By Cristina BOJICA, Partner, GRUIA DUFAUT Law Office
The entry into force, on 25 May 2018, of Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, has determined not only compliance efforts made by data controllers, but also the regulation of the operation of the national supervisory body, namely the National Supervisory Authority for the Processing of Personal Data (ANSPDCP), which will investigate potential violations of the specific legislation.
The investigation procedure that the ANSPDCP will have to comply with has recently been published in Official Journal no. 892 of 23 October 2018.
The Investigation Procedure
ANSPDCP is authorized to start surveillance and legality monitoring investigations either ex officio or as a result of a prior complaint made by any concerned persons against a data controller.
Ex officio investigations may be carried out either following a notification regarding a personal data security breach or for the purpose of checking certain data and information relating to personal data processing, obtained by ANSPDCP from sources other than those referred to in the complaint. Ex officio investigations may also be conducted on the basis of notifications or information provided by another supervisory or public authority. Also, ex officio investigations may also take the form of data protection audits.
Investigations following a complaint are initiated by the authority as a result of the receipt of a complaint about a potential violation of the law by a data controller.
In both cases, investigations can be conducted: on site, at the headquarters of the institution, in writing or at the headquarters of the authorities/public bodies.
Detailed procedures are stipulated for each type of investigation. These procedures also stipulate the rights and obligations of the entities under investigation and how penalties for the violation of data protection provisions are applied.
Thus, during on-site investigations (held at the headquarters, domicile, working point of the entity under investigation or in other premises where the entity operates), the inspectors may propose:
- The elaboration of an expert report;
- That the persons whose statements are considered relevant and necessary for the purposes of the investigation be heard;
- The application of one of the penalties provided by the law. For this purpose, the investigation report is both a debt instrument and a payment notice.
If the inspectors are prevented from carrying out the investigation, ANSPDCP may request the issuance of a judicial authorization. A copy of the judicial authorization will be notified to the audited entity before the start of the investigation and, although it may be challenged before the High Court of Cassation and Justice, the dispute does not suspend the enforcement of the judicial authorization. Police intervention may also be requested.
The investigations carried out at the headquarters of the Supervisory Authority are conducted on the basis of a notice sent to the representatives of the data controller under investigation. The notice must mention the obligation of the investigated entity to send documents, relevant registers and computer equipment to ANSPDCP headquarters, depending on the purpose of the investigation.
As an exception, when the evidence is deemed sufficient to finalize the investigation, the law authorizes the conclusion of the investigation/penalty report at the headquarters of the authority without convening the representatives of the audited entity.
Written investigations are conducted on the basis of a letter sent by the authority to the entity under investigation, whereby the authority requests the information, data and documents needed to resolve the case under investigation.
The entity under investigation is required to answer in writing and attach evidence to the said answer in compliance with the deadline set by the National Supervisory Authority. Depending on the answer, the Authority may decide to continue the investigation in writing or on site, or even to finalize the investigation, by concluding an inspection/penalty report, at the headquarters of ANSPDCP.
The main penalties applied by the National Supervisory Authority for the Processing of Personal Data are the warning and the fine. Moreover, the National Supervisory Authority may issue a warning to the investigated entity, if the controller might violate the law through the personal data processing operations it intends to perform.
Penalties are applied according to the investigation/penalty report concluded by the inspectors. If the amount of the fine exceeds the Lei equivalent of 300,000 Euros, the penalty will be applied according to the decision of the President of ANSPDCP.
In addition to the penalties stipulated by law, the National Supervisory Authority for the Processing of Personal Data may order other corrective measures and make recommendations.