On November 14, Advocate General Michal Bobek released an opinion regarding Schrems v. Facebook Ireland (a separate action from the so-called Schrems 2.0, which deals with model clauses) stating that Max Schrems is allowed to sue the Irish subsidiary of Facebook in Austria, but only on a personal basis and not as a class.
Facebook had argued that Schrems must his case to Ireland because he does not qualify as a consumer but as a business. Bobek’s opinion is in line with an earlier decision from the Higher Regional Court in Vienna that had found Schrems is not a commercial entity. Had Facebook won this part of the case, Schrems would have had to spend millions of euros to win the $500 euros he was claiming in the case.
However, Bobek’s opinion took Facebook’s side in regards to the class action matter. Schrems’ lawsuit claimed that Facebook violates European privacy law on several fronts, including by sharing user data with U.S. intelligence agencies, and asked for monetary compensation for all class members, which could cost Facebook more than 12 million euros. Bobek refuted the grounds for the class action, arguing it could only be admissible against an Austrian business and, since Facebook’s European operations are in Ireland, Schrems’ Austrian-based case would not apply. Bobek argued that making such a class action admissible would lead to “forum shopping” in the EU and create legal uncertainty.
Bobek’s opinion supports the decisions of two courts that Mr Schrems’ claims cannot proceed as class action on behalf of other consumers in Austrian courts. Although the court typically follows the opinions by Advocates General, they are non-binding. The final ruling of the CJEU’s five-judge panel is expected early next year. The case will also continue to proceed in the Austrian Supreme Court.