US says its views must be heard in legal challenge to EU-US data sharing


The US government has intervened to argue that its “critically important,” that its views are heard when a Dublin court raises questions over the legality of data transfers between the EU and the US with the European Court of Justice.

The Irish High court ruled on 3rd October that the EU Court of Justice should decide on the validity of Standard Contractual Clauses (SSCs) – widely used by businesses to share data with the US – following a case brought by the Irish Information Commissioner against Facebook and Austrian lawyer Max Schrems.

The case has potentially huge implications for billions of Euros worth of EU-US trade and the data privacy rights of millions of EU citizens, and their safety and security, Justice Caroline Costello wrote in a 152 page judgement published this week.

The US government’s move is the latest twist in a long running legal challenge, originally brought by Austrian lawyer Max Schrems, against Facebook in 2013  which succeeded in bringing down the EU-US Safe Harbour agreement two years later.

In a hearing in the Dublin court today, Eileen Barrington, representing the US government, said the US had reviewed this week’s judgement and had some “issues” with the way it described US law.

The Dublin court will submit a series of questions to the EU Court of Justice (CJEU) on the validity of EU-US data sharing clauses, once they are agreed by the parties in the case.

Barrington told the court that the US was anxious to have its views on the questions heard to ensure that their description of US law is “factually accurate.”

She said she was concerned that the Irish Data Protection Commissioner, Helen Dixon, appeared to take the view that that the US government was not a party to the proceedings before the CJEU.

It is “critically important” that the US government’s views are taken into account in finalising the questions, she said.

Michael Collins, representing the Irish Information Commissioner, said there should be no attempts to “re-litigate the matter,” but agreed that factual errors court be corrected.

Lawyers for the Information Commissioner – and Facebook and Schrems who are defendants in the case- will attempt to agree on the wording of questions for the European Court, he said.

It would be difficult enough for all three parties to agree the wording and could be “next to impossible” if every party joined to the case – which include Digital Europe, the Business Software Alliance, and the Electronic Privacy Centre – took part in their drafting.

Justice Caroline Costello, hearing submissions today, said that the three parties should try to agree questions, but could share the drafts with the other joined organisations, who could then give their views to the court.

The judge will make the final decision, she said.

Paul Gallagher, representing Facebook, said the company is considering appealing against the Dublin court’s decision to refer EU-US data sharing to the European Court. The company planned to “leapfrog” the Court of Appeal and go directly to the Supreme Court.

The Supreme Court, would have the final say whether to hear the case, he said.

Read More about the Dublin legal ruling on EU-US data transfers

A High Court judge in Dublin has asked the Court of Justice of the EU to decide on the validity of EU-US data transfers, in a case that could have implications for trade between the EU and the US, and the privacy of millions of EU residents.

Businesses face new uncertainty over their ability to share data with the US, as Europe’s highest court reassesses the legality of the EU’s model data-sharing contracts.

The European Court of Justice declares the Safe Harbour framework invalid as a mechanism to legitimise transfers of personal data from the EU to the US

Irish data protection commissioner Helen Dixon neatly avoids having to deal with the US surveillance of Facebook users in Europe by referring a complaint by Austrian lawyer Max Schrems to the European Court of Justice

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