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Article 65
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Dispute resolution by the Board

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Key words related to article 65

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(136) In applying the consistency mechanism, the Board should, within a determined period of time, issue an opinion, if a majority of its members so decides or if so requested by any supervisory authority concerned or the Commission. The Board should also be empowered to adopt legally binding decisions where there are disputes between supervisory authorities. For that purpose, it should issue, in principle by a two-thirds majority of its members, legally binding decisions in clearly specified cases where there are conflicting views among supervisory authorities, in particular in the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned on the merits of the case, in particular whether there is an infringement of this Regulation.

There is no recital in the Directive related to article 65.

The GDPR

Article 65 requires the Board to issue a binding decisions to the authorities concerned, particularly in situations of “blockage” at the national level, in order to ensure a correct and consistent application of the Regulation.

The Board shall adopt a binding decision in the following cases:

- where, in a case referred to in Article 60(4), a supervisory authority concerned has raised a relevant and reasoned objection to a draft decision of the lead authority or the lead authority has rejected such an objection as not being relevant or reasoned.  The Board shall then examine all the issues that are subject to the relevant and reasoned objection, in particular to investigate any potential infringement of the Regulation (paragraph 1, a)).The notion “relevant and reasoned objection” is understood as an objection to whether there is an infringement of this Regulation or whether the action to be taken in respect of the controller or the processor complies with the Regulation. The objection shall clearly demonstrate the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union (Art. 4 (24).

- where there are conflicting views on which of the supervisory authorities concerned is competent for the main establishment (paragraph 1, b));

- where a competent supervisory authority does not request the opinion of the Board in the cases referred to in Article 64 (1), or does not follow the opinion of the Board issued under Article 64. In that case, any supervisory authority concerned or the Commission may communicate the matter to the Board (paragraph 1, c)).

The decision shall be adopted within one month by a two-thirds majority of the members of the Board; that period may be extended by a further month on account of the complexity of the subject-matter. The decision shall be reasoned, binding and addressed to the lead supervisory authority and all the supervisory authorities concerned (paragraph 2). Where the Board has been unable to adopt a decision within the aforementioned period, it shall adopt its decision within two weeks following the expiration of the second month by a simple majority of the members of the Board. Where the members of the Board are split, the decision shall by adopted by the vote of its Chair (paragraph 3).  The supervisory authorities concerned shall not adopt a decision on the subject matter submitted to the Board under paragraph 1 during these periods (paragraph 4).

The Chair of the Board shall notify the decision to the supervisory authorities concerned (paragraph 5). The decision shall be published on the website of the Board without delay after the supervisory authority has notified the final decision referred to in paragraph 6.

The lead supervisory authority or, as the case may be, the supervisory authority with which the complaint has been lodged shall adopt its final decision on the basis of the binding decision of the Board, without undue delay and at the latest by one month after the Board has notified it of the decision. The aforementioned authority shall inform the Board of the date when its final decision is notified respectively to the controller or the processor and to the data subject (paragraph 6).

The final decision of the supervisory authorities concerned shall be adopted in accordance with the procedure of cooperation as defined in Article 60 (7), (8) and (9) of the Regulation. The final will be published on the website of the Board and attach the decision of the Board (paragraph 6).

The Directive

The European Data Protection Board did not exist under the Directive.

Potential issues

We do not see  a priori  any specific implementation difficulties.

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Summary

European Union

European Union

European Data Protection Board

Guidelines 03/2021 on the application of Article 65(1)(a) (24 May 2023)

Article 65(1)(a) GDPR is a dispute resolution mechanism meant to ensure the correct and consistent application of the GDPR in cases involving cross-border processing of personal data. It aims to resolve conflicting views among the LSA(s) and CSA(s) on the merits of the case, in particular whether there is an infringement of the GDPR or not, in order to ensure the correct and consistent application of the GDPR in individual cases. These Guidelines clarify the application of the dispute resolution procedure under Article 65(1)(a) GDPR.

Article 65(1)(a) GDPR requires the EDPB issues a binding decision whenever a Lead Supervisory Authority (LSA) issues a draft decision and receives objections from Concerned Supervisory Authorities (CSAs) that either it does not follow or it deems to be not relevant and reasoned.

These Guidelines clarify the applicable legal framework and main stages of the procedure, in accordance with the relevant provisions of the Charter of Fundamental Rights of the European Union, the GDPR and EDPB Rules of Procedure. The Guidelines also clarify the competence of the EDPB when adopting a legally binding decision on the basis of Article 65(1)(a) GDPR. In accordance with Article 65(1)(a) GDPR, the EDPB binding decision shall concern all the matters which are the subject of the relevant and reasoned objection. Consequently, the EDPB will first assess whether the objection(s) raised meet the “relevant and reasoned” standard set in Article 4(24) GDPR. Only for the objections meeting this threshold, the EDPB will take a position on the merits of the substantial issues raised. The Guidelines analyse examples of objections signalling disagreements between the LSA and CSA(s) on specific matters and clarify the EDPB’s competence in each case. The Guidelines also clarify the applicable procedural safeguards and remedies, in accordance with the relevant provisions of the Charter of Fundamental Rights of the European Union, the GDPR and EDPB Rules of Procedure. In particular, these Guidelines address the right to be heard, the right of access to the file, the duty for the EDPB to provide reasoning for its decisions, as well as a description of the available judicial remedies. These Guidelines do not concern dispute resolution by the EDPB in cases where: (1) there are conflicting views on which of the supervisory authorities concerned is competent for the main establishment (Article 65(1)(b) GDPR); or (2) a competent supervisory authority does not request the opinion of the Board in the cases referred to in Article 64(1), or does not follow the opinion of the Board issued under Article 64 (Article 65(1)(c) GDPR).

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Regulation
1e 2e

Art. 65

1.   In order to ensure the correct and consistent application of this Regulation in individual cases, the Board shall adopt a binding decision in the following cases:

(a) where, in a case referred to in Article 60(4), a supervisory authority concerned has raised a relevant and reasoned objection to a draft decision of the lead authority or the lead authority has rejected such an objection as being not relevant or reasoned. The binding decision shall concern all the matters which are the subject of the relevant and reasoned objection, in particular whether there is an infringement of this Regulation;

(b) where there are conflicting views on which of the supervisory authorities concerned is competent for the main establishment;

(c) where a competent supervisory authority does not request the opinion of the Board in the cases referred to in Article 64(1), or does not follow the opinion of the Board issued under Article 64. In that case, any supervisory authority concerned or the Commission may communicate the matter to the Board.

2.   The decision referred to in paragraph 1 shall be adopted within one month from the referral of the subject-matter by a two-thirds majority of the members of the Board. That period may be extended by a further month on account of the complexity of the subject-matter. The decision referred to in paragraph 1 shall be reasoned and addressed to the lead supervisory authority and all the supervisory authorities concerned and binding on them.

3.   Where the Board has been unable to adopt a decision within the periods referred to in paragraph 2, it shall adopt its decision within two weeks following the expiration of the second month referred to in paragraph 2 by a simple majority of the members of the Board. Where the members of the Board are split, the decision shall by adopted by the vote of its Chair.

4.   The supervisory authorities concerned shall not adopt a decision on the subject matter submitted to the Board under paragraph 1 during the periods referred to in paragraphs 2 and 3.

5.   The Chair of the Board shall notify, without undue delay, the decision referred to in paragraph 1 to the supervisory authorities concerned. It shall inform the Commission thereof. The decision shall be published on the website of the Board without delay after the supervisory authority has notified the final decision referred to in paragraph 6.

6.   The lead supervisory authority or, as the case may be, the supervisory authority with which the complaint has been lodged shall adopt its final decision on the basis of the decision referred to in paragraph 1 of this Article, without undue delay and at the latest by one month after the Board has notified its decision. The lead supervisory authority or, as the case may be, the supervisory authority with which the complaint has been lodged, shall inform the Board of the date when its final decision is notified respectively to the controller or the processor and to the data subject. The final decision of the supervisory authorities concerned shall be adopted under the terms of Article 60(7), (8) and (9). The final decision shall refer to the decision referred to in paragraph 1 of this Article and shall specify that the decision referred to in that paragraph will be published on the website of the Board in accordance with paragraph 5 of this Article. The final decision shall attach the decision referred to in paragraph 1 of this Article
1st proposal close

No specific provision
2nd proposal close

Art. 58a

1. In the cases referred to in paragraph 3 of Article 57, the European Data Protection Board shall adopt a decision on the subject-matter submitted to it in order to ensure the correct and consistent application of this Regulation in individual cases. The decision shall be reasoned and addressed to the lead supervisory authority and all the concerned supervisory authorities and binding on them.

2. The decision referred to in paragraph 1 shall be adopted within one month from the referral of the subject-matter by a two-third majority of the members of the Board. This period may be extended by a further month on account of the complexity of the subject-matter.

3. In case the Board has been unable to adopt a decision within the periods referred to in paragraph 2, it shall adopt its decision within two weeks following the expiration of the second month referred to in paragraph 2 by a simple majority of the members of the Board. In case the members of the Board are split, the decision shall by adopted by the vote of its Chair.

4. The concerned supervisory authorities shall not adopt a decision on the subject matter submitted to the Board under paragraph 1 during the periods referred to in paragraphs 2 and 3.

5. (…)

6. The Chair of the European Data Protection Board shall notify, without undue delay, the decision referred to in paragraph 1 to the concerned supervisory authorities. It shall inform the Commission thereof. The decision shall be published on the website of the European Data Protection Board without delay after the supervisory authority has notified the final decision referred to in paragraph 7.

7. The lead supervisory authority or, as the case may be, the supervisory authority to which the complaint has been lodged shall adopt their final decision on the basis of the decision referred to in paragraph 1, without undue delay and at the latest by one month after the European Data Protection Board has notified its decision. The lead supervisory authority or, as the case may be, the supervisory authority to which the complaint has been lodged, shall inform the European Data Protection Board of the date when its final decision is notified respectively to the controller or the processor and the data subject. The final decision of the concerned supervisory authorities shall be adopted under the terms of Article 54a, paragraph 4a, 4b and 4bb. The final decision shall refer to the decision referred to in paragraph 1 and shall specify that the decision referred to in paragraph 1 will be published on the website of the European Data Protection Board in accordance with paragraph 6. The final decision shall attach the decision referred to in paragraph 1.
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No specific provision
Germany
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