2.2 Bo rderline cases

34. The notio n o f main establishm ent is linked by virtue of the GDP R to a single co ntro ller and cannot be extended to a jo int co ntro llership situatio n. This is witho ut prejudice to the po ssibility fo r each jo int co ntro ller to have its own m ain establishm ent. In o ther wo rds, the m ain establishm ent o f a co ntro ller canno t be co nsidered as the m ain establishm ent o f the jo int co ntro llers fo r the pro cessing carried o ut under their jo int co ntro l. Therefo re, jo int co ntro llers canno t designate (amo ng the establishm ents where decisio ns o n the purpo ses and m eans o f the pro cessing are taken) a co mmo n m ain establishment fo r bo th jo int co ntro llers.

2.2 Bord erlin e cas es

35. There will be bo rderline and com plex situatio ns where it is difficult to identify the m ain establishment o r to determ ine where decisio ns abo ut data pro cessing are taken. This m ight be the case where there is cro ss-bo rder pro cessing activity and the co ntro ller is established in several Member States, but there is no central adm inistratio n in the EEA and no ne o f the EEA establishments are taking decisio ns abo ut the processing (i.e. decisions are taken exclusively o utside o f the EEA).

36. In the case abo ve, the company carrying o ut cro ss-bo rder pro cessing m ay be keen to be regulated by a lead superviso ry autho rity to benefit fro m the o ne-sto p-sho p principle. However, the GDP R do es not pro vide a so lutio n fo r situatio ns like this. In these circum stances, the com pany sho uld designate the establishment that has the autho rity to im plem ent decisio ns abo ut the pro cessing activity and to take liability fo r the processing, including having sufficient assets, as its m ain establishm ent. If the co m pany do es no t designate a m ain establishment in this way, it will not be po ssible to designate a lead superviso ry autho rity. Superviso ry autho rities will always be able to investigate further where this is appro priate.

37. The GDP R does not perm it fo rum sho pping . If a com pany claim s to have its m ain establishm ent in o ne Mem ber State, but no effective and real exercise o f m anagement activity o r decisio n-m aking over the pro cessing o f perso nal data takes place there, the relevant superviso ry autho rities (o r ultim ately the EDP B12) will decide which superviso ry autho rity is the lead , using o bjective criteria and loo king at the evidence. The pro cess o f determ ining where the m ain establishm ent is m ay require active inquiry and co-o peratio n by the superviso ry autho rities. Conclusio ns canno t be based so lely o n statem ents by the organisatio n under review. The burden o f proo f ultim ately falls o n co ntro llers and pro cesso rs to demo nstrate to the relevant superviso ry autho rities where the relevant pro cessing decisio ns are taken and where there is the po wer to im plem ent such decisio ns. Effective reco rds o f data pro cessing activity wo uld help bo th o rganisatio ns and superviso ry autho rities to determ ine the lead superviso ry autho rity. The lead superviso ry autho rity, o r co ncerned superviso ry autho rities, can rebut the co ntro ller s analysis based o n an o bjective exam inatio n o f the relevant facts, requesting further info rm atio n where required.

38. In so me cases, the relevant superviso ry autho rities will ask the co ntro ller to pro vide clear evidence, in line with any EDP B guidelines, o f where its m ain establishm ent is, o r where decisions abo ut a particular data processing activity are taken. This evidence will be given due weight and the superviso ry autho rities invo lved will co-o perate to decide which one o f them will take the lead in investigatio ns. Such cases will o nly be referred to the EDP B fo r a decisio n under Article 65(1)(b) GDP R where superviso ry authorities have co nflicting views in term s o f identifying the lead superviso ry authority. Ho wever, in mo st cases, the EDP B expects that the relevant superviso ry authorities will be able to agree a m utually satisfactory co urse o f actio n.

12 See paragraph 35 below.