Supreme Court: Test for interim stays on regulatory decisions of general effect reformulated

About this case:

• Citation:
  [2026] IEHC 27
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Brian Murray

Delivering the leading judgment for the Supreme Court, Mr Justice Brian Murray explained that the applicable test was one of national and not of EU law, and set out a seven-part approach to be applied by courts dealing with such applications.  

Background

On 30 April 2025, the Data Protection Commission (DPC) decided that the first named respondent (TikTok) had infringed the General Data Protection Regulation (GDPR) by its transfer of certain personal data of its users to jurisdictions outside the European Economic Area and directed the suspension of those data transfers, the bringing of the data processing into compliance with the GDPR and the payment of fines totalling €530 million.

TikTok initiated a statutory appeal against the decision pursuant to the Data Protection Act 2018.

In the High Court, Mr Justice Rory Mulcahy granted a stay on the first two parts of the DPC direction pending the hearing of the full statutory appeal, with the payment of the fines having been automatically stayed upon the commencement of the proceedings.

The DPC appealed against that decision, arguing that due to the EU-wide effect of its decision, the test applying to stays on administrative decisions which are subject to judicial review proceedings as outlined in Okunade v Minister for Justice [2012] 3 IR 152 did not apply.

The DPC contended that instead, a test developed by the Court of Justice of the European Union (CJEU) in the context of interim measures pending a decision as to the validity of a provision of EU law applied, which test was set out in in Joined Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v. Hauptzollamt Paderborn (EU:C:1991:65).

The Supreme Court granted leave to appeal on the issues of which test governed the stay application, and how that test fell to be applied in the case before it.

The Supreme Court

As to the applicable test, Mr Justice Murray determined that what was at issue in the case before the Court, as it was in Case C-432/05 Unibet (London) Ltd. v. Unibet (International) Ltd. (EU:C:2007:163) and Case C-213/89 R v. Secretary of State for Transport, ex parte: Factortame Ltd. & Ors (EU:C:1990:257), was “a national measure the legality of which will be judged by the standards applied by national law to all such decisions”.

Finding that it would be “surprising in those circumstances were EU law to prescribe the mechanisms that will protect the effectiveness of any remedy ultimately granted (subject of course to the national rules complying with principles of effectiveness and equivalence), and astonishing if the displacement of those rules were to occur implicitly and without any indication of a legislative intent to do so”.

In the circumstances, the Court rejected the DPC’s contention that the appropriate test to be applied was that in Zuckerfabrik.

The Court refused the DPC’s request to refer that issue to the CJEU where, inter alia, the proper resolution of the issue was so clear that a reference was not justified.

Mr Justice Murray noted that decisions of the DPC under Article 58 of the GDPR operate to protect the fundamental rights of EU citizens, and “it is the DPC – and not the courts – that has been vested by the legislator with the initial and significant responsibility of determining how those rights ought thus to be guarded within the framework of the GDPR”.

The judge pointed out that as with decisions of other regulators of commercial activity, the courts should be slow to suspend those determinations and recommended the approach to be taken by the courts in determining whether an interim order granting a stay should be made in cases involving the operation of regulatory decisions of general effect intended to protect users of services such as that in issue.

Mr Justice Murray highlighted that as per Okunade, there is no question of a stay being granted unless the applicant or appellant establishes that they have a stateable case and that only in exceptional circumstances should a stay be granted without identifying a strong case likely to succeed at trial.

The judge explained that where an applicant or appellant enjoys the prospect of recovering damages to compensate them for losses caused by a decision which is ultimately quashed and where there are reasonable grounds to believe that the harm resulting therefrom can be largely reduced to a claim for damages, “a stay should rarely issue” and that in the absence of any basis for such a claim in damages, the court should not analyse whether the harm caused is capable of calculation.

Mr Justice Murray indicated that from there, the court must strike a balance between the irreparable harm caused to the applicant or appellant if a stay is not imposed and they succeed in their claim, and the damage to the public interest in the administration of the statutory scheme if the stay is granted.

The judge outlined that while the presumptive validity of the regulatory decision is accounted for, the court must also consider that where a scheme is intended to protect the rights and interests of service users or the public at large, a stay should rarely issue where the protection of those entitlements will be endangered in any substantial way.

As to the usually irrecoverable expense incurred by the applicant or appellant in complying with a regulatory decision, Mr Justice Murray opined that this is “a cost of conducting business in certain sectors of the economy, and an inevitable consequence of the decision of the Oireachtas to establish powers of regulation in that field” and that something significantly more, “such as a clear and substantial disproportion between the cost to and impact upon the applicant or appellant if the decision is not stayed, and the impact upon the public interest reflected in the decision if it is stayed” is required.

The Court considered that the issue of whether TikTok had met the threshold of a “strong case” for the purposes of interim pre-trial relief had been overtaken by the fact that the substantive hearing had already concluded and elected to continue the stay unless and until the DPC decides that it is appropriate to seek to have the issue revisited before Mr Justice Mulcahy, who would be judging the strength of the case having heard the entire action.

Conclusion

Accordingly, the Supreme Court dismissed the DPC’s appeal.

TikTok Technology Limited & Anor v Data Protection Commission [2026] IESC 27