Data Protection Commissioner v Facebook Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IESC 38
• Court: Supreme Court
• Docket Number: Record No: 2018/68
• Date: 31 July 2018

[2018] IESC 38

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

O'Donnell Donal J.

Dunne J.

Charleton J.

Finlay Geoghegan J.

Record No: 2018/68

Between/

The Data Protection Commissioner & Anor

Plaintiff/First Named Respondent

AND

Facebook Ireland Ltd

Defendant/Appellant

AND

Maximillian Schrems

Defendant/Second Named Respondent

Leapfrog appeal – Constitutional threshold – Exceptional circumstances – Appellant seeking leave to appeal to the Supreme Court directly from the High Court – Whether an appeal to the Supreme Court met the constitutional threshold

Facts: The defendant/appellant, Facebook Ireland Ltd, applied for leave to appeal to the Supreme Court directly from the High Court. The appellant suggested that an appeal to the Supreme Court met the constitutional threshold for leave to bring a direct or leapfrog appeal from the decision of the High Court (Costello J) delivered on the 3rd October 2017. The plaintiff/first respondent, the Data Protection Commissioner, and the defendant/second respondent, Mr Schrems, opposed the grant of leave.

Held by Clarke CJ that the Court should grant leave to appeal on both the legal and factual issues identified, on the basis that the legal issues met the general importance criterion and the factual issues met the interests of justice requirement. The exceptional circumstances warranting a direct appeal were also, in Clarke CJ's view, met on the facts of the case.

Clarke CJ held that leave to appeal would be granted.

Leave to appeal granted.

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,...