Article 38 General investigations

TL;DR

This article outlines the powers of the Lead Overseer of the Digital Operations Resilience Act from the EU. The Lead Overseer has the power to carry out investigations of critical ICT third-party service providers. This includes being able to examine records, copies of records, extracts from records, summon representatives for oral/written explanations, interview people, and request records of telephone and data traffic. Informed consent must be given to those involved in the investigation. Authorities must also be informed of the investigation before it takes place. Legal remedies are also available under certain regulations.

In order to carry out its duties under this Regulation, the Lead Overseermeans the European Supervisory Authority appointed in accordance with Article 31(1), point (b) of this Regulation;, assisted by the joint examination team referred to in Article 40(1), may, where necessary, conduct investigations of critical ICT third-party service providersmeans an ICT third-party service provider designated as critical in accordance with Article 31;.
The Lead Overseermeans the European Supervisory Authority appointed in accordance with Article 31(1), point (b) of this Regulation; shall have the power to:
1. examine records, data, procedures and any other material relevant to the execution of its tasks, irrespective of the medium on which they are stored;
2. take or obtain certified copies of, or extracts from, such records, data, documented procedures and any other material;
3. summon representatives of the critical ICT third-party service providermeans an ICT third-party service provider designated as critical in accordance with Article 31; for oral or written explanations on facts or documents relating to the subject matter and purpose of the investigation and to record the answers;
4. interview any other natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation;
5. request records of telephone and data traffic.
The officials and other persons authorised by the Lead Overseermeans the European Supervisory Authority appointed in accordance with Article 31(1), point (b) of this Regulation; for the purposes of the investigation referred to in paragraph 1 shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the investigation.

That authorisation shall also indicate the periodic penalty payments provided for in Article 35(6) where the production of the required records, data, documented procedures or any other material, or the answers to questions asked to representatives of the ICT third-party service providermeans an undertaking providing ICT services; are not provided or are incomplete.
The representatives of the critical ICT third-party service providersmeans an ICT third-party service provider designated as critical in accordance with Article 31; are required to submit to the investigations on the basis of a decision of the Lead Overseermeans the European Supervisory Authority appointed in accordance with Article 31(1), point (b) of this Regulation;. The decision shall specify the subject matter and purpose of the investigation, the periodic penalty payments provided for in Article 35(6), the legal remedies available under Regulations (EU) No 1093/2010, (EU) No 1094/2010 and (EU) No 1095/2010, and the right to have the decision reviewed by the Court of Justice.
In good time before the start of the investigation, the Lead Overseermeans the European Supervisory Authority appointed in accordance with Article 31(1), point (b) of this Regulation; shall inform competent authoritiesas defined in Article 46 of the financial entitiesas defined in Article 2, points (a) to (t) using the ICT servicesmeans digital and data services provided through ICT systems to one or more internal or external users on an ongoing basis, including hardware as a service and hardware services which includes the provision of technical support via software or firmware updates by the hardware provider, excluding traditional analogue telephone services; of that critical ICT third-party service providermeans an ICT third-party service provider designated as critical in accordance with Article 31; of the envisaged investigation and of the identity of the authorised persons.

The Lead Overseermeans the European Supervisory Authority appointed in accordance with Article 31(1), point (b) of this Regulation; shall communicate to the JONJoint Oversight Network all information transmitted pursuant to the first subparagraph.

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