The High Court in Schrems v Data Protection Commissioner (No.2) [2014] IEHC 351 has granted an order joining Digital Rights Ireland (DRI) as amicus curiae to the proceedings referred to the Court of Justice of the European Union (CJEU).

As reported in my earlier blog, the High Court has asked the CJEU whether the Data Protection Commissioner (DPC) is absolutely bound by the European Commission's decision, that the Safe Harbour regime provides adequate protection for personal data, having regard to the subsequent entry into force of Articles 7 and 8 of the Charter of Fundamental Human Rights of the European Union, which provide, respectively, for the right to respect for private and family life, and to protection of personal data. Alternatively, the High Court has asked whether the DPC may conduct his own investigation of the matter in light of the factual developments since the European Commission's Safe Harbour decision was first published in 2000.

The High Court granted DRI's application to join as an amicus curiae on the grounds that it is likely that it will be in a position to articulate its own distinctive views on the data protection questions arising, which may possibly assist the CJEU in grappling with those difficult questions.

Hogan J. highlighted that the opposition of the applicant, Mr Schrems, to the joinder of DRI and the fact that it has no legally conferred role in matters of data protection were factors which militated against the making of such an order.However he concluded that, in light of DRI's expertise and its track record, particularly its recent successful challenge to the validity of the Data Retention Directive, it was appropriate to make an order appointing DRI as an amicus curiae.

However, Hogan J. refused to permit DRI to add additional questions to the reference, as the proposed questions, on the validity of the  Data Protection Directive 1995 and the European Commission's Safe Harbour decision, would radically alter the nature and scope of the existing proceedings and would require the joinder of a further additional party (namely, the Attorney General), thereby involving further additional costs and delay.