22.Adequacy of DPC’s Reasons

22. Adequacy of DPC’s Reasons

(a) Summary of the Parties’ Positions

(1) FBI

390. One of the reliefs which FBI seeks is a declaration that the DPC did not provide

adequate or sufficient reasons in respect of the commencement of the own volition inquiry in

respect of FBI’s EU-US data transfers, the PDD, the inquiry process and the progressing of

the inquiry (relief 10 in s. D of the statement of grounds). At para. 81 of the statement of

grounds, FBI pleaded that no reasons, or inadequate reasons, were provided by the DPC for a

number of decisions of or proposed courses of action by the DPC. Many of the issues referred

to in that paragraph overlap with earlier substantive grounds of challenge advanced by the

FBI. They include issues such as why the inquiry was commenced while the investigation

into Mr. Schrems’ reformulated complaint was ongoing, why the inquiry was commenced

into FBI’s transfers only, why the DPC chose not to await guidance from the EDPB, why the procedures published in the 2018 Annual Report were not followed, why FBI was only

afforded three weeks for its submissions and why an extension was refused and why the DPC

had an undisclosed intention to invoke the Article 60 procedure within three weeks of receipt

of FBI’s submissions. 391. FBI relied on the well-known judgments of the Supreme Court Connelly and Mallak

in support of its case that the DPC’s decision to commence the inquiry and to issue the PDD was not supported by adequate reasons. It also relied on Mallak in support of its contention

that the DPC failed adequately to explain the decision making process itself.

(2) The DPC

392. The DPC did not dispute that it was obliged to provide reasons but contended that the

reasons for the DPC’s decision to commence the inquiry were apparent from the PDD and from its letter of 28th August, 2020. It submitted that at no stage did FBI raise any complaint

that it did not know why the DPC was proceeding as it was or seek an explanation for the

DPC’s approach.

(3) Mr. Schrems

393. Mr. Schrems did not make any discreet submissions on this issue.

(b) Discussion and Decision on this Issue

394. This ground of challenge can be addressed briefly. Insofar as FBI made complaints

concerning the adequacy of the reasons given by the DPC for its decision to commence the

inquiry and to adopt the procedure which it did, I have addressed those arguments in the

context of earlier grounds of challenge advanced by FBI. I am not satisfied that there is any

deficiency in terms of the reasoning given by the DPC for its decision to commence the

inquiry, to adopt the procedure which it adopted and to take the various procedural steps and

decisions which it took up until the inquiry was stayed by the order of Meenan J. on 14th

September, 2020.

395. I can deal very briefly with the relevant legal principles concerning reasoning. As

noted earlier, they were summarised recently in Crekav and CHASE (No. 2) in which the

leading cases, including Connelly and Mallak, were discussed in some detail. I summarised

earlier the essential requirements to be considered in determining the adequacy of reasons

given for a decision. To recap, they are: first, the person affected by the decision must be able

to know, at least in general terms, why the decision was made; second, that person should be

provided with enough information to consider whether he or she could appeal or seek to

judicially review the decision; and, third, the reasons given for the decision must allow the

court or other body hearing the appeal or conducting a review of the decision to do so

properly. Those are the principles which I have applied in considering FBI’s case on reasons. 396. I am satisfied that the DPC has complied with its obligation to give reasons for (1) its

decision to commence the inquiry and (2) the decision to adopt the particular procedure

which it adopted and the decisions taken in the course of that procedure until the inquiry was

stayed.

397. I am satisfied that the PDD and the surrounding correspondence and, in particular, the

DPC’s letter of 28th August, 2020 and 3rd September, 2020 provide adequate reasons for the

DPC’s decision to commence the inquiry and to do so by means of the PDD. While FBI may

be unhappy with the substance of the reasons, in considering this ground of challenge, the

court is only concerned with the adequacy of the reasons given and not with the merits

underlying those reasons. I am satisfied that in its letters of 28th August, 2020 and 3rd

September, 2020 and in the PDD itself, the DPC did explain why it had decided to commence

the own volition inquiry in respect of FBI’s EU-US data transfers and why it had adopted the

procedure which it adopted.

398. I am satisfied that the correspondence explains why, for example, the DPC decided

not to await guidance from the EDPB and why it felt that twenty-one days was a sufficient

time for FBI’s submissions. I have already concluded that the DPC was entitled to adopt the

procedure it adopted and the published procedures were illustrative only and envisaged the

DPC departing from them in an appropriate case and I am satisfied that the correspondence

and the PDD adequately explained the particular procedure which it had decided to adopt in

respect of this inquiry.

399. As regards the contention that if the DPC did not disclose its intention to invoke the

Article 60 procedure within three weeks of FBI’s submissions, I have addressed this point

earlier. The DPC ought to have informed FBI that it had indicated to Mr. Schrems’ solicitors that it anticipated being in a position to invoke the Article 60 procedure within three weeks of

the receipt of the receipt of FBI’s submissions. However, I do not see this as an issue of

reasons. Nor do I believe that it invalidates the decision to commence the inquiry or to adopt

the particular procedure adopted.