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annul the decision of the European Data Protection Board (‘the EDPB’) of 7 February 2023 refusing access by the applicant to the file concerning the Binding Decision 3/2022 of the EDPB on the dispute submitted by the Irish Supervisory Authority on Meta Platforms Ireland Limited and its Facebook service (Article 65 General Data Protection Regulation (‘the GDPR’) (1)), pursuant to Article 41(2)(b) of the Charter of Fundamental Rights of the EU; and

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order the EDPB to bear the costs of the proceedings.

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The EDPB violated Article 41(2)(b) of the Charter when it rejected the applicant’s request to access the file concerning the EDPB’s Binding Decision 3/2022 on the grounds that the complainants (the applicant and her representative under Article 80(1) GDPR non-profit NOYB-European Center for Digital Rights) are not entitled to a right of access to the file because they were not likely to be adversely affected by the Binding Decision 3/2022;

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Other than under Article 41(2)(a) of the Charter, ‘adverse affect’ is not an element of Article 41(2)(b) of the Charter and therefore does not need to be fulfilled;

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The applicant seeks access to ‘her file’ under Article 41(2)(b) of the Charter. The case directly deals with her personal complaint under Article 77 GDPR against Meta on her personal data. Binding Decision 3/2022 refers to the ‘complaint’ and the ‘complainant’ more than 160 times. The EDPB itself holds in the Binding Decision 3/2022 that the Draft Decision at issue relates to a ‘complaint-based inquiry’, whereas the complaint was lodged by the applicant. The Binding Decision 3/2022 refers to both the applicant and the non-profit NOYB — European Center for Digital Rights, who represented her under Article 80(1) GDPR, as the ‘complainant’;

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The Article 41(2)(b) Charter right to access the file is a stand-alone right. Article 41 of the Charter clearly differentiates the right to access the file from the right to be heard. The scope and the objective of these rights are different. The latter is mostly a defensive right. The right to access the file, on the other hand, is also an aspect of equality of arms and the right to an effective remedy. The Court of Justice itself addresses the entitlement to each of the two rights separately and does not condition the right to access the file on the right to be heard;

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Even if ‘adverse affect’ would be an element of Article 41(2)(b) of the Charter (which it is not) this condition would be met, given that: