50
Mr Schrems, an Austrian national residing in Austria, has been a user of the Facebook social network
(‘Facebook’) since 2008.
51
Any person residing in the European Union who wishes to use Facebook is required to conclude, at the
time of his or her registration, a contract with Facebook Ireland, a subsidiary of Facebook Inc. which is
itself established in the United States. Some or all of the personal data of Facebook Ireland’s users who
reside in the European Union is transferred to servers belonging to Facebook Inc. that are located in the
United States, where it undergoes processing.
52
On 25 June 2013, Mr Schrems filed a complaint with the Commissioner whereby he requested, in
essence, that Facebook Ireland be prohibited from transferring his personal data to the United States,
on the ground that the law and practice in force in that country did not ensure adequate protection of
the personal data held in its territory against the surveillance activities in which the public authorities
were engaged. That complaint was rejected on the ground, inter alia, that, in Decision 2000/520, the
Commission had found that the United States ensured an adequate level of protection.
53
The High Court (Ireland), before which Mr Schrems had brought judicial review proceedings against
the rejection of his complaint, made a request to the Court for a preliminary ruling on the interpretation
and validity of Decision 2000/520. In a judgment of 6 October 2015, Schrems (C‑362/14,
EU:C:2015:650), the Court declared that decision invalid.
54
Following that judgment, the referring court annulled the rejection of Mr Schrems’s complaint and
referred that decision back to the Commissioner. In the course of the Commissioner’s investigation,
Facebook Ireland explained that a large part of personal data was transferred to Facebook Inc. pursuant
to the standard data protection clauses set out in the annex to the SCC Decision. On that basis, the
Commissioner asked Mr Schrems to reformulate his complaint.
55
In his reformulated complaint lodged on 1 December 2015, Mr Schrems claimed, inter alia, that
United States law requires Facebook Inc. to make the personal data transferred to it available to certain
United States authorities, such as the National Security Agency (NSA) and the Federal Bureau of
Investigation (FBI). He submitted that, since that data was used in the context of various monitoring
programmes in a manner incompatible with Articles 7, 8 and 47 of the Charter, the SCC Decision
cannot justify the transfer of that data to the United States. In those circumstances, Mr Schrems asked
the Commissioner to prohibit or suspend the transfer of his personal data to Facebook Inc.
56
On 24 May 2016, the Commissioner published a ‘draft decision’ summarising the provisional findings
of her investigation. In that draft decision, she took the provisional view that the personal data of EU
citizens transferred to the United States were likely to be consulted and processed by the US authorities
in a manner incompatible with Articles 7 and 8 of the Charter and that US law did not provide those
citizens with legal remedies compatible with Article 47 of the Charter. The Commissioner found that
the standard data protection clauses in the annex to the SCC Decision are not capable of remedying
that defect, since they confer only contractual rights on data subjects against the data exporter and
importer, without, however, binding the United States authorities.
57
Taking the view that, in those circumstances, Mr Schrems’s reformulated complaint raised the issue of
the validity of the SCC Decision, on 31 May 2016, the Commissioner brought an action before the
High Court, relying on the case-law arising from the judgment of 6 October 2015, Schrems (C‑362/14,
EU:C:2015:650, paragraph 65), in order for the High Court to refer a question on that issue to the
Court. By order of 4 May 2018, the High Court made the present reference for a preliminary ruling to
the Court.
58
In an annex to the order for reference, the High Court provided a copy of a judgment handed down on
3 October 2017, in which it had set out the results of an examination of the evidence produced before it
in the national proceedings, in which the US Government had participated.
59
In that judgment, to which the request for a preliminary ruling refers on several occasions, the
referring court stated that, as a matter of principle, it is not only entitled, but is obliged, to consider all
of the facts and arguments presented to it and to decide on the basis of those facts and arguments
whether or not a reference is required. The High Court considers that, in any event, it is required to