The Irish High Court has decided to refer questions relating to the validity of the standard contractual clauses to the Court of Justice of the European Union (‘ECJ’). Standard contractual clauses, more commonly known as model contract clauses, are approved clauses by the European Commission for companies to use for the transfer of personal data to countries outside of the EEA.

This follows a complaint to the Irish Data Protection Commissioner (‘DPC’) about Facebook’s transfers of personal data from Ireland to the United States of America. The individual argued that the model clauses Facebook uses to allow for the transfer of personal data do not provide adequate protection for personal data. If these clauses are held not to be valid, Facebook would not be permitted to transfer data between the EU and the United States of America without putting in place alternative permitted safeguards under current data protection legislation.

The DPC has sought a referral to the ECJ from the Irish High Court for a preliminary ruling to determine the legal status of such data transfers. The Irish High Court shared the DPC’s concerns, stating that there is an absence of an effective remedy under law in the United States of America for an EU citizen whose data is transferred to the United States of America and an individual’s data may be at risk of being accessed by federal agencies.

The questions to be referred for preliminary ruling will be formulated after further submissions (the date for submissions is yet to be set). In the meantime, the DPC acknowledged that the referral does not invalidate or prohibit the future use of model clauses.

Click here to read the Irish High Court’s judgment.