Procedural rights –  obligation for SAs to issue legally attackable decisions

Article(s) involved (national, EU, or other): Article 57(1)(f) GDPR and 78(1) and (2) GDPR

Problem

Some SAs  take the view that  “handling a complaint” in the sense of Article 57(1)(f) GDPR includes closing a case without any  investigation, without giving any reason, and without issuing any legally attackable decision on the matter.

As a result, SAs are sometimes rejecting, dismissing or closing a complaint (e.g. because they consider that they are not competent, that the complaint is frivolous or that some formal/substantive requirements are not met (cf. admissibility)), without adopting a formal administrative act that is legally attackable.

Some SAs also argue that complainants have no right to appeal a decision to close a case, as SAs do not have a duty to act anyway. Following this line of arguments, the judicial review provided for in Article 78 would only exist when the SA has not informed the complainant on the progress of the case, and not when the SA remains inactive. That is because the term “handling a complaint” is not defined.

Ideal Solution

To ensure that Article 78(2) of the GDPR provides for an effective judicial remedy, it is crucial to specify that “handling a complaint” (in Article 57(1)(f) GDPR) means looking into the complaint and issuing a formal decision. In other words, all  complaints must lead to a legally attackable decision, even if that decision is about rejecting/dismissing a complaint, and that such a decision can be appealed as per Article 78(1) GDPR.

The only exception to this obligation would be in cases where the complainant decides to voluntarily withdraw his or her complaint.

Proposed Solution

Concepts 11 and 12 would largely solve these issues.

Reference to specific noyb cases:

The LUX SA, in the Apollo and Rocketreach case, sent a letter to the complainant saying that the controllers was based outside of the EU and therefore cannot reach them. The status of this letter is unknown and is now subject to appeal before the Court 

Reference to EDPB documents/table:

EDPB internal document 02/2021 which provides a definition of the term ‘handle’ in para. 61. 

National administrative law in most Member States could be of inspiration, as (i) appeals against inactivity are mostly provided for and (ii) there is a duty to justify administrative decisions in almost all cases.