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EDPBI:LU:OSS:D:2023:948 — LU SA final decision (Article 17 (Right to erasure (‘right to be forgotten’)))

Deliberation No 84/RECL30/2023 of 22 September 2023 of the
National Data Protection Commission, in a plenary session, on
complaint file No 6.035 lodged against the company via IMI
Article 61 procedure 161989

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
(national reference of the concerned authority: ) via IMI in
accordance with Article 61 procedure - 161989.

2. The complaint was lodged against the controller
(‘ ), 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:

“The complainant wants his seller account to be deleted as he no longer acts as
a seller. The seller has a new e-mail address, so he is no longer able to access
it.”

4. In essence, the complainant asks the CNPD to request to close his
seller account and delete any related 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 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
request for 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”;

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, the controller
confirmed that:

 The complainant requested the closure of his seller account in April and
May 2020.

 As the complainant’s requests originated from his new email address and not from
the email address linked with his seller account, was initially not
able to comply with the requests due to the requirement to verify his identity.

 In addition, the complainant’s seller account was deactivated because of
outstanding debts which needs to be cleared before could process the
request.

 had then reached out to the complainant to solve the issue and then
proceeded with the closure and deletion of his seller account.

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.

16. The CNPD then consulted the supervisory authority of Bavaria (Germany),
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 6.035 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 22 September 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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