Preliminary findings and the right to be heard
1. Following the consultations and procedures under Articles 10 and 11 of this Regulation, where the lead supervisory authority intends to submit a draft decision within the meaning of Article 60(3) of Regulation (EU) 2016/679 finding an infringement of Regulation (EU) 2016/679 to the other supervisory authorities concerned, it shall draft preliminary findings.
2. The preliminary findings shall include the findings of the investigation and present allegations raised in an exhaustive and sufficiently clear manner to enable the parties under investigation to take cognisance of the conduct investigated by the lead supervisory authority. In particular, the preliminary findings shall set out clearly all the facts, the list of the evidence relied upon and the entire legal assessment raised against the parties under investigation, so that they can express their views on those facts and the legal conclusions the lead supervisory authority intends to draw in the draft decision within the meaning of Article 60(3) of Regulation (EU) 2016/679.
The preliminary findings shall indicate, based on the information available at that stage and without prejudice to the views of the parties under investigation, corrective measures the lead supervisory authority considers using.
Where the lead supervisory authority, based on the information available at that stage and without prejudice to the views of the parties under investigation, considers whether to impose an administrative fine in accordance with Article 83 of Regulation (EU) 2016/679, it shall list in the preliminary findings the main legal and factual elements, which are known to it, and on which it intends to rely when deciding whether to impose an administrative fine and on the amount of the fine, having regard to the elements listed in Article 83(2) of Regulation (EU) 2016/679, including any aggravating or mitigating factors it intends to take into account.
3. The lead supervisory authority shall transmit the preliminary findings to the other supervisory authorities concerned. Those authorities may provide comments on those findings to the lead supervisory authority within four weeks from the transmission of the preliminary findings to the other supervisory authorities concerned. Upon request of one of the other supervisory authorities concerned, the lead supervisory authority shall extend that period by two weeks.
4. The lead supervisory authority shall notify the preliminary findings, where relevant as amended to take into account comments provided by the other supervisory authorities concerned, to each of the parties under investigation.
5. The lead supervisory authority shall, when notifying the preliminary findings to the parties under investigation, set an appropriate time-limit no shorter than three weeks and no longer than six weeks from the date of notification, within which those parties may provide their views in writing, or hold a hearing within the same time-limit in order to hear the views of the parties under investigation orally.
6. When notifying the preliminary findings to the parties under investigation, the lead supervisory authority shall provide those parties with access to the administrative file in accordance with Articles 24 and 25.
7. The parties under investigation may, in their reply to preliminary findings, set out all facts and legal arguments known to them that are relevant to their defence against the allegations of the lead supervisory authority. They shall attach any relevant documents as proof of the facts set out. The lead supervisory authority shall base its draft decision only on the allegations and facts and the legal assessment based on those facts in respect of which the parties under investigation have been given the opportunity to provide their views.
Transmission of preliminary findings to complainants
1. Where the lead supervisory authority issues preliminary findings relating to a matter in respect of which it has received a complaint, the supervisory authority with which the complaint has been lodged shall provide the complainant with those preliminary findings, in accordance with rules on access to the administrative file and on confidential information under Articles 24 and 25, and the lead supervisory authority shall set an appropriate time-limit no shorter than three weeks and no longer than six weeks, within which the complainant may make his or her views known in writing.
2. For the purpose of paragraph 1, administrative modalities and requirements under national procedural law of the supervisory authority with which the complaint has been lodged shall continue to apply.
3. Paragraph 1 of this Article shall also apply where the lead supervisory authority:
(a)
handles a complaint jointly with other complaints;
(b)
handles a part of a complaint separately; or
(c)
modifies the scope of the investigation in the preliminary findings in any way, including after a binding decision of the Board pursuant to Article 11(8).
Adoption of final decision
1. After submitting the draft decision to the other supervisory authorities concerned pursuant to Article 60(3) of Regulation (EU) 2016/679 and where none of those other supervisory authorities object to the draft decision within the periods referred to in Article 60(4) or (5) of Regulation (EU) 2016/679, as applicable, the lead supervisory authority shall, within one month from the end of the period referred to in Article 60(4) or (5) of Regulation (EU) 2016/679:
(a)
adopt its decision referred to in Article 60(7) or, where applicable, Article 60(9), of Regulation (EU) 2016/679; and
(b)
notify the decision referred to in point (a) to the main establishment or single establishment of the controller or processor, as the case may be.
2. The information to be provided to the complainant pursuant to Article 60(7) and (9) of Regulation (EU) 2016/679 shall consist of:
(a)
a version of the decision adopted that includes its operative part in full and the grounds of that decision that do not include elements considered confidential in accordance with Article 25 of this Regulation; or
(b)
a summary of the decision adopted, including the relevant facts and grounds of that decision.
In any event, the complainant shall, upon request, be provided with a version of the decision referred to in the first subparagraph that includes its operative part in full and the grounds of that decision that do not include elements considered confidential in accordance with Article 25 of this Regulation.
Administrative modalities and requirements under the national procedural law of the lead supervisory authority shall continue to apply.
Right to be heard in relation to the revised draft decision finding an infringement
1. Where the lead supervisory authority determines that the revised draft decision within the meaning of Article 60(5) of Regulation (EU) 2016/679, finding an infringement of Regulation (EU) 2016/679, raises new elements on which the parties under investigation are to have the opportunity to make their views known, the lead supervisory authority shall, prior to the submission of the revised draft decision under Article 60(5) of Regulation (EU) 2016/679, provide the parties under investigation with the opportunity to make their views known on such new elements.
2. The lead supervisory authority shall set an appropriate time-limit no shorter than three weeks and no longer than six weeks within which the parties under investigation may make their views known.
3. The lead supervisory authority shall inform the other supervisory authorities concerned of the views made known by the parties under investigation, as soon as possible and no later than one week from when they become available.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
