132 extension of time will be considered by the DPC (obviously, taking into account the obligations on the DPC under the GDPR, as discussed above). 16. Alleged Breach of Fair Procedures: Premature Judgment (a) Summary of Parties Positions’ (1) FBI 275.
FBI contends that although the PDD is stated to be a “preliminary” decision and
although many of the views expressed in it are stated to be “preliminary”, a reasonable observer would reasonably conclude that the DPC had reached a premature judgment on all of the important issues and that it did not have an open mind as to the ultimate conclusion to be reached on those issues. FBI submitted that that was the conclusion a reasonable observer would reach having read the entirety of the PDD. It submitted that the process started with a “decision” which was made by the DPC before FBI was even aware that the process had commenced. The procedure adopted by the DPC put the onus on FBI to attempt to persuade the DPC to change the views which it had already expressed on all of the important issues. 276.
FBI relied not only on the terms of the PDD itself, but also on various other matters
including (a) the previous views expressed by the DPC in its draft decision in May, 2016 and in the DPC Proceedings; (b) the fact that the DPC only afforded FBI a period of 21-days to put in its submissions in response to the PDD; (c) the fact that the DPC was seeking “targeted” submissions only from FBI; and (d) the fact that the DPC had informed ARQ, Mr. Schrems’ solicitors, that it anticipated that it would be submitting a “draft decision” to the Article 60 procedure within 21-days of receipt of FBI’s submissions. 277.
While relying on the entirety of the PDD, FBI did refer to particular provisions of the
document in support of its case under this ground. By way of example, it referred to the manner in which the PDD referred to certain of the findings of the CJEU in Schrems II and stated that those findings were binding on the DPC (s. 7 of the PDD). It also relied on the
