114 15. Alleged Breach of Fair Procedures: 21-Day Period for Submissions (a) Summary of Parties’ Positions (1) FBI 231.
FBI contends that the DPC failed to comply with its obligation to provide fair
procedures to FBI (including its rights to be heard, to make representations and for those representations to be considered and taken into account by the DPC) by affording an inadequate time to FBI to make submissions in response to the PDD. 232.
FBI submitted that the DPC was obliged to provide fair procedures in the conduct of
the inquiry under s. 110 of the 2018 Act and relied in that regard on the obvious cases such as East Donegal Cooperative Ltd v. Attorney General [1970] IR 317 (“East Donegal”) and Dellway Investments v. NAMA [2011] 4 IR 1 (“Dellway”). It maintained that the obligation to afford fair procedures to FBI stems not only from Irish law, but also generally under EU law and, particularly, under the GDPR. It relies on the judgment of the CJEU in Case C-46/16 Valsts ieņēmumu dienests v. LS Customs Services, 9th November, 2017, ECLI:EU:C:2017:839 (“Valsts”) in which the CJEU referred to the “right to good administration” being a general principle of EU law which must be complied with by Member States when implementing EU law. It also relied on Case C-349/07 Sopropé v. Fazenda Puplica [2008] ECR I-10369 (“Sopropé”) and case C-277/11 MM v. Minister for Justice, judgment of 22nd November, 2012, ECLI:EU:C:2012:744 (“MM”) in which the CJEU referred to the rights of defence and the right to be heard as fundamental principles of EU law. 233.
FBI also relied on the provisions of Recital (129) and Article 58(4) of the GDPR
which refer specifically to the right to be heard and to due process and makes specific reference to the Charter. FBI relied on Article 47 of the Charter and the right to an effective remedy in the case of a breach of its rights under EU law.
