69 adopt the procedures for the inquiry are all amenable to judicial review and the DPC’s contentions to the contrary must be rejected. 142.
I will now turn to consider each of the grounds of challenge advanced by FBI as well
as the contention made and then withdrawn by the DPC that FBI’s proceedings are an abuse of process. 13. Alleged Failure by DPC to Conduct an Investigation/Inquiry Before Reaching a Decision (a) Summary of the Parties Positions (1) FBI 143.
FBI contends that the DPC has acted in breach of and ultra vires its powers under s.
110 of the 2018 Act, in breach of certain provisions of the GDPR and in breach of a clear requirement in the CJEU’s judgment in Schrems II to carry out an investigation prior to forming a view as to whether or not a data subject is afforded an adequate level of protection in a third country, by issuing the PDD (containing the “preliminary views” of the DPC) without carrying out any inquiry or investigation. It relies on the express terms of s. 110(1) of the 2018 Act which refer to the power of the DPC “in order to ascertain whether an infringement has occurred or is occurring” to “cause such inquiry as it thinks fit to be conducted for that purpose”. FBI asserts that the DPC must actually inquire into relevant factual and legal matters before reaching a decision. It concludes that that necessarily requires the DPC to carry out a fact-finding exercise and to obtain submissions from FBI before reaching a decision. It relies on various definitions of the word “inquiry” in The Oxford English Dictionary (2nd Ed.) (Volume VII), including the definition of “inquiry” as meaning: “the action, or an act or course, of inquiring” and “the action of seeking, spsp. (now always) for truth, knowledge, or information concerning something; research, investigation, examination”.
