Ireland: WhatsApp appealed General Court’s December 2022 dismissal to Court of Justice of the European Union

On 17 February 2023, WhatsApp Ireland Ltd lodged an appeal with the Court of Justice of the European Union (CJEU) in Case C‑97/23 P, seeking to overturn the General Court’s (GC) order of 7 December 2022 in Case T‑709/21. The GC had dismissed WhatsApp’s action for annulment as inadmissible, ruling that Binding Decision 1/2021 of the European Data Protection Board (EDPB), adopted under the GDPR consistency mechanism, constituted a preparatory act without direct legal effect on WhatsApp. In its appeal, WhatsApp argues that the GC erred in its interpretation of Article 263 TFEU and the concept of "act open to challenge" in EU case law by considering the contested decision a "mere preparatory act". In doing so, the GC required WhatsApp to demonstrate that the 7 December judgement brought about a "distinct change" in WhatsApp's legal position, which WhatsApp contends it need not demonstrate. WhatsApp further contends that the decision brought about a distinct change in its legal position, left no genuine discretion to the Irish Data Protection Commission in its implementation, and thus rendered the company directly concerned. The company also challenges the GC’s interpretation of the concept of a "binding decision" under Article 65(1) of the GDPR and the principle of consistent interpretation of EU law. (The GC had ruled that the GDPR does not contain legal provisions concerning legal remedies against binding decisions brought under Article 65(1), and that judicial review must instead occur at the national level.) WhatsApp requested that the CJEU set aside the order, declare the original action admissible, and remit the case to the General Court for judgement.