CNPD
COMMISSION
NATIONALE
POUR LA
PROTECTION
DES DONNEES
Deliberation No 43/RECL16/2023 of 9 June 2023 of the National Data Protection Commission, in a plenary session, on complaint file No 6.647 lodged against the company [REDACTED] via IMI Article 61 procedure 185234
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 of 1 August 2018 on the organisation of the National Data Protection Commission and the General Data Protection Regime (hereinafter referred to as the 'Law of 1 August 2018');
Having regard to the Rules of Procedure of the National Data Protection Commission adopted by Decision No 3AD/2020 of 22 January 2020 (hereinafter referred to as the 'ROP');
Having regard to the complaints procedure before the National Data Protection Commission 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 the 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 Supervisory Authority of Bavaria (Germany) submitted to the National Data Protection Commission (hereinafter: "the CNPD") the complaint of [REDACTED] (national reference of the concerned authority: LDA-1085.3-5614/20-I) via IMI in accordance with Article 61 procedure - 185234.
2. The complaint was lodged against the controller [REDACTED] ("[REDACTED]") who has its main establishment in Luxembourg. Under Article 56 GDPR, the CNPD is therefore competent to act as the lead supervisory authority.
3. The original IMI claim stated the following:
" Complainant wishes to delete his data. The company has not yet complied with the data erasure. "
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CNPD
COMMISSION
NATIONALE
POUR LA
PROTECTION
DES DONNÉES
Deliberation No 43/RECL16/2023 of 9 June 2023 of the National Data Protection Commission, in a plenary session, on complaint file No 6.647 lodged against the company [REDACTED] via IMI Article 61 procedure 185234
4. In essence, the complainant asks the CNPD to request [REDACTED] to close his account and delete all his personal data.
5. The complaint is therefore based on Article 17 GDPR.
6. On the basis of this complaint and in accordance with Article 57(1)(f) GDPR, the CNPD requested [REDACTED] 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, and in particular with regard to his right to erasure.
7. The CNPD received the requested information within the deadlines set.
## II. In law
### 1. Applicable legal provisions
8. Article 77 GDPR provides that "without prejudice to any other administrative or judicial remedy, every data subject shall have the right to lodge a complaint with a supervisory authority, (...) if the data subject considers that the processing of personal data relating to him or her infringes this Regulation";
9. In accordance with Article 17 of the GDPR "The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies (...)";
10. Article 56(1) GDPR provides that "(...) the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor in accordance with the procedure provided 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 in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other";
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CNPD
COMMISSION
NATIONALE
POUR LA
PROTECTION
DES DONNEES
Deliberation No 43/RECL16/2023 of 9 June 2023 of the National Data Protection Commission, in a plenary session, on complaint file No 6.647 lodged against the company [REDACTED] via IMI Article 61 procedure 185234
12. According to Article 60(3) GDPR, "The lead supervisory authority shall, without delay, communicate the 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 for their opinion and take due account of their views";
## 2. In the present case
13. Following the intervention of the Luxembourg supervisory authority, [REDACTED] confirmed that:
- It received the complainant's request for account closure and data deletion on 10 April 2020 for the customer account related to his e-mail address.
- [REDACTED] informed the complainant on the same day that there was an open order which was about to be dispatched and that they would proceed with his request to close his account after the order was received.
- [REDACTED] subsequently confirmed to the complainant on 14 April 2020 that they were processing his request.
- [REDACTED] then completed the complainant's request to close his account later in the same month.
- However, when the complainant contacted [REDACTED] on 2 June 2020 requesting a confirmation that [REDACTED] had processed his request, he received a response from [REDACTED] stating that customer service had not received his recent message, and explaining other ways of contacting customer service. [REDACTED] understands that this lead the complainant to doubt if they had processed his initial request from April 2020 (which it did).
## 3. Outcome of the case
14. The CNPD, in a plenary session, therefore considers that, at the end of the investigation of the present complaint, the controller has taken appropriate measures to grant the complainant's right to erasure, in accordance with Article 17 of the GDPR.
15. Thus, 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.
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CNPD
COMMISSION
NATIONALE
POUR LA
PROTECTION
DES DONNEES
Deliberation No 43/RECL16/2023 of 9 June 2023 of the National Data Protection Commission, in a plenary session, on complaint file No 6.647 lodged against the company [REDACTED] via IMI Article 61 procedure 185234
16. The CNPD then consulted the supervisory authority Bavaria, pursuant to Article 60(1), whether it agreed to close the case. The Supervisory Authority of Bavaria (Germany) has responded affirmatively, so that the CNPD has concluded that no further action was necessary and that the cross-border complaint could be closed.
In light of the above developments, the National Data Protection Commission, in a plenary session, after having deliberated, decides:
- To close the complaint file 6.647 upon completion of its investigation, in accordance with the Complaints Procedure before the CNPD and after obtaining the approval of the concerned supervisory authority.
Belvaux, dated 9 June 2023
The National Data Protection Commission
Chair
Commissioner
Commissioner
Commissioner
### 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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