Concept 4: Separate procedural decisions from final decision and early European resolutions on procedural disagreements
Under the current practice, SAs are meant to “cooperate” throughout the procedure. However, in practice, CSAs are only left to raise reasoned objections at the end of a national procedure, unless an LSA actively involves a CSA during the course of the procedure.
When errors already happen at an early stage because of incorrect procedural decisions (scope of procedures, lack of investigations, party rights not granted, etc.), CSAs currently take the view that they are only left with filing a reasoned objection at the end of the procedure; sometimes years later.
This is not only inefficient, but in certain cases it is impossible to file a “relevant and reasoned objection”. For example, when key elements were not even investigated, but these elements would be the basis for an objection. There could be room to interpret Articles 60 and 61 GDPR to also allow CSAs to make specific and early requests with the LSA to take certain steps, but most SAs fear that any use of these systems, including Article 66 GDPR, would not be useful; and/or would upset other SAs too much.
In particular, filing CSAs may get into a very complicated situation as they may have to defend procedural shortcomings by the LSA before appeals courts when a decision is issued by them under Article 60(8) or (9) GDPR, while they do not have any real influence over the procedure.
From the perspective of the parties, it is problematic that they may have rights under national law before a CSA to demand certain steps (e.g. a specific investigation, hearing a witness or just access to documents), but the local CSA may take the position that the LSA is free to take such steps or not (e.g. not provide documents, thereby undermining the right to access to documents at the filing CSA). This may mean that national rights of parties are practically impossible to comply with, as these rights only reach the CSA, but not the LSA. There is currently no “link” between national procedures that would allow parties to directly (or indirectly via the national SA) apply for certain steps by the LSA. Article 60 and 61 GDPR would allow for such “mutual assistance”, but CSAs currently take the view that they cannot force an LSA to comply with these obligations.
Regarding redress for procedural mistakes, it is common that these mistakes can “heal” under national law when they do not influence the outcome of the procedure. In many jurisdictions, there is therefore a limitation on judicial remedies during an ongoing investigation, as such issues shall only be raised in a final appeal. In other jurisdictions there is, however, an option to raise such issues instantly with a court (e.g. Judicial Review in Ireland), which leads to a (lengthy) pause of the pending procedure
(e.g. 2-3 years in Ireland).
There seems to be no remedy between CSAs, LSAs and the EDPB, when local SAs do not follow requests under Articles 60-66 GDPR. Consequently, there seems to be a need to ensure that remedies against procedural decisions are treated in fast, simple and a coherent way.
It would therefore seem advisable to define procedural decisions (in addition to “draft decisions” under Article 60 GDPR), introduce a quick procedure for preliminary procedural decisions (e.g. to investigate a matter, hear a party or collect evidence or not) between SAs, with a clear European decision making process, if there is disagreement of SAs. This would allow a European decision making process to take place before the final “draft decision” and expand the option to get a European determination on situations that arise already during earlier stages of a procedure. Solving such issues early (such as the scope of a case) could ensure that inefficient re-runs of procedures can be avoided. While the EDPB seems to be best placed to settle such disputes, the full EDPB panel may not be necessary for such minor decisions. See below for the option to create a sub-committee of the EDPB for solving minor disagreements.
- Early cooperation during the ongoing procedure (e.g. the scope or agreement on the necessary investigations) can eliminate frustrated procedures and larger disputes at a later stage.
- Quick decision making on procedural disagreements could ensure that SAs have legal certainty as soon as possible, and do not have to wait until a draft decision is issued to intervene (when it is too late to fix the problem).
- There could be more need for decision making on a European level. This could be countered with a standing sub-committee of the EDPB, which could act as an arbitrator for minor disputes (see next concept).