APD/GBA (Belgium) - 72/2023

APD/GBA - 72/2023
Authority:	APD/GBA (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 15 GDPR Article 100.1 Loi portant création de l'Autorité de protection des données Article 95, §1, 3° Loi portant création de l'Autorité de protection des données
Type:	Complaint
Outcome:	Other Outcome
Started:	30.04.2023
Decided:	12.06.2023
Published:
Fine:	n/a
Parties:	n/a
National Case Number/Name:	72/2023
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	French
Original Source:	Autorité de protection des données (in FR)
Initial Contributor:	Enzo Marquet

A complaint aiming at ordering the restitution of a file from a lawyer to its client is not an Article 15 GDPR matter. The DPA considered that it was clear from the facts that this matter concerned lawyers professional conduct and that it had, in any case, no competence to order the restitution of the file

English Summary

Facts

In the context of a legal proceedings, a data subject was attributed a new lawyer after the death of her previous one. She then requested from her new lawyer to return her the legal files but he didn't, claiming that he hadn't had the time to go through all the files of the deceased lawyer yet.

The data subject contacted the bar association to intervene but it concluded that it could not issue any injunctions to the lawyer. She therefore filed a complaint with the Belgian DPA

Holding

The Belgian DPA stated that the data subject did not complain on the basis on the GDPR. The DPA referred the EDPB Guidelines 01/2022 on data subject rights - right of access, where it is stated that "if the data subjects clarify that their request is based on sectoral legislation or on national legislation regulating the specific issue of access to certain categories of data, and not on the GDPR, such a request shall be examined by the controller in accordance with such sectoral or national rules, where applicable".

The DPA considered that it is clear from the facts that this matter concerned lawyers professional conduct and that it had, in any case, no competence to order the restitution of the file.

The DPA added that the right of access under Article 15 would unlikely result in the retrieval of the file, it would only grant access to the communication of the personal data relating to the data subject.

Comment

Under the EDPB guidelines on access,"Data subjects are not required to specify the legal basis in their request."

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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 72/2023 of June 12, 2023



File number: DOS-2023-01513


Subject: Complaint relating to the absence of restitution of a procedural file by a

attorney



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

Hijmans, President, sitting alone;


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 Law of 30 July 2018 relating to the protection of natural persons with regard to

processing of personal data (hereinafter LTD);

Having regard to the Rules of Procedure 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: Mrs. X, hereinafter “the complainant”;


The defendant: Maître Y, hereinafter “the defendant”; Decision 72/2023 - 2/7



I. Facts and procedure


 1. The complaint concerns the failure to return to the complainant a file relating to a case

       legal proceedings handled for the plaintiff by the defendant in his capacity as a lawyer; the latter having

       succeeded the initial counsel for the complainant who died during the proceedings.

 2. On March 30, 2023, the complainant filed a complaint with the Authority for the Protection of

       data (APD).

 3. According to her complaint, the plaintiff states that in 2018, Maître Z., meanwhile deceased,

       was handling a legal case for his defense in his capacity as a lawyer.

 4. The defendant was appointed to succeed his deceased colleague. The plaintiff indicates that

       in all likelihood, the defendant was therefore entrusted with his case. She indicates

       however, not been informed.

 5. After several years of the suspension of the proceedings, the file of the complainant has

       new developments in 2022 and the Complainant chooses a new counsel in the

       person of Master V.


 6. The complainant indicates that she tried several times from September 15, 2022
       to obtain the restitution of the file from the defendant, without success.

       only answer that he had not yet had time to sort all the

       records of her deceased colleague. The complainant still brings only herself and her new

       lawyer Me V were, during a telephone conversation, invited to come and proceed themselves

       same research to find this file in the office of the defendant. The Complainant
       produced in support of the foregoing several email exchanges with the defendant in

       which she invokes the urgent need to have this file returned for the purposes of

       the legal proceedings in progress. Members of the competent bar association (the

       in particular) are a copy of these exchanges.

 7. The complainant indeed indicates that she has requested the intervention of the order of the competent bar.

       It indicates that this request remained without concrete response on the date of filing of its

       complaint to the DPA.

 8. The complainant produces in this regard an exchange of correspondence with the order of the bar

       competent. In its response of March 2, 2023, the bar association indicates to the complainant that the

       defendant intervenes as judicial liquidator of his previous counsel following a

       appointment by the court of first instance on which it depends for the exercise of the mandate

       was entrusted to him. The bar association concludes that it is therefore in no way up to it to do
       any injunction to the defendant in this context which does not fall, according to its terms, to

       strictly speaking of the practice of his profession as a lawyer. Faced with the misunderstanding of

       complainant who considers that disciplinary action should be reserved for the attitude of the Decision 72/2023 - 3/7



       defendant, the chairman of the competent bar association wrote on March 6, 2023 to the plaintiff

       that he will inform her of the follow-up to be given to the facts that she has denounced. Left unanswered,

       complainant filed a complaint with the DPA on March 30, 2023 as mentioned in point 1.

 9. On April 11, 2023, the Front Line Service (SPL) of the DPA declares the complaint admissible on

       the basis of Articles 58 and 60 of the LCA, and sends it to the Litigation Chamber

       in accordance with Article 62, § 1 of the LCA.



II. Motivation


 10. Based on the facts described in the complaint file as summarized above and the

       file of documents, and on the basis of the powers attributed to it by the legislator

       under article 95, § 1 of the LCA, the Litigation Chamber decides on the action to be taken

       on file.


 11. In this case, the Litigation Chamber decides to proceed with the classification without further

       the complaint, in accordance with Article 95, § 1, 3° of the LCA, for the reasons set out below.

 12. In matters of dismissal, the Litigation Chamber is required to justify its

       step-by-step decision and:


            - to pronounce a classification without technical continuation if the file does not contain or not

                sufficient elements likely to lead to a sanction or if it includes a

                technical obstacle preventing him from rendering a decision;


            - or pronounce a classification without further opportunity, if despite the presence

                elements likely to lead to a sanction, the continuation of the examination of the

                file does not seem to him to be appropriate given the priorities of ODA such as

                specified and illustrated in the Chamber's Discontinued Classification Policy
                               2
                Litigation.

 13. In the event of dismissal based on several grounds, the latter (respectively,

       classification without technical follow-up and classification without opportunity follow-up) must be

       addressed in order of importance .3


 14. In this case, the Litigation Chamber decides to proceed with the dismissal of the

       complaint for the technical reason based on the absence of any evidence on the part of the

       defendant of a breach of the GDPR or the data protection rules whose




1Cour des marchés (Brussels Court of Appeal), 2 September 2020, judgment 2020/AR/329, p. 18.
2
 In this respect, the Litigation Chamber refers to its policy of classification without follow-up as developed and published on the
website of the Data Protection Authority: https://www.autoriteprotectiondonnees.be/publications/politique-de-
classification-without-continuation-of-the-litigation-chamber.pdf .
3 See Title 3 – In which cases is my complaint likely to be dismissed by the Litigation Chamber? of the
dismissal policy of the Litigation Chamber. Decision 72/2023 - 4/7



       Litigation Chamber is responsible for ensuring compliance. The Litigation Chamber

       considers on this basis that it is inappropriate to continue the examination of the file and decides
                                                                                                4
       consequence of not carrying out, inter alia, an examination of the case on the merits.

 15. The Litigation Chamber notes that the complainant denounces the absence of restitution by the

       defendant of a file of legal proceedings which concerns him, including the

       transmission of this file by the defendant to one of his colleagues, new counsel for the

       complainant.


 16. In this conflict, the Litigation Chamber notes that no request based on the GDPR has been

       was formulated by the plaintiff with regard to the defendant. Therefore, no breach of the GDPR

       cannot be observed on the part of the latter.

 17. In its Guidelines on the right of access, the European Protection Board

       (EDPS) thus states that, of course, “Data subjects are not required to specify the

       legal basis in their request” and goes on to state that “However, if the data subjects

       clarify that their request is based on sectoral legislation or on national legislation regulating

       the specific issue of access to certain categories of data, and not on the GDPR, such a

       request shall be examined by the controller in accordance with such sectoral or national

       rules, where applicable”.


 18. It undeniably follows from the facts giving rise to the complaint and the terms of the exhibits

       produced in support of it that it is in terms of compliance with the rules of ethics and

       professionals of the lawyer that the plaintiff places in order to obtain the restitution and the

       communication of his file (and not even of his personal data, whether

       under the GDPR or under any other applicable sector-specific legislation) and not

       in terms of the processing of data concerning him. The Litigation Chamber wants it for
       proof that, faced with the attitude of the defendant, it was at the order of the competent bar that the

       complainant addressed herself as described above.


 19. The Litigation Chamber further notes that even under the terms of her complaint, the complainant

       does not identify or even suggest any grievance based on a possible breach of the GDPR

       or other relevant data protection provisions.




4Cf. criterion A.2 in the dismissal policy of the Litigation Chamber.

5European Data Protection Board, Guidelines 01/2022 on data subject rights - Right of access, Version 2.0.
of March 28, 2023, point 47: Free translation: “Data subjects are not required to specify the legal basis

of their request" - "However, if the persons concerned specify that their request is based on legislation

sectoral or national governing the specific issue of access to certain categories of data, and not on the GDPR,
such a request will be examined by the data controller in accordance with these sectoral or national rules,

if applicable”.

https://edpb.europa.eu/system/files/2023 04/edpb_guidelines_202201_data_subject_rights_access_v2_en.pdf Decision 72/2023 - 5/7



 20. The Litigation Chamber calls in this regard that under Article 4 of the ACL “the Authority

       of data protection [of which it is the administrative litigation body] is
       responsible for monitoring compliance with the fundamental principles of the protection of

       personal data, within the framework of this law and the laws containing

       provisions relating to the protection of the processing of personal data”.


 21. The Litigation Division finally states that it has not, moreover, under the terms of Article 95.1.

       as under section 100.1 of the ACL, no jurisdiction to order the

       restitution of a file of legal proceedings by a lawyer to the complainant, or even more

       to order the transfer of such file by the defendant to the new council of the

       complainant as requested by the complainant.

 22. The Litigation Division does not have the competence to rule on the manner

       which the defendant is required to carry out his mandate as liquidator. It results in fact from the

       correspondence produced by the complainant, that the order of the competent bar association

       mentioned that the defendant was appointed liquidator of the firm of Maître Z by the court

       first instance and that it is on this tribunal that the exercise of its mandate would depend (cf.

       item 7).


 23. In conclusion of the foregoing, the Litigation Division classifies the complaint on the ground

       technique in accordance with point 13 above.

 24. Without prejudice to the foregoing, the Litigation Chamber adds that the case file

       legal proceedings requested by the plaintiff contains, in all likelihood,

       personal data concerning him with regard to which he can exercise the right

       of access recognized by article 15 of the GDPR. Such a request would not, however, entail

       not necessarily the restitution of the requested judicial file in its entirety but

       only the communication of personal data relating to the complainant

       in accordance with the requirements of Article 15 of the GDPR.

 23. Even assuming that the complaint should be interpreted as a request based on


       Article 15 of the GDPR (and to which the defendant refrained from responding), quod non, the
       The Litigation Chamber would nevertheless close the complaint without further action for the reason

       of opportunity referred to in point B.3 . of its policy of dismissal insofar as the complaint





6Emphasis added by the Litigation Chamber.

7PointB.3.ofthedismissalpolicy:B.3Yourcomplaintisancillarytoawiderdisputethatneedstobebeen
argued before the judicial and administrative courts and tribunals or other competent authority If your complaint is

ancillary to a broader dispute (e.g. request for access to a document in the context of a broader issue of

dismissal or divorce), the Litigation Division may consider that its intervention is not strictly necessary
and that it is more appropriate for you to bring your claim before the appropriate court or competent authority which

will have an overview of all the elements of the main dispute (eg labor court, family court, or the Decision 72/2023 - 6/7



       would be part of a broader conflict over the return of a lawyer's file - which

       restitution would ipso facto entail access to the requested data – with regard to which a

       disciplinary procedure is already pending before the order of the competent bar and which

       would also fall under the jurisdiction of the courts and tribunals (court of first instance) as to

       the proper execution by the defendant of his mandate as liquidator.



III. Publication and communication of the decision


 25. Given the importance of transparency with regard to the process

       decision-making and the decisions of the Litigation Chamber, this decision will be published on the

       ODA website. However, for this purpose it is not necessary that the data

       identification of the parties are directly mentioned.

 26. In accordance with its policy of dismissal, the Litigation Chamber

       communicate the decision to the respondent. Indeed, the Litigation Chamber decided to

       communicate its decisions of classification without follow-up to the defendants by default. There

       However, the Litigation Chamber refrains from such communication when the complainant

       requested anonymity vis-à-vis the defendant and when the communication of the decision to the

       defendant, even if pseudonymised, nevertheless risks being re-identified. 9

       This is not the case in the present case.






    FOR THESE REASONS,

    the Litigation Chamber of the Data Protection Authority decides, after deliberation,

    to close this complaint without further action pursuant to Article 95, § 1, 3° of the LCA.





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.






FPS Economy). The judge or competent authority may then knowingly order the production of documents

which it deems necessary to decide your case.

2. There is a legal or administrative procedure in progress or closed by a decision, the subject of which includes the complaints

your complaint The complaint form invites you to indicate whether your complaint is or has been the subject of litigation before other
instances, such as judicial or administrative courts and tribunals.

8Cf. Title 5 – Will the ranking without continuation be published? Will the opposing party be informed? of the policy of

dismissal of the Litigation Chamber.
9Ibidem. Decision 72/2023 - 7/7




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 11


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








(se). Hielke HIJMANS


President of the Litigation Chamber





















































10The 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.
11
  The request, accompanied by its appendix, is sent, in as many copies as there are parties involved, by letter
recommended to the court clerk or filed with the court office.