a case where the issue of whether an appeal lies is straightforward, the Court may consider it

appropriate to resolve that question on the application for leave and to decline leave, even if it would otherwise have been justified, if

persuaded that no appeal is possible. On the other hand, where there are real issues of substance involved in the question of whether

an appeal lies in the first place, it may be more appropriate to grant leave to appeal and to include as one of the issues to be

determined on the appeal the question of whether an appeal lies in respect either of some or of all of the issues sought to be

canvassed.

7.3 Nevertheless, where it is clear that no appeal lies then the more appropriate course of action would obviously be to refuse leave

on that ground alone.

7.4 The first question which must be addressed, therefore, is as to whether it is clear that no appeal lies in the circumstances of this

case. In my view there is a stateable issue as to the definition of the precise parameters of the Campus Oil jurisprudence and in

particular whether it applies to a case such as this where it is possible that findings of fact made by a trial court may, in practice,

become immune from review because of the unusual nature of the proceedings and the consequent fact that the final decision in

substance will be made by the CJEU. The issue of what may be an appealable decision for Irish constitutional purposes may also arise

in that context. For the purposes of this judgment it is unnecessary to say anything about the strengths and weaknesses of the

arguments on either side of that question. It is only necessary to record that it is arguable that Facebook may be entitled to pursue

an appeal.

7.5 In saying that it is also important to acknowledge the closely connected question as to the type of appeal which might be

permitted having regard both to the Irish constitutional jurisprudence and that of the CJEU.

7.6 Given my view that there are issues which require to be determined both as to whether an appeal lies at all and, if so, the type of

appeal which may be permitted, it seems clear that the issues thus raised are of very considerable significance affecting as they do

the proper interaction of the Irish Constitution with the reference procedure set out in Article 267. Those issues clearly meet the

constitutional threshold for leave to appeal and are of particular general importance. It is next necessary to turn to the factual

issues.

8. The Factual Questions

8.1 Two issues arise here. The first is as to whether, as was argued on behalf of the Data Protection Commissioner and Mr. Schrems,

no arguable basis has been put forward by Facebook for suggesting that this Court could reverse the findings of fact under challenge

having regard to the Hay v. O’Grady jurisprudence.

8.2 That issue, in turn, touches on the question of the proper approach of this Court in a case such as this where what is involved is

an assessment substantially of expert evidence and where that expert evidence, in turn, concerns the law of another country.

Against that background, and in the context of the limited scope which this Court has to review the merits of the factual issues in an

application for leave to appeal, I am not satisfied that it can be said that the arguments which Facebook wish to advance are not

arguable. I do so, as I have indicated, on the basis of the limited review which is appropriate at this stage and entirely without

prejudice to the merits, one way or the other, of any arguments which may be made.

8.3 However, I am satisfied that this Court should proceed on the basis that it is at least arguable that Facebook might be in a

position to persuade this Court that some or all of the facts under challenge should be reversed.

8.4 The second question concerns whether grounds relating to facts, such as those which Facebook seeks to argue, meet the

constitutional threshold. Ordinarily questions of fact would not be considered to give rise to a matter of general public importance.

However, this Court has on certain occasions determined that some additional issues might be raised on appeal under the “interests of

justice” alternative criteria where those issues might have to be dealt with on appeal in any event (whether in the Court of Appeal or

this Court) and where it was expedient that all issues involved in the case should be tried in one court. The possibility of such an

approach was highlighted in the judgment of this Court in PWC.

8.5 I am satisfied that this is such a case. The issues which arise in these proceedings are of very great significance both nationally

and internationally. It is in the interests of justice generally, and in the interests of the parties, that clarity be brought to these

matters as quickly as possible, consistent with the matters being dealt with in an appropriate fashion. Splitting up issues of fact from

issues of law would not make sense in this case.

8.6 Obviously one theoretical way in which the issues which might potentially arise in this case might ultimately be resolved would be

for this Court to confine itself to considering the important issues of principle concerning whether an appeal lies and, if so, the type of

appeal which might be permitted and leaving over any questions of fact to be dealt with, if at all, by the Court of Appeal within the

parameters of whatever type of appeal, if any, that this Court determined was possible. But such a splitting up of the issues would

not be conducive either to the effective use of court time or to achieving a timely resolution of these proceedings having regard to

the fact that a clock, is, as it were, ticking in Luxembourg. For those reasons I am satisfied that it is in the interests of justice that

the issues of fact which arise in this case should be dealt with in the same appeal as the important issues of law which arise

concerning the appellate jurisdiction of this Court in cases such as this. The final issue which needs to be considered is whether the

criteria for permitting an appeal direct to this Court have been made out.

9. Should there be Leapfrog Leave?

9.1 As already identified, the principles applicable to the grant of leapfrog leave have been explored by this Court in a number of

determinations but in particular in Wansboro. I have already set out the reasons why I consider that it is expedient that the important

issues of law which arise on this appeal should be considered as part of the same appeal which deals with the questions of fact. This

Court has already embarked on a consideration, at least tentatively, of some of the legal issues which arise. In those circumstances,

and having regard to the undoubted urgency with which these proceedings should be brought to a conclusion, it seems to me that

the Wansboro principles point towards allowing leapfrog leave.

9.2 I would, therefore, propose that this Court grant leave to appeal on both the legal and factual issues identified, on the basis that

the legal issues meet the general importance criterion and the factual issues meet the interests of justice requirement. The

exceptional circumstances warranting a direct appeal are also, in my view, met on the facts of this case.

10. Conclusions and Directions

10.1 For the reasons set out earlier I would propose that the Court should grant leave to appeal. As is now common practice I would

grant leave to appeal on all of the issues raised on behalf of Facebook but would leave the question of the refinement of those issues

to be considered by the case management judge in due course. In that context I would, in particular, draw attention to the fact that,

at least on one view, the proposed appeal appears to suggest that, if successful, this Court would be invited to reverse the decision

of the trial judge to make a reference in the first place and also, at least to an extent, to alter the questions as formulated by the

trial judge. It was my understanding from the oral submissions made on behalf of Facebook that it was not asserted that this Court

could have the power to actually reverse the decisions of the High Court in that way having regard to the Cartesio jurisprudence. It is

important, therefore, that the precise type of order which Facebook intends to urge that this Court should make in the event of a

successful appeal should be clearly identified in the written submissions filed by Facebook for the avoidance of any doubt. Any issues

arising in that regard can, I would propose, be dealt with by the case management judge.

10.2 Clearly the whole urgency and importance of this appeal stems from the fact that it is sought to obtain orders which may have

an impact on the ultimate resolution of the reference before the CJEU. As already noted there are, of course, issues as to whether

any such orders are permissible as a matter of national and Union law. However, if and to the extent that such orders may be

permissible, and if Facebook persuades this Court on the merits that such orders should be made, then same could only be of value if

this Court’s judgment is delivered well in advance of the likely hearing of the reference before the CJEU.

10.3 With that in mind, I would propose that the Court should direct that Facebook file any Notice of Intention to Proceed within 7

days and written submissions by the 14th September with replying submissions on behalf of the Data Protection Commissioner and

also on behalf of Mr. Schrems to be filed by Friday 5th October. Thereafter the matter will be put in for early case management with a

view to the appeal being made ready for hearing before the end of the year. The parties should keep that timeframe in mind in making

preparation for compliance with the sort of directions for the preparation of the appeal which are likely to be made at the case

management hearing.

10.4 It will be for the case management judge to adopt appropriate measures to ensure that there is no unnecessary repetition of the

submissions already made on some of the issues.