9. Procedural Background

when dealing with the point later in the judgment, in my view, there was no basis whatsoever

for the allegation of abuse of process or improper purpose.

9. Procedural Background

97. FBI applied to and obtained leave to bring its judicial review proceedings from the

High Court (Meenan J.) on 14th September, 2020. Its statement of grounds was supported by

an affidavit sworn by Ms. Yvonne Cunnane on 10th September, 2020. The Court ordered that

there be a stay in the taking of any further steps in the inquiry pending the determination of

the proceedings.

98. On the DPC’s application, the proceedings were entered in the Commercial List on 25th September, 2020. The DPC delivered its statement of opposition on 23rd October, 2020.

It was verified by an affidavit sworn by Ms. Dixon on the same date.

99. In the meantime, Mr. Schrems obtained leave to bring his judicial review proceedings

from the High Court (Barr J.) on 12th October, 2020. Those proceedings were entered in the

Commercial List on 19th October, 2020, on Mr. Schrems’ application. Mr. Schrems applied to

be joined as a notice party to FBI’s proceedings on 14th October, 2020. FBI applied to be

joined as a notice party to Mr. Schrems’ proceedings on 22nd October, 2020. Ultimately, it

was agreed that each of FBI and Mr. Schrems would be joined as a notice party to the other’s proceedings and orders in those terms were made on 29th October, 2020.

100. Mr. Schrems delivered a statement of opposition in FBI’s proceedings on 3rd

November, 2020 and swore an affidavit verifying that statement on 5th November, 2020.

101. Ms. Cunnane swore a replying affidavit on behalf of FBI on 11th November, 2020.

That was the last of the affidavits sworn in these proceedings until a number of further

affidavits were sworn at the direction of the court in the break in the proceedings between 21st

December, 2020 and 13th January, 2021. An affidavit was sworn by Colum Walsh on 23rd

December, 2020 on behalf of the DPC which provided information concerning the number of

complaints based and own-volition inquiries in relation to cross-border processing issues. Mr.

Walsh confirmed that the inquiry the subject of these proceedings is the only cross-border

inquiry commenced by the DPC by means of the issuing of a preliminary draft decision in

substitution for a “notice of commencement of inquiry” letter. A further affidavit was sworn in response by Ms. Cunnane on 11th January, 2021 and a second affidavit was sworn by Mr.

Walsh on 15th January, 2021 in response to a direction made by the Court on 13th January,

2021. It will be necessary to refer to the information contained in those affidavits when

dealing with a number of the grounds of challenge advanced by FBI.

102. A further significant development in the proceedings occurred with an exchange of

correspondence between MHC and Philip Lee in late October/early November, 2020. MHC

wrote to Philip Lee on 29th October, 2020 seeking certain information, having considered the

DPC’s statement of opposition and Ms. Dixon’s affidavit. MHC asserted that the DPC was required to provide the information on foot of its duty of candour. In a series of questions set

out in the letter, MHC asked the DPC:-

(1) Whether the DPC had commenced any inquiries pursuant to s. 110 of the 2018

Act since the publication of the DPC’s 2018 Annual Report that did not

involve a commencement/notification phase, an information gathering/inquiry

phase and a decision-making phase;

(2) Whether the DPC had commenced any other inquiries pursuant to s. 110 of the

2018 Act since the publication of the 2018 Annual Report by way of a

preliminary draft decision that made (even preliminary) findings of

infringement of the GDPR and/or that proposed corrective measures;

(3) Whether the DPC had commenced any other inquiries pursuant to s. 110 of the

2018 Act where a single person conducted the information gathering/inquiry

and the decision-making phases;

(4) Whether the DPC had commenced any own-volition inquiries into other

regulated entities pursuant to s. 110 of the 2018 Act in relation to EU-US data

transfers following the judgment in Schrems II apart from the present inquiry

involving FBI;

(5) The basis on which it was “anticipated” by the DPC that it would be in a

position to consider and take into account FBI’s submissions in response to the PDD within 21 days and why that anticipated timing was disclosed to Mr.

Schrems but not to FBI; and

(6) Whether the DPC engaged with the EDPB on the proposed guidance to be

issued by that body and the nature of that engagement as well as details as to

the DPC’s understanding concerning the timing of such guidance. 103. Philip Lee replied on behalf of the DPC on 5th November, 2020. It queried the legal

basis on which the questions were raised by MHC and disputed the contention that the

questions arose from the statement of opposition. It further asserted that FBI had already

some of the information sought. Philip Lee asserted that the DPC was satisfied that it had

complied fully with its duty of candour and that the information sought was irrelevant to the

PDD and to the matters raised in the proceedings. It then purported to respond to the

questions raised but, in reality, in respect of each question, it merely asserted that the

information sought was not relevant to the issues raised in the proceedings or proceeded on

the basis of an incorrect premise. I would observe at this point that had the information

sought in the MHC letter of 29th October, 2020, at least that summarised at (1) to (3) above,

been provided at the time, it may well have obviated the need for the further affidavits which

the Court directed to be sworn in December, 2020/January, 2021. In my view, it would have

been much better if the DPC had provided the information sought at the time rather than

maintaining that it was irrelevant or based on an incorrect premise. It seems to me that most,