APD/GBA (Belgium) - 14/2023

APD/GBA - 14/2023
Authority:	APD/GBA (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 5(1)(a) GDPR Article 6(1) GDPR Article 58(2)(c) GDPR
Type:	Complaint
Outcome:	Upheld
Started:	23.07.2021
Decided:	17.02.2023
Published:
Fine:	n/a
Parties:	n/a
National Case Number/Name:	14/2023
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	French
Original Source:	DPA/GBA (in FR)
Initial Contributor:	ls

According to the Belgian DPA, a controller had lawfully informed the rest of the staff that an employee was no longer working for the company. However, by precising that the employee had been dismissed with immediate effect, the controller violated Articles 5(1)(c) and 6(1) GDPR.

English Summary

Facts

The controller, a public authority, was the former employer of the data subject. The controller announced on his intranet that the data subject's contract was terminated by the controller, and with immediate effect. This intranet was accessible to 428 people. The data subject therefore lodged a complaint with the Belgian DPA.

Holding

The DPA noted that a distinction should be made between (i) announcing the contract termination to rest of the staff and (ii) clarifying the reasons of such termination. The DPA examined whether each of the elements relied on a legal basis (Article 5(1)(a) and 6(1) GDPR) and whether the minimisation principle was respected (Article 5(1)(c)).

Regarding the first part of the assessment, (i), the DPA considered that, under Article 6(1)(b), it is appropriate to inform employees of changes in the staff. Making information about employees available to staff facilitates exchanges between colleagues. The DPA therefore considered that the publication of staff changes on the intranet was legitimate under Article 6(1)(b).

The Belgian DPA, however, also analysed the second part of the message sent by the controller, (ii), in which the latter clarified or at least hinted at the reasons that had led to the dismissal. In particular, the controller had not only announced that the data subject was no longer an employee, but had also specified that the dismissal had taken place with 'immediate effect' and at the 'initiative of the controller'. This message carries an implied, underlying and sensitive meaning, which is a probable serious misconduct by the former employee.

The DPA therefore assessed whether this additional information (i.e. processing) was necessary. The authority started its analysis by taking into account Article 6(1)(e), under which the processing carried out in the public interest must be necessary for the performance of that task. The DPA concluded that the second part of the message was not necessary to fulfil a public interest, therefore ruling out Article 6(1)(e) GDPR. The DPA also analysed whether Article 6(1)(b) could be a legal basis. Also in this case, this supplementary information was held to be not necessary.

Overall, the DPA recalled that personal data must be adequate, relevant and limited to what is necessary for the purposes. While it is appropriate to inform staff of changes, there was no need to add other elements about the contract termination. Article 5(1)(c) was therefore also violated.

The DPA concluded that Article 5(1)(a), 5(1)(c) and 6(1) were violated and pursuant Article 58(2)(c) , ordered the controller to withdraw the mention in the intranet that the controller initiated the termination.

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English Machine Translation of the Decision

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

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                                                                          Litigation Chamber


                                                          Decision 14/2023 of February 17, 2023





File number: DOS-2021-05196


Subject: Complaint relating to the publication on the intranet of the dismissal of the complainant by her

ex-employer




The Litigation Chamber of the Data Protection Authority, made up of Mr. Hielke

Hijmans, chairman;

Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal data and

to the free movement of such data, and repealing Directive 95/46/EC (General Regulation on the

data protection), hereinafter “GDPR”;

Having regard to the Law of 3 December 2017 establishing the Data Protection Authority, hereinafter

“ACL”;


Having regard to the internal regulations as approved by the House of Representatives on 20
December 2018 and published in the Belgian Official Gazette on January 15, 2019;


Considering the documents in the file;



Made the following decision regarding:


The complainant: X, hereinafter “the complainant”; hereinafter “the complainant”; .

                                                                                                          .

The defendant: Y, hereinafter: “the defendant”. . Decision 14/2023 – 2/10



I. Facts and procedure


 1. On July 23, 2021, the complainant filed a complaint with the Authority for the Protection of

       data (hereinafter “the DPA”), against his former employer, the defendant

 2. On November 30, 2021, the complaint was declared admissible by the Service de Première Ligne on

       the basis of Articles 58 and 60 of the LCA and the complaint is forwarded to the Litigation Chamber

       pursuant to Article 62, § 1 of the LCA.


 3. Pursuant to article 95 § 2, 3° of the LCA as well as article 47 of the rules of order

       inside the DPA, a copy of the file may be requested by the parties. If one of

       parties wishes to make use of the possibility of consulting the file, the latter is required to

       contact the secretariat of the Litigation Chamber, preferably via the address

       litigationchamber@apd-gba.be.


II. Motivation



  4. The complaint concerns the publication on the intranet of the defendant (the former employer of the
        complainant), in the section concerning personnel changes, the mention of the

        plaintiff's immediate breach of contract. This raises the fact that the ad states

        that the termination of the contract takes place at the initiative of the defendant, and that the dismissal is immediate

        although this would not be true. The complainant indicates that the mention of the character

        immediate dismissal (or breach of contract on the part of the defendant) may leave

        think that the defendant would have terminated her employment contract for serious fault in her

        chief.


 5. The Litigation Chamber considers that its analysis of the announcement on the intranet must be

       split in two, and relate on the one hand to the very announcement of the breach of contract between the

       defendant and the plaintiff (i.e. his departure), and on the other hand on the mention of the party to

       the initiative on which the termination of the contract takes place as well as the immediacy of the termination.

       The Litigation Chamber examines below whether each of these elements respects the

       principle of legality (article 5.1.a and 6.1 GDPR) as well as the principle of minimization (article 5.1.c

       GDPR).





    II.1. Basis of lawfulness of processing (Article 5.1.a and 6.1 GDPR)


 6. The Litigation Chamber examines below article 6.1.e and 6.1.b GDPR as

       potential basis of lawfulness for the disputed processing on the part of the defendant.






1 Pursuant to article 61 LCA, the Litigation Chamber informs the parties by this decision, of the fact that the complaint has been
declared admissible.
2 Pursuant to Article 95, § 2 LCA, by this decision, the Litigation Division informs the parties of the fact that following

of this complaint, the file was forwarded to him. Decision 14/2023 – 3/10



        II.1.1. Regarding the application of Article 6.1.e) GDPR

 7. Insofar as the defendant is a public authority, the Litigation Chamber

       analysis below whether the defendant can rely on Article 6.1.e) GDPR to found the

       disputed treatment.


 8. The Belgian legislator has not applied paragraph 2 of article 6 GDPR, which allows

       the possibility of providing "more specific provisions to adapt the application of the

       rules of this Regulation with regard to processing for the purpose of complying with the

       paragraph 1, points (c) and (e), determining more precisely the specific requirements
                                       3
       applicable to the processing (…)”.

       The Litigation Chamber recalls that Article 6.1.e) GDPR implies that the person responsible for the

       processing is able to demonstrate that:


       a) the processing is for the performance of a task carried out in the public interest or for the exercise of

           the public authority; And

       b) the processing is necessary for the performance of the task or the exercise of authority

           mentioned above.


 9. The Litigation Division begins by examining whether the necessary character is satisfied
       of the treatment.


 10. Paragraph 3 of Article 6 GDPR stipulates that the purposes of the processing carried out on the basis

       of the exercise of public authority "are necessary for the performance of a mission of interest

       public or subject to the exercise of official authority vested in the person responsible for the

       treatment ".

 11. Also, in its Huber judgment, the Court of Justice of the European Union (CJEU), expressed itself

       on this condition of necessity. It thus indicates:


 12. “(…) having regard to the objective of ensuring an equivalent level of protection in all

       Member States, the concept of necessity as it results from Article 7(e) of the

       Directive 95/46, which aims to precisely delimit one of the cases in which the

       processing of personal data is lawful, cannot have variable content

       depending on the Member States. Therefore, it is an autonomous concept of law
       community which must be interpreted in such a way as to respond fully to

       the subject of this Directive as defined in Article 1(1) thereof”


 13. In his conclusions, the Advocate General explains in this regard that “the concept of necessity has

       a long history community place and it is well established as an integral part

       of the proportionality test. It means that the authority which adopts a measure which carries

       interference with a fundamental right in order to achieve a justified objective must demonstrate that

       this measure is the least restrictive to achieve this objective. Furthermore, if the



3Article 6.2 GDPR
4
 CJEU, Heinz Huber v. Bundesrepublik Deutschland, 16 December 2008, C 524/06, para. 52 Decision 14/2023 – 4/10



       processingofpersonaldatamaymayinfringefundamentallaw

       respect for privacy, article 8 of the European Convention for the Protection of Rights

       Rights and Fundamental Freedoms (ECHR), which guarantees respect for privacy and

       family, also becomes relevant. As the Court stated in the Österreichischer judgment

       Rundfunk and others, if a national measure is incompatible with Article 8 of the ECHR, this

       measure cannot meet the requirement of Article 7(e) of the Directive. Article 8,

       paragraph 2 of the ECHR provides that an interference with private life may be justified if

       it pursues one of the objectives listed therein and “in a democratic society, is

       necessary” for one of these purposes. The European Court of Human Rights has ruled that the

       notion of “necessity” implies that a “pressing social need” is involved”. 5


 14. This case law formulated with regard to Article 7(e) of Directive 95/46/EC remains

       relevant today even though Directive 95/46 has been repealed, since this

       condition of necessity is maintained under the terms of Article 6.1 b) to f) of the GDPR. Section 6.1

       of the GDPR indeed takes up the terms of article 7 of directive 95/46/EC of which it is

       the equivalent. It also applies to all the bases of lawfulness of article 6.1 GDPR which

       retain this condition of necessity.

 15. The Court of Justice has also clarified that if there are realistic and less

       intrusive, treatment is not “necessary”.6


 16. The Article 29 Group also referred to the case law of the Court

       Court of Human Rights (ECHR) to identify the requirement of necessity and concludes 7

       that the adjective "necessary" does not have the same flexibility as the term: "admissible", "normal

       “, “helpful”, “reasonable” or “advisable”.


 17. It is necessary to examine the necessity of the publication in the intranet of the rupture

       of the plaintiff's contract, with mention of the party at whose initiative it was terminated

       to the contract as well as the immediacy of the termination.

 18. In the present case, the examination of the extract from the intranet in which the

       Respondent's personnel changes submitted by Complainant indicates that in

       each case, in addition to the date of entry into service or end of service of the members of the

       personnel concerned, the party at whose initiative the contract is terminated is also

       specified. It is therefore standard procedure for the defendant.


 19. In order to assess the necessary nature for the achievement of the public interest mission pursued

       speak to the person responsible for processing, it should be examined whether the same result can be obtained

       by other means, without processing personal data or without processing




5
 Conclusions of the Advocate General P. Maduro of April 3, 2008 in the CJEU case, Heinz Huberv.BundesrepublikDeutschland,
16 December 2008, C 524/06
6CJEU, Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, 9 November 2010, joined cases C‑92/09 and
C‑93/09

7Article 29 Group, Opinion 06/2014 of April 9, 2014 on the notion of legitimate interest pursued by the data controller
data processing within the meaning of Article 7 of Directive 95/46/EC, WP 217
8ECHR, 25 March 1983, Silver and others v. UK, para97 Decision 14/2023 – 5/10



       unnecessarily burdensome or intrusive for data subjects. Bedroom
       Litigation considers that it is not necessary to indicate the party at the initiative of which the

       contract is terminated in order to inform staff of employee changes. There

       simple mention of the breach of contract with an employee as well as the effective date

       are sufficient for this purpose.


 20. The Litigation Chamber notes that this is also personal data

       sensitive, since the fact that the contract is terminated at the initiative of the employer, and a fortiori

       with immediate effect, implies with a high probability of serious misconduct on the part of
                                                                          9
       the employee. It also notes that the defendant employs 428 employees scattered throughout
       offices around the world, and concludes that a relatively large number of

       people have access to this information.


 21. In light of the above considerations, the Litigation Chamber concludes that it is not

       meets the criterion of necessity in the context of the mission of public interest.

 22. Insofar as the criterion of necessity of the processing provided for by

       article 6.1.e GDPR, the Litigation Chamber does not analyze further whether article 6.1.eRGPD

       is a basis of legality on the part of the defendant.


 23. Consequently, the Litigation Chamber concludes that Article 6.1.e) GDPR cannot constitute

       a basis of lawfulness for the publication in the defendant's intranet of the breach of

       plaintiff's employment contract, with the mention of the fact that the termination took place at the initiative of

       the defendant, and that it has immediate effect.





        II.1.2. Regarding the application of Article 6.1.b) GDPR


 24. The Litigation Chamber examines below whether Article 6.1.b GDPR can constitute a

       basis of lawfulness on the part of the defendant for the disputed processing.

 25. The Litigation Chamber notes that the publication of the changes in the members of the

       staff (departures and arrivals) on its intranet by the defendant falls within the framework

       of the termination of the employee's employment relationship and this. In this

       meaning, the Litigation Chamber has already stated in its decision 63/2021, that it is appropriate,

       within the framework of personnel policy, to inform employees of such

       movements. LaChambre Litigation considers that, since this processing is part of the

       framework of the end of the employment relationship, it can be considered as part of the execution of the
                          10
       employment contract . The Article 29 Working Party indicated as to the situations where the




9https://be.linkedin.com/company/Y
10 See in this respect recital 155 GDPR: “The law of the Member States or collective agreements, including
"corporate agreements" may provide specific rules relating to the processing of personal data of
employeesintheframeworkofemploymentrelationships,particularlytheconditionsunderwhichthepersonaldata

in the context of employment relationships may be processed on the basis of the employee's consent, for the purposes of
recruitment, the performance of the employment contract, including compliance with the obligations set by law or by agreements
collective rights, management, planning and organization of work, equality and diversity in the workplace, Decision 14/2023 – 6/10



       treatment is

       necessary for the performance of a contract to which the data subject is a party:

       “There is an obvious link here between the assessment of the necessity and the respect of the principle

       purpose limitation. It is important to determine the exact purpose of the contract,

       that is to say, its substance and its fundamental objective, because this is what will make it possible to

       check whether the data processing is necessary for the performance of the contract.

       In certain borderline situations, one may be led to question oneself or to gather

       more specific additional elements, in order to determine whether the processing is

       necessary for the performance of the contract. Thus, building a database of

       contact for internal use containing names, business addresses, phone numbers

       telephone number and e-mail addresses of all employees of a

       company, intended to facilitate the exchange of information between colleagues, can in

       certain cases be considered necessary for the performance of a contract under

       Article 7(b) (…)”


 26. It can therefore be considered that the processing consisting of the announcement on the intranet of the

       defendant of changes in staff members can therefore rely on article

       6.1.b) of the GDPR, and must be considered legitimate on the part of the defendant.


 27. The Litigation Chamber concludes in this respect that there was no breach of the principle of

       legality (article 5.1.a and 6.1 GDPR) for this part of the announcement only (announcement of

       changes in staff members, without mention of the party at the initiative of a
       breach of contract or any immediate effect of the breach).


 28. Conversely, the mention of the party initiating the termination of the employment contract, as well as the

       mention of the immediate nature of the rupture do not in any case respect the criterion of

       necessity of processing based on Article 6.1.b GDPR. The Litigation Chamber considers

       effect that no link can be established between the mention of the party at the initiative of the rupture

       of the employment contract, as well as between the mention of the immediate nature of such a termination, and

       the substance of the employment contract between the plaintiff and the defendant. She returns for

       more details as to the necessary character in points 9 to 16 above.


 29. As indicated above (point 20), this is also personal data

       sensitive, since the fact that the contract is terminated at the initiative of the employer, and a fortiori

       with immediate effect, implies with a high probability of serious misconduct on the part of
                                                                         13
       the employee. It also recalls that the defendant employs 428 employees scattered throughout





occupational health and safety, and for the exercise and enjoyment of employment rights and benefits,
individually or collectively, as well as for the purpose of terminating the employment relationship. »

11 Article 29 Working Party, Opinion 06/2014 on the notion of legitimate interest pursued by the data controller
data within the meaning of article 7 of directive 95/46/EC, April 9, 2014, p19
12Section 6.1. "The processing is only lawful if, and insofar as, at least one of the following conditions is met: […]

b) the processing is necessary for the performance of a contract to which the data subject is a party or for the performance of measures
pre-contractual agreements taken at the latter's request; […]
1https://be.linkedin.com/company/Y Decision 14/2023 – 7/10


      offices around the world, and concludes that a relatively large number of

      people have access to this information.

30. The Litigation Chamber concludes that the constitutive processing of the announcement on the intranet

      of the party at the initiative of which the breach of contract takes place (implicitly the dismissal, if at

      initiative of the employer) cannot be based on article 6.1.b GDPR.


31. Examination of articles 6.1.e and 6.1.b GDPR indicates that these articles do not constitute a
      basis of lawfulness for the disputed processing. In the absence of other probable bases of lawfulness,

      the Litigation Chamber finds a violation of Article 5.1.a and 6.1 GDPR.


32. The consideration that following a letter from the plaintiff's lawyer to the defendant
      inviting him to withdraw this mention, the mention of the immediate nature of the end of the contract has been

      removed from its intranet by the defendant does not alter this finding.


33. As indicated below (see paragraphs 38 to 40), this is a prima facie decision taken by the

      Litigation Chamber pursuant to Article 95 of the LCA on the basis of the complaint
      introduced by the complainant, as part of the “procedure prior to the substantive decision”

      and not a decision on the merits of the Litigation Chamber within the meaning of Article 100 of the

      ACL. The purpose of this decision is to inform the defendant, allegedly responsible for the

      processing, because it may have violated the provisions of the GDPR,

      in order to enable it to still comply with the aforementioned provisions.

34. If, however, the defendant does not agree with the content of this decision

      prima facie and believes that it can make factual and/or legal arguments that

      could lead to another decision, it may send the Litigation Chamber a

      request for processing on the merits of the case.





   II.2. Principle of minimization (article 5.1.c GDPR)


35. The data minimization principle states that personal data
      must be adequate, relevant and limited to what is necessary for the purposes

      for which they are processed. The Litigation Chamber concluded above (points 19-20)

      that the purpose of the defendant to inform its personnel of the changes in

      in no way requires that the party at whose initiative the termination of the employment contract

      took place (which implies a dismissal if at the initiative of the employer) is not indicated, nor a fortiori

      the immediacy of the termination of the contract.

36. As indicated above, the Litigation Chamber considers that the announcement concerning the rupture

      of contract (i.e. the departure) between the defendant and the plaintiff, without mention of the party to

      the initiative of which the rupture takes place, and without mention of the immediate nature of the rupture

      satisfies the principle of minimization, with regard to the purpose of informing the members of the
      personnel changes in personnel. Nevertheless, the information relating to the

      party at whose initiative the termination, and mention of the immediate nature of the termination Decision 14/2023 – 8/10



       is in no way necessary with regard to the purpose pursued which could reasonably

       be reached without communicating this information. Consequently, the Chamber

       Litigation finds that the defendant violated article 5.1.c GDPR by including these

       mentions in the ad in question.

 37. The Litigation Chamber considers that on the basis of the aforementioned facts, there is reason to

       conclude that the defendant may have committed a violation of the provisions of the GDPR, which

       which justifies that in this case, a decision is taken in accordance with article

       95, § 1, 5° of the LCA, more specifically to order compliance with the request of the

       plaintiff to remove the mention on the defendant’s intranet that the

       defendant initiated the termination of the employment contract (Article 17 of the GDPR) given that

       this violates articles 5.1.a and 6 as well as 5 .1.c of the GDPR.


 38. As indicated above (points 33-34) this decision is a prima facie decision taken

       by the Litigation Chamber in accordance with article 95 of the LCA on the basis of the complaint
                                                                                                    14
       introduced by the complainant, as part of the “procedure prior to the substantive decision”

       and not a decision on the merits of the Litigation Chamber within the meaning of Article 100 of the
       ACL.


 39. The purpose of this decision is to inform the defendant, allegedly responsible for the

       processing, because it may have violated the provisions of the GDPR,

       in order to enable it to still comply with the aforementioned provisions.


 40. If, however, the defendant does not agree with the content of this decision

       prima facie and believes that it can make factual and/or legal arguments that

       could lead to another decision, it may send the Litigation Chamber a

       request for treatment on the merits of the case via the e-mail address litigationchamber@apd-
       gba.be, within 30 days of notification of this decision. The case

       applicable, the execution of this decision is suspended for the period

       aforementioned.


 41. In the event of further processing of the case on the merits, pursuant to Articles 98, 2° and 3°

       juncto article 99 of the LCA, the Litigation Chamber will invite the parties to introduce their

       conclusions and attach to the file all the documents they deem useful. If applicable, the

       this decision is permanently suspended.


 42. With a view to transparency, the Litigation Chamber finally emphasizes that a

       dealing with the case on the merits may lead to the imposition of the measures mentioned in
       section 100 of the ACL.



14
  Section 3, Subsection 2 of the ACL (articles 94 to 97 inclusive).
15Art. 100. § 1. The litigation chamber has the power to
 1° dismiss the complaint without follow-up;
 2° order the dismissal;
 3° pronouncing the suspension of the pronouncement;
 4° to propose a transaction;
 5° issue warnings and reprimands;
 6° order to comply with requests from the data subject to exercise his or her rights;
 7° order that the person concerned be informed of the security problem; Decision 14/2023 – 9/10



III. Publication of the decision

 43. Given the importance of transparency regarding the decision-making process of the Chamber

       Litigation, this decision is published on the website of the Protection Authority

       Datas. However, it is not necessary for this purpose that the identification data

       of the parties are communicated directly.





    FOR THESE REASONS,

    the Litigation Chamber of the Data Protection Authority decides, subject to

    the introduction of a request by the defendant for treatment on the merits in accordance with

    to articles 98 e.s. of the ACL:


       - pursuant to Article 58.2.c) of the GDPR and Article 95, §1, 5° of the LCA, to order

           the defendant to remove the mention from its intranet (if it is still there)

           that the defendant initiated the termination of the employment contract

           (article 17.1 of the GDPR), within 30 days of notification of the
           this decision;


       - under article 58.2.c) of the GDPR and article 95, §1, 4° of the ACL, to formulate

           a warning to the defendant to cease indicating in its intranet the party to be

           the initiative of which the terminations of the contract with its employees take place, especially

           possible immediacy

       - to order the defendant to inform by e-mail the Data Protection Authority

           data (Litigation Chamber) of the follow-up given to this decision, in the

           same deadline, via the e-mail address litigationchamber@apd-gba.be; And


       - if the defendant does not comply in good time with what is requested of it

           above, to deal ex officio with the case on the merits, in accordance with articles 98 e.s. of
           the ACL.



In accordance with Article 108, § 1 of the LCA, an appeal against this decision may be lodged,

within thirty days of its notification, to the Court of Markets (court

d'appel de Bruxelles), with the Data Protection Authority as defendant.







 8° order the freezing, limitation or temporary or permanent prohibition of processing;
 9° order compliance of the processing;
 10° order the rectification, restriction or erasure of the data and the notification thereof to the recipients of the

    data ;
 11° order the withdrawal of accreditation from certification bodies;
 12° to issue periodic penalty payments;
 13° to issue administrative fines;
 14° order the suspension of cross-border data flows to another State or an international body;
 15° forward the file to the public prosecutor's office in Brussels, who informs it of the follow-up given to the file;
 16° decide on a case-by-case basis to publish its decisions on the website of the Data Protection Authority. Decision 14/2023 – 10/10



Such an appeal may be introduced by means of an interlocutory request which must contain the

information listed in article 1034ter of the Judicial Code. The interlocutory motion must be

filed with the registry of the Court of Markets in accordance with article 1034quinquies of the C. jud. , or 17


via the e-Deposit information system of the Ministry of Justice (article 32ter of the C. jud.).







(Sr.) Hielke H IJMANS

President of the Litigation Chamber





























































16
  The request contains on pain of nullity:
  (1) indication of the day, month and year;
  2° the surname, first name, domicile of the applicant, as well as, where applicable, his qualities and his national register number or
     Business Number;

  3° the surname, first name, domicile and, where applicable, the capacity of the person to be summoned;
  (4) the object and summary statement of the means of the request;
  (5) the indication of the judge who is seized of the application;
  6° the signature of the applicant or his lawyer.

17The request, accompanied by its annex, shall be sent, in as many copies as there are parties involved, by letter
recommended to the court clerk or filed with the court office.