Factual and Procedural Background
The Applicants sought a stay of part of the Respondent’s investigation into suspected breaches of Article 20 of Regulation (EU) 2022/2065, pending determination of their judicial review challenge. The challenge concerns a direction dated 24 October 2025 and a notice commencing an investigation dated 12 November 2025. [1][2][3][4]
The investigation concerns whether the provider of Platform X failed to provide an effective, accessible and user-friendly internal complaint-handling or appeals mechanism. The Respondent considered that the precise identity of the legal entities forming the economic unit providing Platform X remained to be established. [5][6][7][8]
The Applicants contended that the Notice Party alone provides Platform X in the European Union, whereas the Respondent maintained that the provider’s precise scope had not yet been determined. The European Commission subsequently concluded that the provider comprised the Notice Party, the Applicants and another group entity. [9][10][11][12]
Leave to seek judicial review was granted on 8 December 2025, including relief seeking to quash the direction and notice and a possible reference under Article 267 TFEU. [13][14]
Legal Issues Presented
- Whether the Applicants should receive a stay preventing the Respondent from investigating the identity and scope of the provider of Platform X pending the judicial review proceedings. [4][15]
- Where the greatest risk of injustice lay under the principles in Okunade v Minister for Justice. [16][17][18]
- Whether the public interest, the prima facie validity of the investigation measures and the Applicants’ alleged risks of irreparable harm justified granting or refusing the stay. [19][20][21]
Arguments of the Parties
Applicants’ Arguments
- The Respondent lacked jurisdiction to investigate the Applicants without first determining that they were relevant intermediary service providers. [22][23][24]
- The Applicants maintained that the Notice Party alone provided Platform X in the European Union and that the Respondent could not expand the identity of the provider beyond the European Commission’s designation decision. [23][25][26]
- They argued that continuing the investigation could expose them to intrusive information-gathering powers, interim measures, criminal sanctions, substantial costs, operational disruption and disclosure of confidential information. [27][28][29][30][31]
- They submitted that continuation could deprive them of an effective remedy because the investigation might conclude before the substantive challenge and its consequences could not be undone. [32][33]
- They argued that the proposed stay would be limited to investigating the provider’s identity and would not prevent investigation of compliance with Article 20 by the Notice Party. [34][35]
Respondent’s Arguments
- The Respondent argued that the Notice Party’s status as the main establishment did not determine the complete identity of the provider. [36][12]
- It relied on the European Commission’s later decision identifying the provider as comprising the Notice Party, the Applicants and another group entity. [12][37]
- It submitted that a stay would significantly interfere with the Respondent’s statutory functions and the effective enforcement of the Digital Services Regulation throughout the European Union. [38][39]
- It argued that Article 20 protects users’ ability to challenge content-moderation decisions and that the investigation concerned potentially harmful content affecting users across the European Union. [40][41][42]
- It maintained that the Applicants’ rights and fair procedures were protected during the investigation and that later appeals or judicial review would provide an effective remedy. [43][44][45]
- It argued that the alleged harm was speculative because no findings, interim measures, sanctions or criminal proceedings had yet occurred. [46][47]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Okunade v Minister for Justice [2012] 3 IR 152 | Stay applications require an arguable case followed by assessment of the greatest risk of injustice, including public-interest and applicant-consequence factors. | The Court applied this as the governing test. [16][48][18] |
| Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn (EU:C:1991:65) | EU-law interim-measures principles. | The Court noted that the test was not applicable where the validity of an EU measure was not challenged and the claim was based on national law. [16] |
| Aer Lingus Ltd. v Irish Aviation Authority [2024] IEHC 625 | Rejection of applying the Zuckerfabrik test in the relevant circumstances. | The Court relied on it in explaining why the domestic Okunade test applied. [16] |
| TikTok Technology Ltd v Data Protection Commission [2025] IEHC 619 | Rejection of the proposed Zuckerfabrik approach in the relevant context. | The Court referred to it as supporting application of the domestic test. [16] |
| MD v Board of Management of a Secondary School [2024] IESC 11 | Stays are not available as of right; prima facie valid public-law measures should ordinarily proceed in an orderly manner. | The Court emphasised that stays must not be granted reflexively or routinely. [49][50][51] |
| Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65; [2020] 2 IR 1 | Reinforcement of the public-interest considerations governing suspension of public-law measures. | The Court cited it through MD. [50] |
| Word Perfect Translation Services Ltd. v Minister for Public Expenditure and Reform [2019] 2 IR 503 | An interim measure may be necessary where, without it, no effective remedy would remain. | The Court distinguished the principle by treating effective remedy as one factor within the Okunade balance. [32][52][53][54] |
| Three Ireland (Hutchinson) Ltd & Ors v Commission for Communications Regulation [2022] IECA 300 | The purpose of interim measures is to preserve the effectiveness of the final judgment. | The Court accepted the general principle but found insufficient evidence of irreparable harm here. [32][55][56][57] |
| Rowland v An Post [2017] 1 IR 355 | Courts may intervene in an incomplete investigative process where it has gone irredeemably wrong. | The Court held that this authority permits, but does not require, intervention and does not displace Okunade. [58][59][60] |
| Ivers v The Commissioner of An Garda Síochána [2022] IECA 206 | Authority concerning intervention in disciplinary contexts. | The Court distinguished it as arising in an employment or disciplinary setting. [61][62] |
| Barrett v The Commissioner of An Garda Síochána [2023] IECA 112 | Authority concerning disciplinary proceedings. | The Court regarded it as arising in a materially different context. [61][62] |
| McKelvey v Iarnród Éireann [2019] IESC 79 | Authority concerning disciplinary processes. | The Court distinguished it from the present regulatory investigation. [61][62] |
| Murphy v Commissioner of An Garda Síochána [2023] IECA 92 | Authority concerning disciplinary proceedings. | The Court treated it as contextually distinct. [62] |
| Facebook Ireland Ltd v Data Protection Commissioner [2021] IEHC 336 | Application of Rowland in a substantive judicial-review challenge to an inquiry. | The Court held that it did not analyse the Okunade stay test and therefore did not support the Applicants’ stay argument. [63][64] |
| Google Ireland Ltd v Data Protection Commission [2024] IEHC 577 | Challenge to the commencement of a regulatory inquiry. | The Court noted that it was decided after the substantive hearing and did not address Okunade. [63][65][66] |
| Dowling v Minister for Finance [2013] 4 IR 576 | The domestic stay test satisfies the requirements of an effective remedy. | The Court treated alleged irreparable harm as a factor to be weighed, not an automatic basis for a stay. [67][52] |
| X Internet Unlimited Company v Coimisiún na Meán [2026] IEHC 127 | Application of the Okunade approach in a related regulatory context. | The Court found its reasoning persuasive but decided the present application independently. [68][60][69][70] |
| ByteDance Ltd v Coimisiún na Meán [2026] IEHC 196 | The greatest-risk-of-injustice assessment under Okunade. | The Court considered it persuasive but based its decision on the facts and evidence of the present case. [71][72][73][70] |
| Amazon Services Europe v European Commission (Case C-639/23 P(R), Order of 27 March 2024) | The importance of the Digital Services Regulation and the risks of delaying its application. | The Court relied on its observations in assessing the public interest in continuing the investigation. [20][74][75] |
| Curtin v Dáil Éireann [2006] 2 IR 556 | Presumption that public bodies will act consistently with constitutional justice. | The Court relied on this presumption alongside the statutory procedural safeguards. [76] |
| Dellway Investment Ltd and Ors v NAMA and Ors [2011] 4 IR 1 | Constitutional-justice safeguards in public decision-making. | The Court cited it in support of the fairness protections available during the investigation. [76] |
Court's Reasoning and Analysis
The Respondent accepted that the Applicants had an arguable case. The decisive question was therefore where the greatest risk of injustice lay under Okunade. [17][18]
The Direction and Notice of Commencement were prima facie valid, and the Applicants did not challenge the underlying legislation. The Court held that substantial weight had to be given to allowing the Respondent’s statutory investigation to proceed in an orderly manner. [77][19]
The Court rejected the argument that a jurisdictional challenge automatically reduced the weight of prima facie validity. The authorities relied on by the Applicants concerned different procedural or disciplinary contexts and did not displace the Okunade framework. [78][59][62][60]
Article 82(3) of the Digital Services Regulation also required the Court to avoid decisions contrary to a European Commission decision. The Commission had concluded that the provider comprised the Notice Party, the Applicants and another group entity. This reinforced the weight given to permitting the investigation to proceed. [79][80][81]
The public interest was significant because Article 20 protects users’ ability to challenge content-moderation decisions, while the Respondent has responsibility for enforcement across the European Union. The Court considered that delaying the investigation could undermine the safe and trusted online environment pursued by the Digital Services Regulation. [20][82][83][84]
The Court rejected the proposed distinction between investigating provider identity and investigating Article 20 compliance. Since Article 20 obligations attach to providers, a proper investigation required identification of all relevant providers and access to the information necessary to assess compliance and formulate any corrective orders. [85][86][87]
The Applicants had not established irreparable harm. The investigation had only begun; no findings, interim measures, sanctions or criminal proceedings had occurred. The alleged consequences were therefore speculative. [88][89][90]
The statutory process contained opportunities to respond, protections against self-incrimination, access to the draft investigation report, rights to make submissions, possible oral hearings and rights of appeal. The Court considered that these safeguards, together with the possibility of judicial review, provided an effective remedy. [91][92][93][94][95][96]
The evidence concerning business disruption, costs, staffing, confidential information and the effect of the “single economic entity” concept was general or unsupported by direct evidence from the First Applicant. The Court was not satisfied that these matters constituted irreparable harm. [97][98][99][100]
Finally, the potentially lengthy duration of a stay, particularly if an Article 267 TFEU reference were made, weighed against granting it. [101][102]
Holding and Implications
The application for a stay was refused. The Court held that the prima facie validity of the investigation measures, the public interest in effective enforcement of the Digital Services Regulation and the risk of regulatory harm substantially outweighed the Applicants’ asserted prejudice. [103][104]
The interim stay previously in place lapsed. The Respondent was therefore permitted to continue its investigation pending determination of the judicial review proceedings. [105][106]
The decision applied existing stay principles to the particular facts and did not state that a new precedent was established. [70][107]