Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679
SECTION 1 GENERAL
1. Within the cooperation mechanism set out by the GDPR, the supervisory authorities (“SAs”) have a duty to “exchange all relevant information with each other” and cooperate “in an endeavour to reach consensus”. This duty of cooperation applies to every stage of the procedure, starting with the inception of the case and extending to the whole decision-making process.The achievement of an agreement on the outcome of the case is therefore the ultimate goal of the whole procedure established by Article 60 GDPR. In the situations in which no consensus is reached among the SAs, Article 65 GDPR entrusts the EDPB with the power to adopt binding decisions. However,the exchange of information and the consultation among the Lead Supervisory Authority (“LSA”) and the Concerned Supervisory Authorities (“CSAs”) often enables an agreement to be reached at the early stages of the case.
2. According to Article 60 (3) and (4) GDPR, the LSA is required to submit a draft decision to the CSAs, which then may raise a relevant and reasoned objection within a specific timeframe (four weeks). Upon receipt of a relevant and reasoned objection, the LSA has two options open to it. If it does not follow the relevant and reasoned objection or is of the opinion that the objection is not reasoned or relevant, it shall submit the matter to the Board within the consistency mechanism. If the LSA, on the contrary, follows the objection and issues the revised draft decision, the CSAs may express a relevant and reasoned objectionon the revised draft decision within a period of two weeks.
3. When the LSA doesnot follow an objection or rejects it as not relevant or reasoned and therefore submits the matter to the Board according to Article 65 (1)(a) GDPR, it then becomes incumbent upon the Board to adopt a binding decision on whether the objection is “relevant and reasoned” and if so, on all the matters which are the subject of the objection.
4. Therefore, one of the key elements signifying the absence of consensus between the LSA and the CSAs, is the concept of “relevant and reasoned objection”. This document seeks to provide guidance with respect to this concept and aims at establishing a common understanding of the notion of the terms “relevant and reasoned”, including what should be considered when assessing whether an objection “clearly demonstrates the significance of the risks posed by the draft decision” (Article 4(24) GDPR).