Remedy against CSA/LSA in the context of the OSS
Article(s) involved (national, EU, or other): Articles 77 and 78 GDPR
Same as Issue 15 in the context of the OSS.
The text should be specify that, in the context of the OSS mechanism, the right to an effective against an the concerned SAs should entail:
- a positive duty to cooperate and a duty of the CSA to engage with the LSA in the case of inactivity;
- the possibility to ask the court to force the CSA receiving the complaint to act (investigate, address a request for cooperation under Article 60, take a decision on the admissibility of the complaint, etc);
- to order an SA to adopt a decision under Article 66 if the case is not moving fast enough;
- to order the SAs to adopt a decision under Article 56;
- to compensate the complainant for damages if the delay to handle the complaint is not duly justified by the SA.
Concept 5 shoudl be sufficient to ensure that LSAs comply with their duties. Additional clarifications on the remedy under Article 78 GDPR shoudl be added.
Reference to specific noyb cases:
Complaints against Instagram, Facebook and WhatsApp in Belgium, Austria and Germany, where the filing SAs refused to broaden the scope of the investigation conducted by the DPC, despite the numerous requests from noyb, and the EDPB decision after 5 years to side with noyb and force the DPC to investigate further. However, a large number of the points of the complaints remain not addressed after 5 years and noyb is struggling to force any of the SAs involved to investigate the complaint. Besides, the different SAs where the complaint was filed just informed noyb that the Irish SA issued a decision, under Article 60(7), which implies that the complaint was upheld, whereas the decision of the Irish SA does not adress all points of the complaint, and is therefore a partial rejection, which should lead to a decision by the BE, DE and AT SAs under Article 60(8) GDPR. This (negative) decisions can be challenged before their respective national courts. The possibility to challenge the decision of the SA where the complaint is filed is therefore depending on the SA itself, which can wrongly qualify the decision and instead, simply inform the complainant. This “information” is not a “decision”, which may make it difficult to be challenged before the courts.
To be appreciated together with the discretionary powers of administrative bodies.