In the matter of the General Data Protection Regulation
DPC Complaint Reference:
IMI Complaint Reference Number:
In the matter of a complaint, lodged by with the Berliner Beauftragte für
Datenschutz und Informationsfreiheit pursuant to Article 77 of the General Data Protection
Regulation, concerning National Pen Promotional Products Limited
Record of Amicable Resolution of the complaint and its consequent withdrawal pursuant to
Section 109(3) of the Data Protection Act, 2018
Further to the requirements of EDPB Guidelines 06/2022 on the practical implementation of
amicable settlements Version 2.0 (adopted on 12 May 2022)
RECORD OF AMICABLE RESOLUTION FOR THE
PURPOSE OF EDPB GUIDELINES 06/2022 ON THE
PRACTICAL IMPLEMENTATION OF AMICABLE
SETTLEMENTS VERSION 2.0, ADOPTED 12 MAY 2022
Dated the 18th day of September 2023
Data Protection Commission
21 Fitzwilliam Square South
Dublin 2, Ireland
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Background
1. On 24 May 2022, (“the Data Subject”) lodged a complaint pursuant to Article 77
GDPR with the Berliner Beauftragte für Datenschutz und Informationsfreiheit (“the Recipient
SA”) concerning National Pen Promotional Products Limited (“the Respondent”).
2. In circumstances where the Data Protection Commission (“the DPC”) was deemed to be the
competent authority for the purpose of Article 56(1) GDPR, the Recipient SA transferred the
complaint to the DPC on 26 July 2022.
The Complaint
3. The details of the complaint were as follows:
a. On 21 March 2022, The Data Subject sent a fax to the Respondent wherein they
requested access to their personal data pursuant to Article 15 GDPR and objected to
the further processing of their data for the purposes of advertising.
b. No response was received to the fax and, accordingly, the Data Subject submitted a
complaint to the Recipient SA.
Action taken by the DPC
4. The DPC, pursuant to Section 109(4) of the Data Protection Act, 2018 (“the 2018 Act”), is
required, as a preliminary matter, to assess the likelihood of the parties to the complaint
reaching, within a reasonable time, an amicable resolution of the subject-matter of the
complaint. Where the DPC considers that there is a reasonable likelihood of such an amicable
resolution being concluded between the parties, it is empowered, by Section 109(2) of the
2018 Act, to take such steps as it considers appropriate to arrange or facilitate such an
amicable resolution.
5. Following a preliminary examination of the material referred to it by the Recipient SA, the DPC
considered that there was a reasonable likelihood of the parties concerned reaching, within a
reasonable time, an amicable resolution of the subject matter of the complaint. The DPC’s
experience is that complaints of this nature are particularly suitable for amicable resolution in
circumstances where there is an obvious solution to the dispute, if the respondent is willing
to engage in the process. In this regard, the DPC had regard to:
a. The relationship between the Data Subject and Respondent being, in this case, an
individual consumer and a service provider; and
b. The nature of the complaint in this case, an unsuccessful attempt by the Data Subject
to exercise their data subject rights.
6. While not relevant to the assessment that the DPC is required to carry out pursuant to Section
109(4) of the 2018 Act, the DPC also had regard to EDPB Guidelines 06/2022 on the practical
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implementation of amicable settlements Version 2.0, adopted on 12 May 2022 (“Document
06/2022”), and considered that:
a. the possible conclusion of the complaint by way of amicable resolution would not
hamper the ability of the supervisory authorities to maintain the high level of
protection that the GDPR seeks to create; and that
b. such a conclusion, in this case, would likely carry advantages for the Data Subject,
whose rights under the GDPR would be vindicated swiftly, as well as for the controller,
who would be provided the opportunity to bring its behaviour into compliance with
the GDPR.
Amicable Resolution
7. The DPC engaged with both the Data Subject (via the Recipient SA) and Respondent in relation
to the subject matter of the complaint. On 10 October 2022, the DPC wrote to the Respondent
formally commencing its investigation and requesting that it address the concerns raised.
8. In response, the Respondent explained that, at the end of June 2022, it came to its attention
that the fax had been received but that, due to an oversight, it had never been processed. The
Respondent then immediately contacted the Data Subject and provided the requested
information. The DPC requested evidence to demonstrate the actions taken by the
Respondent, which the Respondent duly provided. As such, the DPC was able to verify that
the Data Subject’s request had been responded to in full.
9. However, the Data Subject continued to express some dissatisfaction with the time taken for
the Respondent to respond to his access request. Following further engagement from the
DPC, the Respondent explained that on 7 July 2022 (and prior to the receipt of the complaint
by the DPC), its legal representatives had reached an agreement with the Data Subject in
relation to the complaint and a sum of money was transferred to the Data Subject’s account
as a settlement to the dispute. The Respondent provided the DPC with evidence
demonstrating the payment of the settlement monies, as well as written confirmation from
the Data Subject, addressed to the Respondent’s legal representatives, that the matter had
now been settled. The Respondent’s response to the DPC also noted that its legal
representatives had since reached out to the Data Subject again (following the concerns
highlighted by the DPC in relation to the Data Subject’s continued dissatisfaction) on 3 July
2023 and that the Data Subject had confirmed to it that they did not want any further
discussions because they consider the matter resolved.
10. In light of the explanations provided by the Respondent as set out above, the fact that it had
already complied in full with the Data Subject’s access request, and the evidence it provided
to demonstrate that the Data Subject was now satisfied that the matter had been resolved
and had formally agreed to the conclusion of their complaint, the DPC considered it
appropriate to conclude the complaint by way of amicable resolution. Accordingly, on 14 July
2023, the DPC wrote to the Data Subject (via the Recipient SA) proposing an amicable
resolution to the complaint. In the circumstances, the DPC asked the Data Subject to notify it,
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within a specified timeframe, if they were not satisfied with the outcome, so that the DPC
could take further action. On 20 July 2023, the Recipient SA replied to the DPC confirming that
the Data Subject considered the matter resolved, and provided the DPC with correspondence
received from the Data Subject demonstrating their confirmation in this regard. Accordingly,
the complaint has been deemed to have been amicably resolved.
11. On 4 August 2023, and in light of the foregoing, the DPC wrote to the Recipient SA noting that
the DPC considered the complaint to have been amicably resolved and withdrawn in
accordance with section 109(3) of the Act and that it would conclude the case and inform the
Respondent.
12. In circumstances where the subject matter of the complaint has been amicably resolved, in
full, the complaint, by virtue of Section 109(3) of the 2018 Act, is deemed to have been
withdrawn by the Data Subject.
Confirmation of Outcome
13. For the purpose of Document 06/2022, the DPC confirms that:
a. The complaint, in its entirety, has been amicably resolved between the parties
concerned;
b. The agreed resolution is such that the object of the complaint no longer exists; and
a. Having consulted with the supervisory authorities concerned on the information set
out above, as required by Document 06/2022 the DPC has now closed off its file in
this matter.
14. If dissatisfied with the outcome recorded herein, the parties have the right to an effective
remedy by way of an application for judicial review, by the Irish High Court, of the process
applied by the DPC in the context of the within complaint.
Signed for and on behalf of the DPC:
_____________________________
Deputy Commissioner
Data Protection Commission
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