Article 38 General investigations

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In order to carry out its duties under this Regulation, the Lead Overseer means 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 providers means an ICT third-party service provider designated as critical in accordance with Article 31;.

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 means a natural or legal person established in the Union explicitly designated to act on behalf of a DNS service provider, a TLD name registry, an entity providing domain name registration services, a cloud computing service provider, a data centre service provider, a content delivery network provider, a managed service provider, a managed security service provider, or a provider of an online marketplace, of an online search engine or of a social networking services platform that is not established in the Union, which may be addressed by a competent authority or a CSIRT in the place of the entity itself with regard to the obligations of that entity under this Directive; it has legal personality or is entitled by law to act on behalf of another entity with legal personality; it has the power to address to natural or legal persons administrative or regulatory decisions affecting their rights in the cross-border movement of persons, goods, services or capital; it is financed, for the most part, by the State, regional authorities or by other bodies governed by public law, is subject to management supervision by those authorities or bodies, or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional authorities or by other bodies governed by public law; it is established for the purpose of meeting needs in the general interest and does not have an industrial or commercial character; of the critical ICT third-party service provider means 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 Overseer means 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 means a natural or legal person established in the Union explicitly designated to act on behalf of a DNS service provider, a TLD name registry, an entity providing domain name registration services, a cloud computing service provider, a data centre service provider, a content delivery network provider, a managed service provider, a managed security service provider, or a provider of an online marketplace, of an online search engine or of a social networking services platform that is not established in the Union, which may be addressed by a competent authority or a CSIRT in the place of the entity itself with regard to the obligations of that entity under this Directive; it has legal personality or is entitled by law to act on behalf of another entity with legal personality; it has the power to address to natural or legal persons administrative or regulatory decisions affecting their rights in the cross-border movement of persons, goods, services or capital; it is financed, for the most part, by the State, regional authorities or by other bodies governed by public law, is subject to management supervision by those authorities or bodies, or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional authorities or by other bodies governed by public law; it is established for the purpose of meeting needs in the general interest and does not have an industrial or commercial character; of the ICT third-party service provider means an undertaking providing ICT services; are not provided or are incomplete.

The representatives means a natural or legal person established in the Union explicitly designated to act on behalf of a DNS service provider, a TLD name registry, an entity providing domain name registration services, a cloud computing service provider, a data centre service provider, a content delivery network provider, a managed service provider, a managed security service provider, or a provider of an online marketplace, of an online search engine or of a social networking services platform that is not established in the Union, which may be addressed by a competent authority or a CSIRT in the place of the entity itself with regard to the obligations of that entity under this Directive; it has legal personality or is entitled by law to act on behalf of another entity with legal personality; it has the power to address to natural or legal persons administrative or regulatory decisions affecting their rights in the cross-border movement of persons, goods, services or capital; it is financed, for the most part, by the State, regional authorities or by other bodies governed by public law, is subject to management supervision by those authorities or bodies, or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional authorities or by other bodies governed by public law; it is established for the purpose of meeting needs in the general interest and does not have an industrial or commercial character; of the critical ICT third-party service providers means 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 Overseer means 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 Overseer means 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 services means 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 provider means 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 Overseer means 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.