3 1. Introduction 1.
On 16th July, 2020, the Court of Justice of the European Union (“CJEU”) delivered its
landmark judgment in Case C-311/18 Data Protection Commissioner v. Facebook Ireland Ltd and Maximilian Schrems (commonly now referred to as “Schrems II”) on a reference from the High Court (Costello J.). This case is about what happened after that judgment. 2.
Following the judgment in Schrems II, the Data Protection Commission (“DPC”)
decided to commence an “own volition” inquiry under s. 110 of the Data Protection Act, 2018 (the “2018 Act”) to consider whether the actions of Facebook Ireland Ltd (“FBI”) in making transfers of personal data relating to individuals in the European Union/European Economic Area are lawful and whether any corrective power should be exercised by the DPC in that regard. The DPC decided to commence the inquiry by issuing a “Preliminary Draft Decision” (“PDD”) to FBI on 28th August, 2020. 3.
FBI took issue, on several grounds, with the decision by the DPC to commence the
inquiry by means of the PDD and with the procedures adopted by the DPC. Mr. Schrems, who had made a complaint and a reformulated complaint to the statutory predecessor of the DPC, the Data Protection Commissioner, under the Data Protection Act, 1988 (the “1988 Act”), which had ultimately led to the reference by the High Court to the CJEU leading to the judgment in Schrems II, also took issue with the DPC’s decision and procedures on a number of grounds, some of which overlapped to an extent with the grounds advanced by FBI. 4.
Both FBI and Mr. Schrems brought judicial review proceedings in respect of the PDD
and the procedures adopted by the DPC. Each applied successfully to be joined as a notice party to the other’s judicial review proceedings. Both proceedings were entered in the Commercial List. FBI’s proceedings were heard by me over five days between 15th December and 21st December, 2020, following which they were adjourned to allow further affidavit evidence to be provided by the DPC. Mr. Schrems’ proceedings were due to
