Category: Uncategorised

Statute of Limitations in investment scheme damages claim

In Gallagher v ACC Bank [2012] IESC 35 the Supreme Court unanimously ruled that the applicable time of 6 years within which to take an action in tort for negligence concerning a financial loss would commence from the moment the individual invested in an investment product in circumstances where it was held that the plaintiff suffered a loss by virtue of entering into the investment. It was ruled that the plaintiff suffered an immediate loss as it was an unsuitable investment, and not because the investment was mismanaged.

A recent high court preliminary ruling has however opened the door to many investors to bring damages claims against fund promoters where a loss has been suffered and who would otherwise have been statute barred.  Mr Justice Robert Haughton’s preliminary ruling in Cantrell v AIB PLC & Ors [2017] IEHC 254, where AIB acted as promoter and placing agent, found that certain elements of the plaintiffs’ claims were statute barred but the plaintiffs’ claims that loss based on representations and prospectuses provided to them where they each lost between €75,000 and €440,000 could proceed with time commencing from dates post the dates of investments. The claims involve the operation of 5 separate investment funds in UK commercial property, known as “the AIB Belfry Funds”. The loan-to-value covenant aspect of the funds permitted assets which the fund invested in to be sold if fell below a certain value. The plaintiffs claimed that these sales occurred as the recession took hold and that there was a failure to explain the LTV covenants to them prior to entering into the investment. Mr Justice Robert Haughton ruled that the cause of action in tort therefore did not accrue at the date of entry into the investments as at that point there was a mere possibility of loss and not an actual loss.

The eight sets of proceedings were chosen from a large number of related cases to act as ‘pathway cases’.

An appeal is pending and the matter is back before the courts on the 20th February 2018.  Galligan Johnston will issue an updated brief on the outcome of this case as there are many in the investment community who will be impacted by the result.

 

 

Missed a Company Annual Return Deadline? District Court application to extend the time for filing late annual returns now possible under the Companies Act 2014 – read more to see how Galligan Johnston Solicitors can help you

The Companies Act 2014 introduced new rules for the application by a Company to the District Court for an extension of time in which to file outstanding annual returns. The new procedure does not apply to a company whose annual returns should have been delivered prior to 1st June 2015. The Company is obliged to retain legal representation when making an application to the District Court.

DISTRICT COURT PROCESS

  1. Galligan Johnston Solicitors will notify the CRO of the company’s intention to make an application to extend the time for filing the annual returns.
  1. We will draft the necessary District Court Proceedings including the Notice of Application and Grounding Affidavit. The Affidavit must be sworn by a Director of the company and set out the reasons why the Company failed to make the annual return.
  1. We will issue the Proceedings in the District Court area in which the Company has its registered office. The District Court Office will allocate a date for hearing.
  1. We will serve the Proceedings on the CRO, which must be done at least 21 days prior to the allocated Court date. We will arrange to swear and file an Affidavit of Service with the District Court Office. The CRO will issue a letter indicating whether there is any objection to the application. This letter will be provided to the Court.
  1. There is no requirement for a representative of the Company to attend at the District Court hearing.
  1. Once the Court Order is obtained, we will file same with the CRO within the period allowed by the Court. The Annual Returns must be filed with the CRO by the Company within the time period allowed in the Court Order. Where this is done, the annual return will be deemed by the CRO to have been received on time and any late filing penalties/loss of audit exemption will not apply to that annual return.

REQUIREMENTS FROM THE COMPANY

  1. Full explanation as to why the annual returns were not filed on time;
  2. Supporting documentation;
  3. Correspondence to and from the CRO;
  4. Confirmation of the annual return year in question, the company’s current ARD and the date to which the extension is sought (28 days after the ARD provided for in sections 343(2) and 343(3) in the Companies Act 2014).

Please contact kobrien@gjs.ie for further information and details on our fees.

The above information is for general information purposes only and does not constitute legal or taxation advice.  We advise each client specifically on the facts of its individual case. No liability whatsoever is taken by Galligan Johnston Solicitors for any action taken in reliance on the information in this article.

Workplace Relations Act 2015 – major changes for employers

Areas of change

 

  • Commenced in October 2015, the major changes of the Act are brought not to the content of employment law itself but to how employment disputes or complaints are litigated. The overarching aim of the Act is to streamline and modernise the process.

 

Workplace Relations Commission (WRC)

 

  • A new two-tier system has been implemented: with a new statutory body, the Workplace Relations Commission (WRC), hearing claims at first instance, and appeals heard by the Labour Court. The multiplicity of fora which previously existed have now been abolished. That is to say, the National Employment Rights Authority (NERA), the Labour Relations Commission, the Equality Tribunal, the Employment Appeals Tribunal, and the Rights Commissioners have all been replaced by this new two-tier system.

 

  • Those who acted as Rights Commissioners and Equality Officers at the time of the commencement of the Act will continue as Adjudication Officers in the WRC. It should be noted that there is no requirement for any Adjudication Officers appointed after October 2015 to have any legal qualifications.

 

How to submit complaints

 

  • The Explanatory Memorandum to the Act indicates a desire on behalf of the legislature to encourage greater use of electronic forms and filing. Complaints are submitted via the relevant form on the website workplacerelations.ie under the “Complaints and Disputes” section. Several claims under different statutes can be made on the one form, allowing for all complaints to be heard in the one place at the one time.

 

  • In certain circumstances, the WRC may request written submissions from an employer answering an unfair dismissal claim. The Director General of the WRC may also suggest that disputes are resolved by written submissions only but either party may object to this. Written submissions are required for all employment equality and constructive dismissal claims.

 

  • Unlike Labour Court hearings, WRC hearings are not held in public, and while the Commission may hear evidence it is not taken on oath.

 

  • The Director General of the WRC may also refer a complaint or dispute to mediation. This is done on a voluntary basis and any agreement between parties on foot of a mediation effectively works as a contract.

 

  • The Act seems to be achieving its aim of streamlining the litigation process, with the vast majority of hearing dates being given 2-3 months after a claim is submitted. Commentators have raised questions as to the workability or even legality of some sections of the Act however these have yet to be considered by the courts. In effect, employers will find that hearings are conducted in much the same semi-formal manner as before, but new requirements for written legal submissions may increase the necessity of obtaining legal advice.

 

Powers of inspectors

  • Powers of inspectors have been extended by the Act. In respect of both criminal and civil statutory contraventions, inspectors can now issue compliance notices and, in limited circumstances, fixed penalty notices of up to €2,000. The former may be appealed to the Labour Court and thereafter to the Circuit Court. Inspectors must prepare a report following any inspection and these are admissible in evidence. Therefore, a situation may arise where an employer against whom only one claim under one statutory provision is brought finds himself before a WRC Adjudication Officer who has sight of a full list of all contraventions found by the inspector.

 

Time limits

  • Time limits have been standardised at 6 months from the date of contravention, which may be extended to 12 months where there was a “reasonable cause” for the delay. A different time limit of 12 months applies for Redundancy Payment Act complaints.

 

  • An employer must implement any decision of the WRC within 56 days, following this they may be subject to an order of the District Court on the basis of that decision, who may also order compensation in lieu.

 

  • Appeals to the Labour Court from the WRC must be made within 42 days, with written submissions for the appeal to be submitted within 3 weeks of the filing of the notice of appeal. Decisions of the Labour Court must be implemented within 42 days and are also enforceable by way of an order of the District Court.

 

Appeals

  • Decisions of the Labour Court may not be appealed except for on a point of law to the High Court. The possibility of taking concurrent judicial review proceedings has been somewhat uncertain, but the recent decision of Ms. Justice O’Malley in Department of Education v. Labour Court and Anne Boyle (High Court judgment, 7th March 2015), seems to confirm that while the statutory recourse of appealing on a point of law should be the default, in certain circumstances it is not an abuse of process to issue concurrent judicial review proceedings

GALLIGAN JOHNSTON INVOLVED IN LANDMARK DECISION IN RELATION TO PRIORITY OF CHARGES

Galligan Johnston have recently acted for the successful party in a widely reported case that has provided clarity on the priority of charges. We represented Cascade Estates Limited, the notice party in the case of Larianov Foundation v Leo Prendergast and Sons (Engineering) [2017] IEHC 192.

The matter before the court was initially the plaintiff’s application for a well-charging order in the amount of €438,876 as against the defendant, however in reality (as noted by Judge Keane) the case centred on a dispute between the Plaintiff and Cascade Estates in respect of both the validity and priority of these parties’ respective charges over property in Kildare.  The matters for determination were in fact whether a charge on the lands concerned that were executed in favour of our client, the notice party, in 2004 but not registered on the folio until 30th August 2012 was in fact valid, and if so did it take priority over the plaintiff’s judgment mortgage registered on the folio on the 9th January 2012.  Galligan Johnston did not act in the original charging of the property in favour of our client.

In determining the validity of our client’s charge Judge Keane rejected arguments by the plaintiff that our client’s mortgage deed was invalid, thereby bringing the court’s attention to the central point of whether the charge took validity over the plaintiff’s judgment mortgage. Although registered prior to our client’s charge, our client’s charge existed first in time.

The relevant piece of legislation being considered by the court was section 117(3) of the Land and Conveyancing Law Reform Act 2009 (as amended) which states that

 ‘The judgment mortgage is subject to any right or incumbrance affecting the judgment debtor’s land, whether registered or not, at the time of its registration.’

 Section 117(3) of the 2009 Act has the effect that any judgment mortgage takes subject to any prior right or encumbrance whether or not they have been registered and crucially, whether or not the judgment mortgagee has notice of such security.  The Plaintiff sought to rely on section 74 of the Registration of Title Act 1964, which provides that in respect of registered burdens over property, if such burdens would rank in priority according to date of creation (if not registered), they shall rank according to entry onto the register and not according to the order of creation.  Judge Keane noted that this has been described in previous cases as a “possible inherent contradiction” but noted that the specific provisions of Section 71 (4) of the 1964 Act (as is largely re-enacted in the 2009 Act) provide for judgment mortgages taking subject to all pre-existing unregistered rights.

Judge Keane went further in his considered judgment and proposed that any possible contradiction could be overcome by applying the legal maxim “generalia specialibus non derogant” – that the general does not prevail over the specific.  For all of these reasons, our clients’ charge was found to have priority over the Larianov Foundation’s judgment mortgage.

If you are concerned over the validity or priority of any security you have in respect of property, please contact Sam Saarsteiner, Partner and head of our Litigation Department, to discuss further.

Peter Oakes, the first Director of Enforcement and AML/CTF Supervision at the Central Bank of Ireland , is strategic consultant to the firm

Peter Oakes is a strategic consultant to the firm. He is a qualified solicitor admitted in Ireland, the United Kingdom and Australia. Over the past 25 years he has worked both as a regulator and senior executive in the investment management, payments, reinsurance, funds and fintech industries in board, c-suite, legal and compliance roles. He has advised central banks and regulators (Australia, Asia, UK, Ireland & Middle-East) on a wide range of strategic, supervisory and enforcement issues as well as regulated entities and their boards dealing with enforcement actions. From 2010 – 2013, he was appointed the first Director of Enforcement and AML/CTF Supervision at the Central Bank of Ireland. In this role he had directorial responsibility for all Central Bank investigations and enforcement issues across prudential regulation, conduct of business, consumer protection, securities regulations, fitness and probity requirements, refusal/revocations of authorisations, specialist AML/CFT supervisory inspections and unauthorised business activities. Peter was a member of the Central Bank’s Senior Leadership Team and the Senior Management, Policy and Supervisory Risk Committees. From 2014 – 2016, as a Director and Chief Risk Officer, Peter was responsible for establishing Bank of America Merchant Services operations in Europe. He has led numerous regulatory authorisations for companies in the UK and Ireland. In addition to his role with Galligan Johnston, Peter is non-executive director of Irish regulated firms Susquehanna International Securities Limited and Interpay Limted (t/a TransferMate) and board advisor to a group of UK based FCA regulated firms. Peter founded Fintech Ireland and Fintech UK to facilitate and promote fintech, through which he coaches and mentors new technology firms.

Redomiciling of UK Companies to Ireland post-Brexit

Under current UK tax rules, a group which has a UK incorporated tax resident holding company and has UK income and non-UK businesses, pays UK corporation tax and is taxed at the local rate on its non-UK profits. As well as this, a company incorporated in the UK is presumed to be UK resident and under UK law, it is not possible to redomicile a company in its current form.

Therefore to move a company to Ireland, an Irish company is incorporated and becomes the new holding company of the group. The transfer of shares is done through a scheme of arrangement whereby existing shares in the current UK holding company are cancelled and the resulting reserve arising from such cancellation is applied in issuing new ordinary shares to the new Irish holding company. In consideration for the issue of such ordinary shares, the new Irish holding company issues ordinary shares to the former shareholders of the UK holding company. Essentially shareholders are swapping their shares in the former UK holding company for shares in the new Irish company. Similarly, a company can relocate to Ireland by way of a merger or takeover of an Irish company with the new company being registered and based in Ireland. In the case of public companies, they may move to Ireland by registering as “Societas Europaea” or “SE” (the new form of European public company) and moving its registration to Ireland.

The process of the scheme of arrangement when incorporating an Irish holding company:

as

To ensure the group is not subject to UK law on its foreign income, the UK income/ assets/liabilities are separated from the non-UK income/assets/liabilities. This may involve the transfer of subsidiaries or other income-generating activities so that they are directly owned by the new Irish parent/Irish subsidiary. This is because a tax charge can arise when transferring assets as such.

The UK shareholders must also agree to the move in a shareholder’s meeting and amend the company’s constitution where necessary to ensure compliance with Irish company law.

The Finance Act 2014 introduced a number of new measures to ensure companies resident in Ireland were exactly that. The most important consequences of these rules are;

  • To maintain its tax status and to be recognised as resident by the Irish Companies Registration Office, the new holding company must be centrally managed and controlled in Ireland. This is generally defined as the place where board meetings occur, as the board exercises control over the strategy and operational management of the company, therefore all board meetings and major decisions should take place in Ireland. It should be noted however, that the board may delegate to others the management of certain aspects of the company in Ireland and abroad.
  • The company must ensure that it acts in a way to avoid being treated as resident in another country, the UK for instance, as this will lead to the Irish CRO recognising the company’s residency in that state rather than in Ireland.
  • All general meetings of the new Irish holding company shall be held in Ireland
  • At least one director should be tax resident in Ireland, meaning he/she is resident in Ireland for 183 days in a tax year or 260 days in 2 tax years.

Why Ireland?

  • Ireland is a member of the OECD and the EU and is the only English speaking jurisdiction in the Eurozone. Registering a company in Ireland from the UK will allow it to continue trading without barriers to the EU market, thus allowing companies to massively negate the impact of Brexit on their company.
  •  Ireland’s low corporation tax rate (corporation tax on trading profits is 12.5%) and the ability to repatriate profits to Ireland without tax costs.
  •  Ireland has signed comprehensive double tax treaties with 68 countries, including the U.S. and all EU member states.
  • Like the UK, Ireland is a common law jurisdiction and its legal concepts will be recognised by most investors; in addition, the laws relating to personal property and the transfer of assets and the concepts of legal and equitable title are similar to those in the UK.
  • The Irish Stock Exchange (ISE) currently has responsibility for the approval of any public offer prospectus required to be issued by an Irish company. The ISE provides an efficient and comparatively speedy approval procedure for prospectuses.
  • Takeover bids for public companies incorporated in Ireland are regulated by the Irish Takeover Panel whose rules are based on the Takeover Code of the UK Takeover Panel as well as incorporating the EU Takeover Directive 2004/25/EC.
  •  Ireland has an experienced and efficient Commercial Court which can resolve disputes speedily in a cost effective manner.
  • Dublin is an established international financial centre.
  • Ireland has a skilled and well educated labour force.

Taxation

  •  12.5% rate of corporation tax applies to trading profits and trading dividends. A rate of 25% applies to passive income.
  •  Capital gains tax is 33% however the sale of shares by a non-Irish resident is usually exempt from capital gains tax. An exemption also exists for disposals of 5%+ corporate shareholdings held for at least 12 months in trading companies/groups that are EU resident/tax treaty resident.
  •  No dividend withholding tax applies to dividends paid to persons resident in an EU or an Irish tax treaty country or on U.S./Canadian listed shares held through ADRs (subject to collection of relevant forms). It is also possible to implement structures using income access shares where it is necessary to allow shareholders to continue to receive non-Irish dividends.
  •  Dividends received by an Irish incorporated company are taxed at 12.5% or 25% but a flexible credit system usually eliminates any tax liability on receipt; also other tax free cash repatriation techniques are available.
  •  No interest withholding tax applies to interest paid (i) to persons resident in an EU or an Irish tax treaty country or (ii) on listed bonds or commercial paper.
  • Tax credits are available in Ireland for the purpose of research & development
  •  Ireland currently has a comprehensive framework of double taxation agreements. The agreements generally cover income tax, corporation tax and capital gains tax (direct taxes)

Irish Marathon Runner Sergiu Ciobanu – Decision by Court of Arbitration for Sport to Reject Appeal Against Athletics Ireland 2016 Rio Olympics Team Selection

Galligan Johnston Solicitors had the great honour of representing the Irish international marathon runner, Sergiu Ciobanu in his appeal to the Court of Arbitration in Switzerland against Athletic Association of Ireland Limited & Olympic Council of Ireland concerning his omission from the Ireland 2016 Rio Olympics men’s marathon team. While the noting that the result was disappointing for Sergiu, Sam Saarsteiner, Partner, stated that Mr. Ciobanu’s decision to appeal ‘will in time result in much greater transparency in terms of the selection criteria and a more robust implementation of those policies.  This can only serve to improve the treatment of Irish athletes and the sport overall in Ireland’.

An Irish citizen, Sergiu has represented Ireland as a marathon and cross country runner at international level. Having previously sought and narrowly missed qualification for the London 2012 Olympic Games, he participated in the Athletics Ireland official qualifying process to represent Ireland at the Rio 2016 Games and received extensive support (including from Athletics Ireland) to that end.

The qualification process consisted of three performance windows in which marathon athletes could attempt to achieve the required Olympic Games entry standard qualifying time for nomination by Athletics Ireland to be selected by the Olympic Council of Ireland for Team Ireland. As part of this process, Sergiu ran the Berlin Marathon in September 2015, finishing as the second fastest Irish male and achieving the required Olympic qualification time. At the end of the overall qualification process, Sergiu was ranked as the third fastest Irish male marathon runner. However, he was not selected as part of the three marathon runners to represent Ireland in Rio.

Sergiu initially engaged in the Athletics Ireland internal appeal process to seek clarity on and appeal his exclusion from the team. This process, which did not include an oral hearing, failed to provide Sergiu with reasons for his omission from the team and this lack of clarity led him to appeal to the Court of Arbitration for Sport (CAS).

Commenting on the decision, Sergiu Ciobanu stated: “I am very disappointed not to have the opportunity to represent Ireland at the 2016 Olympics, a country I have called home since 2006.   Having run for Ireland in the past, I was hopeful that my recent performances as per the Athletics Ireland qualification guidelines, together with my track record would enable me to run for my country. That said, I fully respect the decision of CAS and certainly wish each and every member of the Irish marathon team every success at Rio and have no doubt that they will represent Ireland with pride.  I also look forward to continuing my close relationship with Athletics Ireland over the next four years as I set my sights on Tokyo 2020. 

I took this necessary action to highlight the lack of clarity that I believe currently exists for many Irish athletes, all of whom make great sacrifices to represent their country. I will continue to seek to represent Ireland and I would call on Athletics Ireland to ensure greater transparency and clarity in their qualification requirements to safeguard athletes in the future. I would also like to take this opportunity to thank my family and all those who have supported me in my appeal.”  

We here in Galligan Johnston Solicitors certainly wish Sergiu all the best for Tokyo 2020.

Irish Times 22nd July 2016

 

Brexit Breakfast Meeting 7th July 2016

Event date: Thursday 7 July 2016 @ 7.30am

Location: The Stephen’s Green Hibernian Club, 9 St Stephen’s Green, Dublin 2 .

RSVP: cmulligan@gjs.ie   Places limited to 100

We here at Galligan Johnston Solicitors are delighted to bring you a fantastic opportunity to attend an information breakfast on Brexit. We have worked with Peter Oakes, from Fintech Ireland, in the days after the Brexit referendum to bring you this unique presentation focused on fintech in Ireland. But it is for more than just the domestic Irish fintech scene: international fintech companies operating here (including Freedom of Establishment and Freedom of Services basis) and those considering Ireland as part of their future plans post-Brexit will be attending.

We will focus on the strategy and challenges facing fintech in Ireland and the UK, particularly regulated fintech and what entrepreneurs, start-ups and incumbents need to consider in light of the Brexit vote. The benefit of attending includes hearing from presenters who right now are working on both UK Financial Conduct Authority, Central Bank of Ireland and other EU regulator authorisation applications for fintech and non-fintech companies, and the impact that Brexit will have on their strategies. Our combined work covers payment services, e-money, intermediary, banking, mutual funds, MiFID, challenger bank and insurance clients, board director positions and advisory roles across Europe.

This event will provide an excellent opportunity for you to network and gain support from other fintech firms, entrepreneurs, start-ups and incumbents. We will actively encourage comment, dialogue and of course questions and your comments on this critical topic. Will provide feedback to the Irish Government and Central Bank (plus other EU regulators) as part of on-going engagement on Ireland’s financial services strategy and choice of jurisdiction for regulated (and unregulated) activities.

Some of the topics to be covered include:

  • Overview: Fintech scene in Ireland
  • Update: What Brexit may look like for fintech & others
  • Regulatory authorisation regimes: UK, Ireland and other selected EU jurisdictions
  • Impact: What to think about if you have commenced or about to commence an authorisation for a fintech business (a very practical topic – which the speakers themselves are dealing with right now)
  • Next Steps: With your Q&As, comments and narratives, putting feedback from the event before Irish government, policymakers and regulators

Our speakers include:

James-Paul Galligan, Partner, Galligan Johnston Solicitors

Peter Oakes: (www.fintechireland.com/about.html / www.linkedin.com/in/peteroakes)

Peter is a well-known and respected regulatory and fintech expert. He is regular commentator in Irish & international media and at international conferences on fintech, regtech and central banking/regulation (click here). Peter is non-executive director a large MIFID technology options market maker (Ireland), advisory board member at ClearSettle (London) and advisory committee at Corlytics, Cogni and Plynk. Peter works in Dublin and London advising fintech and non-fintech companies (including banks, payments services, emoney, investment management, funds industry and intermediaries) on Central Bank of Ireland, Financial Conduct Authority and other EU regulator authorisation, supervisory and enforcement matters. Peter is the former Director of Enforcement & Financial Crime at the Central Bank of Ireland and has worked in senior roles with the UK Financial Services Authority, Australian Securities & Investments Commission and the Saudi Arabian Monetary Agency. Most recently Peter was Board Director & Chief Risk Officer in London for Bank of America Merchant Services (Europe), where he established the business and led its FCA authorisation. He is also a lawyer qualified in Ireland, the United Kingdom and Australia. As many know, Peter is Founder of Fintech Ireland and also President of the Irish Chapter of the Irish Australian Chamber of Commerce which supports innovation initiatives between Australia and Ireland, and will inform and support the Australian EU FTA negotiations taking place in 2017.

 

Unsafe Harbour? The Schrems Decision and its implications

The decision of the Court of Justice of the European Union in the case of Maximillian Schrems –v- Data Protection Commissioner (C-362/14) was delivered on 6th October 2015.

The Max Schrems case was a preliminary ruling request from the Irish High Court to the Court of Justice of the European Union (the “CJEU”). The Irish High Court case concerns a challenge brought by Max Schrems against the Irish Data Protection Commissioner as to whether it should have taken action and investigated transatlantic transfers of data which were carried out by Facebook via the EU Commission approved “Safe Harbour” system.

EU data protection law ordinarily prohibits transfers of personal data outside of the European Economic Area (the “EEA”) to countries that are deemed not to provide an adequate standard of protection for personal data.  “Safe Harbour” is a US/EU agreed framework (approved by way of EC Decision 200/520/EC) which provides for a derogation from this default in circumstances where in the absence of a general data protection law in the United States, adhering companies voluntarily sign up and commit to the Safe Harbour Privacy Principles and FAQs.  These principles are then binding on those companies under US Law and enforceable by the US Federal Trade Commission. The CJEU’s decision in this case has significant implications for entities that transfer personal data to the United States or have signed up to Safe Harbour

The CJEU Judgment

The CJEU found that the Safe Harbour system enabling data transfers from the EEA to the United States, utilised by thousands of companies including the likes of Google, Facebook, Twitter and other household names, is invalid. In reaching this conclusion, the CJEU held that the previous Commission Decision[i] approving the Safe Harbour system was invalid as it failed to sufficiently examine the data protection standards in the US to ensure that the level of protection of fundamental rights is equivalent to those guaranteed in the EU.  The CJEU also ruled that the existence of the Decision does not prevent national supervisory authorities from examining whether the transfer of personal data to a third country complies with the requirements of EU data protection law.

Consequences of the CJEU Judgment

In relation to the originating Irish High Court case, the Judgment means that the Irish Data Protection Commission is obliged to investigate the complaint made by Mr. Schrems and decide whether the transfer of personal data from Facebook Ireland to the US is in breach of the relevant EU Data Protection law. Regardless of the outcome of the originating Irish High Court case, the CJEU Judgment stands independently and is effective immediately.

Guidance
The Article 29 Working Party (the “Group”) is tasked with providing expert advice to the European Commission on data protection matters, promoting the uniform application of the Data Protection Directive on a national level and advising the European Commission on any European Community law that affects the right to protection of personal data.

In a statement issued on Friday 16 October 2015, the Group stated that if no replacement for Safe Harbour is agreed with the US authorities by the end of January 2016, the EU data protection authorities would take all necessary actions which may include coordinated enforcement actions. It advised that EU data protection authorities will put in place, at national level, information campaigns to keep companies who previously relied on Safe Harbour up to date. The Group confirmed that alternative tools authorising data flows can still be used by companies for lawful data transfers to third countries like the United States.

In addition, the EC has released a communication to the European Parliament and the Council on the Transfer of Personal Data from the EU to the USA under Directive 95/46/EC following the Judgment by the CJEU (COM (2015) 566 final, 6th November 2015)

The Communication reiterates that a renewed and sound framework for transfers of personal data to the United State remains a key priority. The EC has been in negotiations with the US government since 2013 on a new arrangement for transatlantic data transfers, which discussions have now intensified in light of the CJEU Judgment.

Conclusion

The full impact of the Judgement and the risk of potential recourse after the end of January 2016 is yet to be seen. This leaves a great deal of uncertainly for companies who utilise the transfer of personal data to the US.   All businesses should review their contracts, data protection policies and terms and conditions in light of the above ruling and take individual advice in relation to the implications of this important judgment.

If any of the above is relevant to your business and you would like to discuss further, please contact Edward Johnston, Sam Saarsteiner or Karen O’Brien.

[i] Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7).

5 years

Galligan Johnston Solicitors celebrate 5 years in business

As published in the Sunday Business Post, 12th July 2015:

“The partners of Galligan Johnston Solicitors would like to extend their sincerest gratitude to all of their clients who have supported the firm over the past five years.  The partners would also like to thank all members of the growing team at the firm who have worked hard to grow the practice.

Based in the heart of Dublin 2 and close to the legal hub of the city, Galligan Johnston Solicitors are celebrating their fifth anniversary this month.   This milestone could not have been achieved without the ongoing support of the firm’s clients.  Formed in the midst of the economic downturn, the firm has grown prodigiously from a core of two founding partners to a total of 10 staff, including two associates, three legal executives and a full support staff.  Galligan Johnston proudly continue to act for their long-standing clients and a rapidly growing new client base across highly specialised commercial, property and litigation matters.”

New Partner

Galligan Johnston appoint new Partner

As published in the Sunday Business Post, 5th July 2015.

“Galligan Johnston Solicitors, who recently celebrated their fifth anniversary at their offices in the heart of Dublin, are pleased to announce the appointment of Sam Saarsteiner as partner.  Sam has been with the firm since 2011 and has been involved in a number of its most significant successes, including professional indemnity litigation claims and company examinerships.  Sam trained in a large Dublin firm and gained experience working in the corporate and commercial legal department of a top-five firm before moving into litigation practice.  Sam will take charge of Galligan Johnston’s growing litigation department, working alongside the firm’s founding partners James-Paul Galligan and Edward Johnston.”