On 18 June 2014, Mr Justice Hogan delivered his judgment to the High Court to refer the judicial review case of Schrems v. the Data Protection Commissioner (the “DPC”) to the ECJ. This case was brought before the High Court by Maximillian Schrems, an Austrian student. Schrems alleged that the DPC had erred in law in his decision not to investigate that data processed by Facebook (and subsequently transferred to the USA) is not given adequate data protection, despite the Safe Harbour Agreement. He claims that the DPC incorrectly concluded that Mr Schrems’ complaint was “frivolous and vexatious”.

The Judge referred to the fact that, as the DPC had outlined, Facebook had self-certified under the Safe Harbour regime. The European Commission had ruled that the Safe Harbour regime provided adequate data protection in 2000, and therefore there was nothing for the DPC to investigate.

The Judge therefore referred to the ECJ the question of whether, as a matter of European Union law, the DPC is absolutely bound by the finding of the European Commission in 2000, in relation to the adequacy of data protection in the law and practice of the United States, having regard in particular to the subsequent entry into force of Article 8 of the EU Charter of Fundamental Rights regarding protection of personal data.