two or more national supervisory authorities 15. It is not aiming to address directly any third party. However, as the decision adopted by the EDPB shall be binding on the LSA in this case and can be decisive for the outcome of the procedure at national level, it may affect the interests of persons who were part of the procedure that gave rise to the draft decision, such as the controller who is addressed by the final decision of the LSA 16. 18.
In order to address the possibility that WhatsApp IE might be adversely affected by the EDPB decision, the EDPB assessed if it was offered the opportunity to exercise its right to be heard in relation to the procedure led by the LSA and in particular whether WhatsApp IE was given the opportunity to make its views effectively known in relation to the subject matter of the dispute to be resolved by the EDPB, as well as all documents received in this procedure to be taken into account by the EDPB to take its decision 17.
19.
Considering that WhatsApp IE has been heard by the IE SA in relation to the subject matter of the dispute to be resolved by the EDPB, as well as all documents received in this procedure and used by the EDPB to take its decision, including the objections raised in relation to the draft decision 18, and the LSA has shared with the EDPB the written observations of WhatsApp IE, in line with Article 11(2) EDPB Rules of Procedure 19, in relation to the issues raised in this specific Draft Decision, the EDPB is satisfied that the Article 41 of the EU Charter of fundamental rights has been respected.
4 STRUCTURE OF THE BINDING DECISION 20.
For each of the objections raised, the EDPB assesses first whether they are to be considered as a “relevant and reasoned objection” within the meaning of Article 4(24) GDPR as clarified in the Guidelines on the concept of a relevant and reasoned objection 20.
21.
Where the EDPB finds that an objection does not meet the requirements of Article 4(24) GDPR, the EDPB does not take any position on the merit of any substantial issues raised by that objection in this specific case. The EDPB will analyse the merits of the substantial issues raised by all objections it deems to be relevant and reasoned 21.
Guidelines on Art. 65(1)(a), paragraph 97. Guidelines on Art. 65(1)(a), paragraphs 98;99. 17 See also Guidelines on Art. 65(1)(a), paragraphs 105;106. In this regard, it was confirmed that WhatsApp IE was afforded its right to be heard against the Preliminary Draft decision, the Supplemental Draft decision, the objections and comments raised by the CSAs, IE SA’s Composite Response, the comments exchanged by the CSAs in response to it, and a provisionally amended extract of Part I of the IE SA’s Draft Decision. The IE SA confirmed it took account of WhatsApp IE’s submissions on the Preliminary Draft decision and on the Supplemental Draft Decision in the process of consolidating them into the Composite Draft. A copy of the Composite Draft was provided to WhatsApp IE on 24 December 2020. Within its submissions in response to the material that would be put to the EDPB for the purpose of the present Article 65 GDPR procedure, WhatsApp IE included also its additional submissions in relation to the Composite Draft. In a letter dated 9 June 2021, WhatsApp IE explicitly confirmed that WhatsApp IE was afforded the opportunity to submit its views on the Composite Draft. 18 Guidelines on Art. 65(1)(a), paragraph 105. 19 EDPB Rules of Procedure, adopted on 25 May 2018, as last modified and adopted on 8 October 2020. 20 EDPB Guidelines 9/2020 on the concept of relevant and reasoned objection, version 2 adopted on 9 March 2021, (hereinafter, “Guidelines on RRO”). 21 See EDPB Guidelines 03/2021 on the application of Article 65(1)(a) GDPR, adopted on 13 April 2021 (version for public consultation) (hereinafter, “Guidelines on Art. 65(1)(a)”), paragraph 63 (“The EDPB will assess, in relation to each objection raised, whether the objection meets the requirements of Article 4(24) GDPR and, if so, address the merits of the objection in the binding decision.”) 15 16
Adopted
9
