The General Court of the European Union has dismissed as inadmissible WhatsApp’s appeal against a decision of the European Data Protection Board (EDPB) of July 2021 in which the EDPB ruled on personal data protection issues at the request of the Irish Data Protection Commission, the lead authority in the supervision of the social network’s activities in the EU under the ‘GDPR’ Regulation (2016/679), in an order issued on Wednesday 7 December (case T-709/21).
Following complaints from users, the Irish supervisory authority had asked other national authorities for their opinion on a draft decision on WhatsApp’s activities. In the absence of a consensus, it referred the matter to the EDPB, who issued a binding decision in July 2021 on issues considered relevant by some of these national authorities. The Irish authority then adopted a final decision finding that WhatsApp had failed to comply with certain provisions of the GDPR and imposed a fine of €225 million (see EUROPE 12782/11).
In its first ruling on a binding decision of the EDPB, the General Court dismissed WhatsApp’s action, holding that the US company is not directly concerned by the contested decision, as the conditions of Article 263 TFEU are not met.
The European judge considers that the EDPB decision does not change the legal situation of the social network, as it is not directly enforceable against it and constitutes a preparatory act in a procedure that was finalised by the Irish authority through a decision addressed to WhatsApp. Furthermore, the EDPB decision left the Irish authority a margin of appreciation in the elaboration of its own decision, notably on the issue of fines.
On the other hand, the General Court states that WhatsApp is able to challenge the Data Protection Commission’s decision in the Irish courts, which WhatsApp has done in parallel. In this procedure, the Irish judge could ask the Court for a preliminary interpretation of the EDPB decision under EU law.
See the General Court’s order: https://aeur.eu/f/4jj (Original version in French by Mathieu Bion)