Ireland: Court of Justice of the European Union set aside General Court’s December 2022 dismissal and referred case back to General Court

On 10 February 2026, the Court of Justice of the European Union (CJEU) set aside the General Court’s 7 December 2022 dismissal and referred the case back to the General Court. The decision resolves an appeal lodged by WhatsApp Ireland 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) constituted a "preparatory act without direct legal effect" on WhatsApp. First, WhatsApp claimed that the GC erred in law by stating that the EDPB's 28 July decision advising the Irish Supervisory Authority (ISA) to increase the fine was not an act open to challenge. The CJEU ruled in WhatsApp's favour on this point, finding that the EDPB's decision precedes the adoption of a decision by the ISA and "definitively determines" the EDPB's position as a competent EU body. Second, WhatsApp argued that the GC erred in holding that the decision was not of direct concern to WhatsApp and was therefore inadmissible. The CJEU found that decisions may be of direct concern even if they are not directly enforceable or do not constitute the final stage in a procedure, noting in particular that this applies when the decision directly affects the party and leaves no discretion to the addressees responsible for implementing it. The CJEU concluded that because its ruling on the first two points was sufficient to set aside the dismissal and refer the case back to the GC, it was unnecessary to consider WhatsApp's remaining contentions.