Court of Appeal of Brussels - 2021/AR/282: Difference between revisions

Revision as of 10:55, 26 July 2021

Hof van Beroep Brussel - 2021/AR/282

Court:	Hof van Beroep Brussel (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Art. 13 Grondwet Art. 108, §1 WOG Art. 1022, §3 Ger.W.
Decided:	30.06.2021
Published:	30.06.2021
Parties:	Y Belgian DPA
National Case Number/Name:	2021/AR/282
European Case Law Identifier:
Appeal from:	APD/GBA 05/2021
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	Hof van Beroep Brussel (in Dutch)
Initial Contributor:	Matthias Smet

The Court confirmed that, when the supervisory authority revokes its decision, the decision retroactively disappears. Therefore, it is no longer possible to pursue an action against the revoked decision as the defendant can no longer show an interest to challenge the decision.

English Summary

Facts

The complaint concerned the alleged assignment of the plaintiff's mobile phone number by his telecom provider to a third party, as a result of which the complainant could no longer use his number. The plaintiff's SIM card was deactivated and the third party was therefore able to view the plaintiff's personal mobile phone traffic and calls, as well as linked accounts (such as Paypal, WhatsApp and Facebook) from 16 to 19 September 2019.

The Belgian DPA imposed an administrative fine of 25 000 EUR to a telecom provider in its decision of 22 January 2021

The Belgian DPA revoked the above decision on 19 May 2021, reopened the proceedings before the litigation chamber and invited the parties to submit new arguments.

Dispute

Company Y accused the Belgian DPA of process abuse and states that referral to the litigation chamber Chamber is a violation of article 13 of the Constitution and the provision of an effective remedy and the fair administration of justice.

On top of that, Company Y asked the court to allocate increased litigation costs because of: - the increased attorney's fees; - delay of justice and legal uncertainty; - the situation's apparent unreasonable character: The Belgian DPA waited until the last moment to revoke the decision, where the case for pleadings was fixed on 2 June 2021.

Holding

The Court ruled that: - the decision of the Belgian DPA retroactively disappears from the legal order; - the complainant's claim is without object and is therefore rejected; - the Belgian DPA is ordered to pay litigation costs, court fees and the contribution to the "budgetary fund"

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English Machine Translation of the Decision

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

Court of Appeal Brussels - 2021/AR/282 - p. 2

ON :

Y, [...], requesting party,

represented by mr. BRUYNDONCKX Bastiaan loco mr. KUYKEN Liese, lawyers, both
with office at 1000 BRUSSELS, Havenlaan 86c

against the judgment of the Other of January 22, 2021

AGAINST:

The DATA PROTECTION AUTHORITY, independent public institution, (supervisory
authority), with registered office at 1000 BRUSSELS, Drukpersstraat 35,

Defendant,

represented by mr. CLOOTS Elke, mr. ROETS Joos and mr. BUGGENHOUDT Claire, lawyers,

all with offices in 2018 ANTWERP, Oostenstraat 38

***

1. Jurisdiction of the Court.

The court derives its jurisdiction from an appeal filed by Y on 19 February
2021, was filed with the registry of the Court of Appeal in Brussels and where a story is
brought against decision No 05/2021 of 22 January 2021 of the Disputes Chamber of the

DATA PROTECTION AUTHORITY (hereinafter "DPA").

2. The contested decision.

The initially contested decision stated:

- Pursuant to Article 100, §1, 9 WOG, to order processing in accordance with
with Articles 5.1.f, 5.2, 24 and 32 GDPR, in which in particular the policy
regarding the identification and verification of prepaid customers in accordance with the
GDPR is brought. The Disputes Chamber gives the defendant a period of three months for this
months and the Disputes Chamber expects the defendant to report it within

the same period with regard to bringing the processing into line with
aforementioned provisions.

r PAGE 01-00002223628-0002-0011-1-01-01-�

L _JCourt of appeal Brussels-2021/AR/282- p. 3

°
- pursuant to Article 83 GDPR and Articles 100, 13 and 101 WOG, an administrative
to impose a fine of EUR 25,000 on the defendants for the infringements of the
Articles 5.1.f, 5.2, 24, 32, 33.1 and 5, 34.1 GDPR."

By decision of 19 May 2021, the Disputes Chamber withdrew the contested decision
(decision 61/2021).

3. The claims before the Market Court.

In the preliminary application, Y claimed:
• declare the appeal of the appellant admissible and well-founded;

• the Contested Decision 05/2021 of the Disputes Chamber of 22 January 2021, te
annul and adjudicate again, substituting its decision for this one
from the Disputes Chamber:

• In main order:

■ rule that Mr X's complaint dated 20 September 2019 to the
data protection authority with regard to the appellant was unfounded;

■ to order the Data Protection Authority the already paid by the appellant
administrative fine of EUR 25,000 to be repaid to the appellant;

• in subordinate order:

■ if Your Court is ofrdo elthat Mr. X's complaint on 2 September 2019 at
the Data Protection Authority with regard to the appellant an inukrephet
data protection law on the part of the appellant, a reprimand
to formulate;

• anyway:

■ Satisfy the Data Protection Authority to pay all
court costs to the appellant, including legal compensation at the
amount of EUR 1,440.00.

The withdrawal decision considers:

Whereas the Marktenhof in its rulings 2020/AR/813 of 18 November 2020 and
2021/AR/1159 of 24 February 2021 pointed out the importance of keeping data subjects
to inform them of the exact allegations prior to the handling of the file
and/or infringements of which he could be guilty;

Considering that, during the appeal to the Market Court against the decision on the merits, Y
5/2021 of 22 January 2021 has stated that in the

r PAGE 01-00002223628-0003-0011-01-01-�

L _JCourt of appeal Brussels-2021/AR/282-p. 4

prior procedure was insufficiently informed about the exact allegations and/or

breaches;

Has decided to:
• the decision on the merits 5/2021 of 22 January 2021 against Y by means of
to revoke this decision.

• reopen the proceedings before the Disputes Chamber and the parties with due observance
to request from the provisions of Article 98 of the GBA Act to submit new defenses
serve."

After the withdrawal decision, Y, by statement lodged on June 14, 2021, claims:

"• Declare the appeal of the concluding admissibles well founded;

•
to take note of the withdrawal of the Contested Decision 05/2021 of the
Dispute Chamber of the GBA of January 22, 2021,

• again adjudicating, using its fullness of jurisdiction, the
assess the merits of the case and substitute its own decision for beslissing

this one from the Dispute Chamber:

• In main order:

to rule that Mr X's complaint of 20 September 2019 at

the GBA was unfounded with regard to the concluding party;

to order the GBA to pay the administrative fine already paid by the client
of EUR 25,000 to be repaid to the customer;

• in subordinate order:

if your Court finds that Mr X's complaint of 20
September 2019 at the GBA with regard to the concluding party an infringement of the law
data protection law under the concluding party would constitute a
to formulate reprimand;

• anyway:

order the GBA to pay all legal costs to the conc!uante,
including the increased legal fees amounting to
EUR 12,000."

The DPA concludes as follows in a statement filed on June 21, 2021:

IPAGE 01-00002223628-0004-0011--01-01-�

L _JCourt of appeal Brussels - 2021/AR/282 - p. 5

,, In principal order, to declare that Y's claim is without object and therefore

must be rejected;

Secondly, declare that there is no right on the part of Y to
to have a complaint submitted to the GBA assessed directly
by Your Court, so that Y's claim is beyond the jurisdiction of Your Court

falls, is at least unfounded;

In any case, the legal compensation to be estimated at the most at the basic amount
from 1,560 euros."

4. With regard to the facts.

In view of the withdrawal of the contested decision, the Marktenhof does not discuss the facts.

s. The legal framework.

Article 108 § 1 of the Law of 3 December 2017 establishing the
Data Protection Authority (WOG) states:

The litigation chamber shall notify the parties of its decision and of the possibility of
appeal within a period of thirty days from the notification, at the
Market Court.

Subject to the exceptions provided for by law or unless the dispute chamber

special reasoned decision orders otherwise, the decision is enforceable by
stock, notwithstanding appeal.

The decision to delete data in accordance with Article 100, § 1, 10, is not
available from stock.,,

6. The Resources:

Y in its final conclusion does not develop any means. She states:

"In principal order: the withdrawal decision does not remove the file from the jurisdiction of your
Market Court;
Your Marktenhof can indeed rule on the merits of the case;
The referral back to the Disputes Chamber would constitute a violation of Art. 13 of the
Constitution;

The referral back to the Disputes Chamber would be a violation of the principle of a
effective remedy and fair administration of justice.,,

rPAGE 01-00002223628-0005-0011-1-01-01-�

L _JCourt of appeal Brussels-2021/AR/282- p. 6

The GBA applies:

"First plea of defense: in principal order: the claim has become devoid of purpose as a result of
of the withdrawal decision (art. 17-18 GW.}

Second Defense: Minor: Y does not have the right to
the merits of the complaint to be assessed by your Court before the
Dispute Chamber has reached a decision on the matter".

7. Discussion.

7.1.

An administrative authority may "revoke" its decisions. The revocation will result in the
decision retroacti(ex tune) disappears from the legal order.

Legal acts that do not confer rights may be authorized by the government (the Disputes Chamber of the
GBA acts here as an organ of an administrative authority - which, although it depends on the
legislature -) be repealed (see VAN DAMME & DE KEGEL, Repeal of the
administrative legal act, administrative library, no. 62 page 39).

7.2.

To the extent that the withdrawal decision states:

"Decided to:

[.....]

• reopen the proceedings before the Disputes Chamber and the parties with due observance of
to request the provisions of Article 98 of the GBA Act to submit new defenses
serve"

is it a new decision against which a (new) story was open (like this one by the way
very explicitly stated by the withdrawal decision) but against which Y has no (new) recourse
has set.

The time limit for filing a claim has now expired.

7.3.

Y is hurt by the fact that the procedure abo vo is being resumed by the

Litigation Chamber, but she has no recourse against the decision to reopen the proceedings

rPAGE 01-00002223628-0006-0011-1-01-�

L _JCourt of appeal Brussels -2021/AR/282-p. 7

set. She cannot, provided that the pending lawsuit against the decision that has now been revoked,
appeal against this new decision.

7.4.

When a decision has been revoked, there is no more decision and there can be appeals against this decision

decision, no further grievances can be expressed in the context of the objective litigation.

Where Y states that a government could thus always revoke all decisions and thus grant a
effective recourse in court, this is partly (theoretically) correct what the
objective contention, but nothing would prevent the party that
abuse of government rights, would turn to the ordinary civil court

can aim.

The revocation of the government decision has the consequence that the decision is deemed never
to have existed, it has been withdrawn ex tune and is deemed to have completely disappeared from the legal order
to be.

7.5.
Y asserts that - in the present action - it not only claimed that the contested
decision would be annulled, but at the same time it demanded that the Marktenhof stand in its place
would argue from the Disputes Chamber of the GBA and that the Marktenhof accordingly, pursuant to

full jurisdiction, would make its own decision.

This implies that, in any case, there must first be a decision of the Disputes Chamber, which
decides on the merits of the case and which has been assessed for its legality by the
Marktenhof and as a result of illegality sensu foto was destroyed by the Marktenhof.

Now that the decision of 19 Ei 2021 states that it has been decided "to continue the procedure before the Disputes Chamber."
reopen and the parties with due observance of the provisions of Article 98 of the GBA Act
requests to submit new defenses" and no recourse has been filed against this, has
Y agreed that the Marktenhof cannot make its own decision in this matter
and that, first of all, the Disputes Chamber must be given the opportunity to review the procedure
to resume.

The claim that the Market Court should make its own decision by virtue of its full jurisdiction
and would substitute this for that of the Disputes Chamber of the GBA is accordingly
unfounded.

7.6.

If a 'new' decision is made and if Y would be affected by a new decision
offended, it shall belong to her to institute any redress against this one, if need be
any new decision.

1 PAGE 01-00002223628-0007-0011-01-01-�

L _Jr •

Court of Appeal Brussels - 2021/AR/282- p. 8

This is not the issue.

8. Decision.

8.1.

The story is without object, Y has no interest (anymore) to continue a story against

the decision of January 22, 2021.

Now that Y has not filed a redress against the decision to open the proceedings for the
Dispute chamber of the GBA ab ovo, there is no reason to use the

full jurisdiction.

8.2.

Y claims an increased legal fee.

She states:

In subordinate order: an increased legal compensation is necessary

1 First of all, it should be noted that through the
Withdrawal decision the GBA acknowledges that the concluding party must be held in its favour
concerns its request to hear the Contested Decision quashed. Consequently, the GBA

be ordered to pay legal fees. Pursuant to the withdrawal
after all, the GBA must be regarded as the unsuccessful party.

2 As explained above, the Disputes Chamber is manifestly taking advantage of its

power to revoke decisions taken just like that, hiding behind the fact that they
is an administrative dispute resolution body that can in no way be compared to a
court, and this purely in order to avoid a possible negative decision negatieve

in higher appeal.

Such process abuse should not go unnoticed and should certainly not go unnoticed
provide motivation for the Disputes Chamber to accept contested decisions in the future
pulling whenever the ground gets too warm for her underfoot.

3 Art. 1022 §3 of the Judicial Code states the following:

"At the request of one of the parties, which shall be made, as the case may be, after

questioning by the court, it may be subject to special reasons
decision to either reduce or increase the compensation, without the
King to exceed certain maximum and minimum amounts. be with
assessment, the judge takes into account:

- the financial capacity of the losing paromj, the amount of the
to reduce compensation;

rPAGE 01-00002223628-0008-0011-1-01-01-�

L _JCourt of appeal Brussels-2021/AR/282- p. 9

- the complexity of the case;

- the contractually determined compensation for the successful party;
- the manifestly unreasonable nature of the situation.,,

4 The manifestly unreasonable character of the situation is almost impossible in the present case
be denied, though the GBA makes an attempt nonetheless. The legal remedy
is placed on the ramp by the Dispute Chamber in a unilateral manner and this on a

an advanced point in the procedure at which the case is already fully capable.

The actions of the GBA not only cause an increase in lawyer's fees (the
procedure is restarted from the start), but causes additional
damage such as the delay in the administration of justice and the associated legal uncertainty.
In addition, the concluding party was convicted in the Contested Decision for a particularly high
to pay an administrative fine. A sum over which they, apparently for no reason

as evidenced by the withdrawal decision, was unable for months to
use for commercial purposes.

5 For the above reasons, the concluding party asks Uw Marktenhof for the increased
to award legal indemnity for non-monetary claims, with
namely EUR 12,000."

8.3.

It does not belong to the Marktenhof to make a value judgment about the legal concept of
the "withdrawal" of administrative legal acts and decisions.

In any event, the withdrawal in itself cannot be regarded as proof that the Disputes Chamber
of the DPA would have made a wrong or illegal decision.

The single consideration:

Whereas the Marktenhof in its rulings 2020/AR/813 of 18 November 2020 and

2021/AR/1159 of 24 February 2021 pointed out the importance of keeping data subjects
to inform them of the exact allegations prior to the handling of the file
and/or infringements of which he could be guilty;"

does not show any erroneous behavior on the part of the Disputes Chamber of the GBA. That a
government adheres to the judiciary demonstrates respect for the principles of the rule of law

and does not indicate any erroneous or reprehensible conduct.

Accordingly, no judgment can be drawn from the withdrawal itself as to whether or not the government has committed an error
be derived as the withdrawal is a discretionary power of the government.

The situation is different with the time at which the withdrawal was made. From the moment of

notification of Y's petition to the GBA, it was aware of all of Yven
with regard to the procedural steps followed.

rPAGE □ 1-□□□□ 2223628- □□□9- □□11-□ 1-□1-�

II].
L . _JCourt of appeal Brussels- 2021/AR/282 - p. 10

From that moment on, the Disputes Chamber of the GBA was therefore able to immediately change the contested decision
moving in.

By not doing so and by only withdrawing on May 19, 2021, where the case
for pleas was fixed on June 2, 2021, the GBA has a manifestly unreasonable situation until
which consists in making Y useless to conclude.

This course of action is incorrect and manifestly unreasonable, according to the GBA it is appropriate to pay
to order the court costs and to pay the legal costs in favor of Y
budget at € 7,500.

8.4.

To the extent that the Disputes Chamber of the GBA is of the opinion that it still has jurisdiction to
to re-investigate and prosecute the complaint lodged at the time against Y,
should it be that the Dispute Chamber in its entirety should have been composed by other physical
persons other than those who were part of the chamber when taking the now contested

decision.

Although the members of the Disputes Chamber are not judges, it is appropriate that this body follows the basic rules
of good governance including at least creating the appearance of
impartiality1.

FOR THESE REASONS,
THE COUNCIL,

Decisive by judgment on the contrary.

The proceedings were conducted in accordance with the law of June 15, 1935 on the use of the language
in court cases.

Notes that the Disputes Chamber of the GBA, by decision 61/2021 of 19 May 2021, the contested
has withdrawn decision 5/2021 of January 22, 2021 (DOS-2019-04867) in such a way that this
decision-sinex tune has disappeared from the legal system;

Explains the story of the Y dienvolgehic et nuncwithout object;

1Compare with Brussels 2018 AR1293 and Brussels 29 March 2011, TBO 2011, 176.

rPAGE 01-00002223628-0010-0011-01-0-�

l!I·•

L _J{ --

Court of Appeal Brussels - 2021/AR/282 - p. 11

Orders the Data Protection Authority to pay the legal costs, paid for Y on
€ 7,500.00 legal fee;

Does the Data Protection Authority, in accordance with Article 269/2 of the Code, condemn this?
of registration, mortgage and court fees until payment to the Belgian State, FPS Finance, from
the right of appeal in the amount of EUR 400.00.

Orders the Data Protection Authority to pay to Y the contribution "budgetary fund"

amounting to 20.00 euros;

This judgment was pronounced by the Marktenhof - Chamber Nineteen A of the Court of Appeal in
Brussels 30jun2021 by

M. BOSMANS Councilor dd. chair
A.M. WITTERS Councilor
O.DUGARDYN Deputy Councilor

B. VANDERGUCHT Registrar

1 yr\ •
t i \

B. VANDERGUCHT ( 11\ 0. DUGARDYN
\\
V

-

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�
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l

@@ Line 52: / Line 52: @@
 }}
-A supervisory authority may revoke its decision with the result that the decision retroactively disappears from the legal order. Also, it is no longer possible to pursue an action against the revoked decision as there is no longer any interest on the part of the defendant.
+The Court confirmed that, when the supervisory authority revokes its decision, the decision retroactively disappears. Therefore, it is no longer possible to pursue an action against the revoked decision as the defendant can no longer show an interest to challenge the decision.
 == English Summary ==
 === Facts ===
-The original decision of the Belgian DPA dd 22 Janury 2021 imposed an administrative fine of 25 000 EUR to a telecom provider.
+The complaint concerned the alleged assignment of the plaintiff's mobile phone number by his telecom provider to a third party, as a result of which the complainant could no longer use his number. The plaintiff's SIM card was deactivated and the third party was therefore able to view the plaintiff's personal mobile phone traffic and calls, as well as linked accounts (such as Paypal, WhatsApp and Facebook) from 16 to 19 September 2019.
-The complaint concerns the alleged assignment of the plaintiff's mobile phone number by his provider Y to a third party, as a result of which the complainant could no longer use his number.
+The Belgian DPA  imposed an administrative fine of 25 000 EUR to a telecom provider in its decision of 22 January 2021
-The plaintiff's SIM card was deactivated and the third party was therefore able to view the plaintiff's personal mobile phone traffic and calls, as well as linked accounts (such as Paypal, WhatsApp and Facebook) from 16 to 19 September 2019. Facebook) from 16 to 19 September 2019.
-The Belgian DPA revoked the above decision on 19 May 2021, reopened the proceedings before the ligitation chamber and invited the parties to submit new defences.
+The Belgian DPA revoked the above decision on 19 May 2021, reopened the proceedings before the litigation chamber and invited the parties to submit new arguments.
-In concrete terms, this means that the decision retroactively disappears from the legal order and thus and appeal is possible since the original decision does not exist anymore.
+=== Dispute ===
-Company Y accused the Belgian DPA of process abuse and states that referral to the ligitation chamber Chamber is a violation of article 13 of the Constitution and the provision of an effective remedy and the fair administration of justice.
+Company Y accused the Belgian DPA of process abuse and states that referral to the litigation chamber Chamber is a violation of article 13 of the Constitution and the provision of an effective remedy and the fair administration of justice.
 On top of that, Company Y asked the court to allocate increased litigation costs because of:
@@ Line 72: / Line 71: @@
 - delay of justice and legal uncertainty;
 - the situation's apparent unreasonable character: The Belgian DPA waited until the last moment to revoke the decision, where the case for pleadings was fixed on 2 June 2021.
-=== Dispute ===
 === Holding ===
 The Court ruled that: