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Deliberation No 18/RECL8/2022 of 10 June 2022 of the National Commission for Data Protection sitting in plenary session on complaint file No 2.882 lodged against
Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the 'GDPR');
Having regard to the Act of¹ August 2018 on the organisation of the National Commission for Data Protection and the General Data Protection Regime (hereinafter referred to as the 'Law of¹ August 2018');
Having regard to the Rules of Procedure of the National Commission for Data Protection adopted by Decision No 3AD/2020 of 22 January 2020 (hereinafter referred to as the 'ROI');
Having regard to the complaints procedure before the National Commission for Data Protection adopted on 16 October 2020 (hereinafter referred to as the 'Complaint Procedure before the CNPD');
Having regard to the following:
# I. Facts and procedure
1. In the framework of European cooperation, as provided for in Chapter VII of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR), the Austrian Supervisory Authority submitted to the National Data Protection Commission (hereinafter: "the CNPD") the complaint of (national reference of the authority concerned: D130.209) via IMI in accordance with Article 56-60144 procedure.
2. The complaint was lodged against the controller which has its principal place of business in Luxembourg. Under Article 56 GDPR, the CNPD is therefore competent to act as the lead supervisory authority.
3. The initial claim in IMI stated the following:
"Austrian complainant lodged complaint against respondent with main establishment in Luxembourg because there was no Reply to a request for Access within a month.
4. In essence, the complainant asked the CNPD to intervene with the controller to give access to the complainant's data within one month.
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Deliberation No 18/RECL8/2022 of 10 June 2022 of the National Commission for Data Protection sitting in plenary session on complaint file No 2.882 lodged against
5. The complaint is therefore based on Article 15 GDPR.
6. On the basis of this complaint and pursuant to Article 57(1)(f) GDPR, the CNPD requested the controller to take a position on the facts reported by the complainant and in particular to provide a detailed description of the issue relating to the processing of the complainant's data, in particular as regards her right of access.
7. The controller provided the requested information within the time limits set by the CNPD.
## II. In law
### 1. Applicable legal provisions
8. Article 77 GDPR provides that "without prejudice to any other administrative or judicial remedy, any data subject shall have the right to lodge a complaint with a supervisory authority, (...) if he considers that the processing of personal data concerning him or her constitutes a breach of this Regulation."
9. In accordance with Article 15 GDPR "The data subject shall have the right to obtain from the controller confirmation that personal data concerning him or her are being processed and, where such data are processed, access to such personal data and the following information (...)".
10. Article 56(1) GDPR states that "the supervisory authority of the main establishment or single establishment of the controller or processor shall be competent to act as the lead supervisory authority in respect of the cross-border processing carried out by that controller or processor in accordance with the procedure laid down in Article 60";
11. According to Article 60(1) GDPR, "The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article by endeavouring to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange any relevant information;
12. According to Article 60(3) GDPR, "The lead supervisory authority shall, without delay, communicate relevant information on the matter to the other supervisory authorities concerned. It shall without delay submit a draft decision to the other supervisory authorities concerned with a view to obtaining their opinion and shall take due account of their views".
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Deliberation No 18/RECL8/2022 of 10 June 2022 of the National Commission for Data Protection sitting in plenary session on complaint file No 2.882 lodged against
## 2. In the present case
13. Following the intervention of the Luxembourg supervisory authority, the controller confirmed that:
- sent a letter requesting information under Article 15 GDPR, which was received on 7 November 2018 and the controller replied on 27 November 2018;
- then sent additional questions, which she asked on 11 December 2018 and 31 January 2019. In response, the controller granted access to her personal data by sending a document containing her personal data on 18 March 2019;
- On 29 March 2019, the email address recorded in 's profile was deleted by the controller, as requested by the complainant. Confirmation of deletion was sent to the complainant on the same day;
- On 30 March 2019, requested a further confirmation of the deletion of the same email address. On 9 April 2019, the controller confirmed the deletion of the corresponding email address by telephone and e-mail once again.
- The controller realised that this access to 's personal data had actually been granted to her after the legal deadline, which was why apologised. After internal investigation, it appears that this unexpected situation was caused by technical problems, combined with the end of the year rush and the holiday period at that time. Once the technical problem was detected and eliminated, access was granted and the document containing the personal data had been sent to
- Finally, the controller drew the attention of its employees and business partners to the importance of this issue and to the fact that timelines are essential for processing customer access requests. Such a situation should therefore no longer be repeated.
### 3. Outcome of the case
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Deliberation No 18/RECL8/2022 of 10 June 2022 of the National Commission for Data Protection sitting in plenary session on complaint file No 2.882 lodged against
14. The Plenary Training therefore considers that, following the investigation of this complaint, the controller has taken the appropriate steps to grant the complainant's request for access, in accordance with Article 15 of the General Data Protection Regulation.
15. Therefore, in the light of the foregoing, and the residual nature of the gravity of the alleged facts and the degree of impact on fundamental rights and freedoms, it does not appear necessary to continue to deal with that complaint.
16. The CNPD then consulted the Austrian supervisory authority under Article 60(1) if it agreed to close the case. The Austrian supervisory authority replied in the affirmative, with the result that the CNPD came to the conclusion that no further action was necessary and that the cross-border complaint could be closed.
In view of the above, the CNPD, sitting in plenary and deliberating unanimously, decided:
- close complaint file No. 2.882 upon completion of its investigation, in accordance with the complaints procedure before the CNPD and after obtaining the agreement of the authority concerned.
Thus decided in Belvaux on 10 June 2022.
The National Commission for Data Protection
Chair
Commissioner Commissioner
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CNPD
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Deliberation No 18/RECL8/2022 of 10 June 2022 of the National Commission for Data Protection sitting in plenary session on complaint file No 2.882 lodged against
## Indication of remedies
This Administrative Decision may be the subject of an appeal for amendment within three months of its notification. Such an action must be brought by the interested party before the administrative court and must be brought by a lawyer at the Court of one of the Bar Associations.
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