Thursday 19 October 2017

US demands role in Facebook data transfers EU case

'Ms Justice Caroline Costello heard submissions yesterday about preparing questions for determination by the CJEU.' Photo: AFP/Getty Images
'Ms Justice Caroline Costello heard submissions yesterday about preparing questions for determination by the CJEU.' Photo: AFP/Getty Images

Tim Healy

The US government has said it is "critically important" its views are taken into account when the High Court finalises questions to be decided by the Court of Justice of the EU on the validity of EU-US data transfer channels.

The referral was granted in the Commissioner's proceedings against Facebook Ireland and Austrian lawyer Max Schrems. The case was rooted in a complaint by Mr Schrems about transfer of his data by Facebook to its US parent.

Facebook is also considering seeking an appeal against the Irish court's decision to ask the CJEU to determine whether European Commission decisions approving use of the channels, known as Standard Contractual Clauses, are valid or not.

Ms Justice Caroline Costello heard submissions yesterday about preparing questions for determination by the CJEU.

That arises from her significant judgment granting Data Protection Commissioner Helen Dixon's application for a referral. The case, the judge noted, has potentially huge implications for billions of euro worth of EU-US trade and data privacy rights of millions of EU citizens as well as their safety and security .

The judge made the referral for reasons including she agreed with the Commissioner there are "well founded" grounds for believing three European Commission decisions approving data transfer channels known as Standard Contractual Clauses (SCCs) are invalid. That was due to the absence of an effective remedy in the US for an EU citizen who alleged breach of data privacy rights.

Eileen Barrington SC, for the US government, said it is anxious to have its views on the questions considered for reasons including to ensure the description of US law in the final High Court referral order is "factually accurate".

She was also concerned the Commissioner appeared of the view the US government is not a party to the proceedings before the CJEU.

Lawyers for Digital Europe, the Business Software Alliance and Washington-based Electronic Privacy Centre - all legal assistants to the court in the Commissioner's case - said they also wished to be heard on the questions.

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