Art. 38 General investigations | DORA regulation | DORA

This article sits within the Oversight Framework for critical ICT third-party service providers and sets out the Lead Overseer's powers to conduct general investigations into those providers.

It builds directly on Article 35, which establishes the Lead Overseer's broader powers, and works in conjunction with Article 40, which governs the joint examination teams that assist in carrying out these investigations.

The article details a broad toolkit of investigatory powers available to the Lead Overseer, covering access to records, summoning representatives, interviewing third parties, and requesting communications data.

It also establishes procedural safeguards, including the requirement for written authorisation and advance notification to relevant competent authorities before an investigation begins.

Important points:

The Lead Overseer has the power to conduct investigations into critical ICT third-party service providers, including examining records, summoning representatives, interviewing third parties, and requesting telephone and data traffic records.
Critical ICT third-party service providers are required to submit to investigations ordered by a Lead Overseer decision, with periodic penalty payments applicable for non-compliance or incomplete responses.
The Lead Overseer is required to inform the competent authorities of relevant financial entities and the Joint Oversight Network of the envisaged investigation before it begins.

1. In order to carry out its duties under this Regulation, the Lead Overseer, assisted by the joint examination team referred to in Article 40(1), may, where necessary, conduct investigations of critical ICT third-party service providers.
1. The Lead Overseer 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 provider 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.
1. The officials and other persons authorised by the Lead Overseer 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.
2. 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 provider are not provided or are incomplete.
1. The representatives of the critical ICT third-party service providers are required to submit to the investigations on the basis of a decision of the Lead Overseer. 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.
1. In good time before the start of the investigation, the Lead Overseer shall inform competent authorities of the financial entities using the ICT services of that critical ICT third-party service provider of the envisaged investigation and of the identity of the authorised persons.
2. The Lead Overseer shall communicate to the JON all information transmitted pursuant to the first subparagraph.

Article 38 General investigations

Relevant recitals