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

The US government says it ‘has issues’ with an Irish High Court ruling, which will test the legality of EU-US data transfers as Facebook considers an appeal to Supreme Court

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

The Irish High court ruled on 3 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, safety and security of millions of EU citizens, 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, which was originally brought by Austrian lawyer Max Schrems against Facebook in 2013 and succeeded in bringing down the EU-US Safe Harbour agreement two years later.

In a hearing in the Dublin court on 11 October, 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.

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

Michael Collins, representing the Irish Information Commissioner, said there should be no attempts to “re-litigate the matter”, but agreed that factual errors should 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 it could be “next to impossible” if every party– which includes Digital Europe, the Business Software Alliance, and the Electronic Privacy Centre – took part in the drafting.

Justice Caroline Costello, hearing submissions on 11 October, said the three parties should try to agree on questions, but could share the drafts with the other joined organisations to then give their views to the court. The judge will make the final decision, she added.

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, which would then have the final say whether to hear the case, said Gallagher.

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So the overwheening aspirations of the CJEU may have been brought to heel before Brexit. Once we have Brexited UK courts can revert to the pre-EU position whereby judges can take into account precedents from around the world when interpreting cases where UK status law is unclear. We will escape from the risk they will be over-ruled by a panel of CJEU judges which may include laymen and former politicians with no legal training. Whether they will more of less willing to take US multii-nationals is another matter.  
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