Barth O'Neill v The Revenue Commissioners

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 22 October 2024
• Neutral Citation: [2024] IEHC 726
• Docket Number: Record No. 2021/500JR

Between/

Barth O'Neill

Applicant

and

The Revenue Commissioners

Respondent

[2024] IEHC 726

Record No. 2021/500JR

AN ARD-CHÚIRT

THE HIGH COURT

Preliminary reference – Necessity – Article 267 of the Treaty on the Functioning of the European Union – Applicant seeking a preliminary reference to the Court of Justice of the European Union – Whether a decision of the Court of Justice of the European Union on the questions posed was necessary

Facts: The applicant, Mr O’Neill, challenged the refusal of the respondent, the Revenue Commissioners, to erase data in relation to his 2007 tax return, pursuant to the right to erasure contained in Article 17 of the General Data Protection Regulation (GDPR). In O’Neill v Revenue Commissioners [2024] IEHC 337, Bradley J refused the applicant’s interlocutory application seeking either: (a) an order that his substantive judicial review proceedings be heard otherwise than in public; or (b) an order directing the anonymisation of that challenge. It was agreed by both parties that any intended application for a preliminary reference to the Court of Justice of the European Union (CJEU) pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU) would be left over until judgment was delivered on the applicant’s in camera/anonymisation application. The applicant then confirmed that he wished to make an Article 267 reference.

Held by Bradley J that the applicant had not established “strong reasons” to revisit the refusal of his interlocutory application in O’Neill v Revenue Commissioners [2024] IEHC 337 to have his substantive judicial review proceedings either heard in camera or anonymised, citing the judgments of the High Court and Supreme Court in Re McInerney Homes Ltd [2011] IEHC 25, [2011] IESC 31. Second, Bradley J held that the applicant had not established that a manifest error was made in the judgment which was so fundamental as to have an effect on the decision so as to amount to a denial of justice and nor had he referred to new facts which would have a significant consequence on the findings made in O’Neill v Revenue Commissioners [2024] IEHC 337, citing Bank of Ireland Mortgage Bank v Hade [2022] IEHC 728. Third, Bradley J noted that the five questions proposed by the applicant arose in the context of an interlocutory application. Bradley J held that a decision of the CJEU on the questions posed was simply not necessary. Fourth, Bradley J noted that, the applicant had described the proposed questions, upon which he sought a referral pursuant to Article 267 TFEU, as raising the issue of the right in EU Law to have his proceedings anonymised in the context of a right to be forgotten case; however, the applicant had not set out any basis to persuade Bradley J to revisit his determination.

Bradley J made an order: (i) refusing the applications requesting the revisitation of matters determined in O’Neill v Revenue Commissioners [2024] IEHC 337; and (ii) refusing the applicant’s request for a reference to the CJEU pursuant to Article 267 TFEU.

Application refused.

(NO.2)

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 22 ^nd day of October 2024

INTRODUCTION

Preliminary

1 This application arises from my judgment in O'Neill v Revenue Commissioners [2024] IEHC 337, where I refused the Applicant's interlocutory application seeking either: (a) an order that his substantive judicial review proceedings be heard otherwise than in public ( i.e., in camera); or (b) an order directing the anonymisation of that challenge.

2 The substantive proceedings concern the Applicant's challenge to the Respondent's refusal to erase data in relation to his 2007 tax return, pursuant to the right to erasure (“the right to be forgotten”) contained in Article 17 of the General Data Protection Regulation (“GDPR”).

3 As indicated at the end of the judgment in O'Neill v Revenue Commissioners [2024] IEHC 337, at paragraph 66, it was agreed by both parties during the hearing of that application in April 2024 that any intended application for a preliminary reference to the Court of Justice of the European Union (“CJEU”) pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) would be left over until judgment was delivered on the Applicant's in camera/anonymisation application.

4 The Applicant then confirmed that he wished to make an Article 267 reference and the parties filed submissions in that regard with the matter being heard before me on Tuesday 17 ^th September 2024.

5 This second judgment now addresses that application.

CONTEXT

6 No application for a preliminary reference was sought by the Applicant in any of the following documentation: the Applicant's Statement of Grounds; the Notices of Motion dated 3 ^rd June 2021 and 25 ^th October 2022; the Applicant's written submissions on the interlocutory application seeking either that the substantive judicial review proceedings be heard in camera or directing their anonymisation.

7 The first occasion on which the Applicant indicated a possible intention to seek a preliminary reference was at the conclusion of his oral submissions on the first day of the hearing. Overnight, between the first and second day of the hearing, the Applicant furnished the following draft, setting out:

“ That in light of Article 6(3) of the TEU, 16 of the TFEU, Art 7, 8,52(3) of the Charter of the Fundamental rights and in particular Article 17 of Regulation (EU) 2016/679 that any person seeking to invoke the provisions of the said article before any Court or Tribunal has, in order to have an effective remedy as per Art 47 of the TFEU, Art 13 of the ECHR, and Art 79 Regulation (EU) 2016/679 a right to have the proceedings anonymised before any Court or Tribunal.”

8 As stated earlier, it was in fact agreed by both parties during the hearing of the initial application on 11 ^th and 12 ^th April 2024 that any intended application for an Article 267 reference would be left over until judgment was delivered on the Applicant's in camera/anonymisation interlocutory application. As referred to by the Applicant in his written submissions, and as mentioned previously, that was reflected in paragraph 66 of my judgment in O'Neill v Revenue Commissioners [2024] IEHC 337.

9 When the matter came before me on 12 ^th June 2024, after judgment had been delivered on 31 ^st May 2024, the Applicant initially sought to move his preliminary reference application at that point. However, it was agreed that written submissions would first be filed and the matter would be adjourned for hearing to Tuesday 17 ^th September 2024.

DISCUSSION & DECISION

10 In summary, Article 267 TFEU provides that if a court considers that a decision on a question or questions asked is necessary to enable that court to give judgment, it can request the CJEU to give a ruling on that question(s).

11 The fact that judgment has been delivered in O'Neill v Revenue Commissioners [2024] IEHC 337 on the Applicant's interlocutory application which sought that his substantive judicial review proceedings be heard in camera or that they be anonymised, poses an insurmountable difficulty in seeking a preliminary reference on that application.

12 In order to circumvent that difficulty, the Applicant is effectively forced to argue either: (a) that I should revisit the judgment delivered on 31 ^st May 2024 in which I refused his interlocutory application, and in the course of that reconsideration, I should make a reference on the questions now sought to be referred; or (b) in the period between the judgment and the final orders I should make a reference on the questions which he has now posed.

13 In his written submissions, the Applicant submitted that his proposed questions raised the issue of the right in EU Law to have his proceedings anonymised in...