Appeal brought on 17 February 2023 by WhatsApp Ireland Ltd against the order of the General Court (Fourth Chamber, Extended Composition) delivered on 7 December 2022 in Case T-709/21, WhatsApp Ireland v European Data Protection Board

(Case C-97/23 P)

(2023/C 121/12)

Language of the case: English

Parties

Appellant: WhatsApp Ireland Ltd (represented by: H.-G. Kamann, Rechtsanwalt, F. Louis and A. Vallery, avocats, P. Nolan, B. Johnston and C. Monaghan, Solicitors, P. Sreenan and D. McGrath, Senior Counsel, C. Geoghegan and E. Egan McGrath, Barrister-at-Law)

Other party to the proceedings: European Data Protection Board (EDPB)

Form of order sought

The appellant claims that the Court should:

Pleas in law and main arguments

In support of its appeal, the WhatsApp relies on two pleas in law.

In its first plea in law, WhatsApp submits that the General Court erred in its interpretation of the concept of an ‘act open to challenge’ and the Court of Justice’s case-law under Article 263 TFEU by holding that Binding Decision 1/2021 of the EDPB of 28 July 2021 on the dispute between the supervisory authorities concerned arising from the draft decision regarding WhatsApp drawn up by the Data Protection Commission (DPC) (Ireland) (‘the Contested Decision’) is a mere preparatory act. In so finding, the General Court erred in holding that WhatsApp, as a non-privileged applicant, had to demonstrate that the Contested Decision brings about a distinct change in its legal position. The General Court further erred in finding that WhatsApp is not directly concerned by the Contested Decision. Moreover, the General Court’s legal analysis is erroneous. The General Court ought to have found that (i) the Contested Decision does not merely constitute an intermediate act, but rather lays out the definitive position of the EDPB in respect of the matters referred to it for determination under Article 65 GDPR (1); (ii) the Contested Decision had legal effects and brought about a distinct change in WhatsApp’s legal position; and (iii) WhatsApp was directly concerned by the Contested Decision because it left no genuine discretion to the DPC tasked with its implementation.

In its second plea in law, WhatsApp submits that the General Court committed errors in law in the interpretation of the notion of ‘binding decision’ within the meaning of Article 65(1) GDPR and the principle of consistent interpretation and application of European Union law.

(1)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).