knowledge | 3 August 2016 |

Commercial Court Affirms Legal Principles on Admission of an Amicus Curiae

The Commercial Court recently had to consider no fewer than nine applications for admission as amicus curiae (“friend of the court”) in the same case, Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems.

An amicus curiae or amicus is a person who is not a party to litigation who offers information that bears on the litigation, but who has not been invited by any of the parties, to assist the court. This usually takes the form of legal submission or opinion, and occasionally testimony (the amicus brief). It can allow potentially broader legal effects of the court’s decision than those for the parties to the litigation to be addressed. The decision on whether to admit an amicus is at the court’s discretion. Though the notion originated in Roman law, it is well-established in common law.

Ireland’s Commercial Court has again become the platform for a challenge to European data protection laws in the context of the transfer of EU citizens’ data to the United States. In a case which has received widespread international media coverage, the Data Protection Commissioner (“DPC”) is seeking a reference to the Court of Justice of the European Union (“CJEU”) for a ruling on the validity of three European Commission decisions.1 Those decisions concern the use of Standard Contractual Clauses (“SCCs”) as the basis for the transfer of EU citizens’ personal data from the EU to third countries under Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the “Directive”).

A preliminary reference to the CJEU following a complaint against Facebook Ireland by Austrian law student Maximillian Schrems in 2013 determined that Commission Decision 2000/520/EC of 26 July 2000 (the “Safe Harbour” Decision), previously a central instrument governing EU-US data flows, was invalid. The CJEU held that Safe Harbour failed to provide EU citizens with the ability to pursue effective and equivalent remedies in the US in respect of alleged contraventions of their rights under Articles 7 and 8 of the EU Charter of Fundamental Rights. Following the striking down of Safe Harbour, transatlantic data transfers were principally conducted on the basis of the SCCs recognised by the three Commission decisions.

A reformulated complaint was submitted to the DPC by Schrems following the CJEU ruling and the DPC issued a draft decision in May 2016. The DPC concluded that she could not determine definitively whether the US ensures adequate protection of EU data protection rights, in view of the adequacy criteria of Article 25(2) of the Directive, without a ruling from the CJEU on the validity of the SCC Decisions.

With this objective in mind, the DPC began proceedings with Facebook Ireland and Schrems as defendants. Due to the issues arising in the proceedings and the potential widespread economic and commercial implications of a finding of invalidity of decisions underpinning transatlantic data flows, a number of interested parties applied to join the proceedings as amici. A relatively rare procedure in Ireland, the Commercial Court heard an unprecedented nine such applications in this case, comprising groups representing a broad spectrum of business and human rights interests. Of these, four applicants were admitted arising from the judgment given by McGovern J on 19 July 2016,2 including notably, the Government of the United States of America (for whom McCann FitzGerald acted).

The amicus has been a relatively rare phenomenon in Ireland. The only formal statutory basis to admit an amicus in Ireland is section 10 of the Irish Human Rights and Equality Commission Act 2014, which gives the IHREC a statutory entitlement to apply to the Court to be joined as an amicus.3 The Supreme Court decision in H.I. v Minister for Justice, Equality and Law Reform4 confirmed the inherent jurisdiction of the court to appoint an amicus and while some established principles can be discerned from the limited case law, these have room for development.

In H.I. Keane CJ held that jurisdiction to admit an amicus should be exercised sparingly. Similarly, Kelly J referred in EMI Records (Ireland) Ltd v UPC Communications Ireland Ltdthe “limited circumstances” in which a Court might admit an amicus. McGovern J held that this constraint was “particularly relevant in this case where so many applicants seek to join.” The Judge also observed that the general rule has been that amicus applications will more readily be acceded to at the appellate rather than trial stage, because amici should not generally go into evidence and should be restricted from involvement where there is any factual controversy. Several of the applicants submitted that due to the unique nature of the proceedings and the absence of a normal lis inter partes, the general presumption against admitting amici at first instance should not apply. Having regard to the importance of the subject matter of the proceedings and particularly the fact that in order to be involved before the CJEU in the event of a reference, the applicants would have to be involved in the High Court proceedings, McGovern J accepted that this submission was a “reasonable view” and that accordingly he would entertain the applications.

In summarising the legal principles derived from the Irish jurisprudence on amicus curiae, the court cited O’Brien v Personal Injuries Assessment Board (No. 1),6 where Finnegan P set out the following requirements for a successful amicus curiae application: that the applicant must have a bona fide interest in the matter and not merely be a meddlesome busybody; that the matter must have a public law dimension and that the decision must affect a great number of persons. McGovern J was satisfied that the case self-evidently met these criteria and that several of the applicants had a bona fide interest in the proceedings.

McGovern J added that a vital aspect of the criteria for amicus status, the question of non-partisanship, had been addressed in Fitzpatrick v FK.7 Agreeing with the assertion by counsel for the United States, the Judge observed that the reluctance of the court to admit as an amicus a person with a “strong view or vested interest” has diminished in recent times. He cited the dicta of Justice Hogan in Schrems v Data Protection Commissioner (No. 2),8 where that judge had observed that the notion that an amicus always holds a strictly neutral, non-partisan position, involved a “polite fiction”. McGovern J echoed that sentiment, stating that, while it is important to remember that an amicus curiae’s purpose is to assist the court and not to become a party to the action, it is precisely because the party has an interest in the issue at hand that it has sought to join the proceedings.

In distinguishing the various applicants, the judge attached particular weight to the unique perspective that each could offer to the court. In respect of the United States, the judge held that the applicant had a clear bona fide interest since the case concerned “assessment, as a matter of EU law, of the applicant’s governing law.” The Judge acknowledged that the proceedings could have “potentially considerable adverse effects on EU-US commerce and could affect US companies significantly” and admitted the United States on the basis that the applicant could “bring added value which other parties may be unable to provide.”

The Judge also admitted Electronic Privacy Information Centre (“EPIC”), described as the leading privacy and freedom of information organisation in the US, with special expertise in government surveillance and related legal matters. The Judge said that EPIC could similarly bring to bear an expertise not otherwise available to the Court and that the organisation would also provide a “counterbalancing perspective” to the United States administration. The Business Software Alliance and Digital Europe were also admitted on the basis of the unique perspectives they could offer. Five further applications were refused.

Aside from the enormity of the substantive issues of the case, this case has developed the limited Irish jurisprudence on amicus applications. McGovern J confirmed the trend of decreasing reluctance of the courts to admit parties with a clear policy position on the underlying legal issues which reflects a more realist and pragmatic view of the purpose of the amicus mechanism. Interestingly, the judge addressed this trend by admitting amici with “counterbalancing” viewpoints and divergent perspectives, which is a very practical approach to cases where amici, despite their formal independence inevitably have preferences about what the outcome of the case should be.


  1. Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC; Commission Decision 2004/915/EC of 27 December 2001 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC; Commission Decision 2010/87/EC of 5 February 2007 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC
  2. Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (2016 No 4809 P), judgment of 19 July 2016
  3. Incidentally IHREC was one of the unsuccessful applicants to join this case. McGovern J refused its application, notwithstanding the express statutory entitlement to apply, on the basis that IHREC could not offer a unique perspective which would otherwise be unavailable to the court. The judge viewed the DPC as sufficiently fulfilling the role of custodian of persons’ privacy rights in the realm of data protection
  4. [2004] 3 IR 197
  5. [2013] IEHC 204
  6. [2005] 3 IR 328
  7. [2007] 2 IR 406
  8. [2014] IEHC 351

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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