Court of Appeal of Brussels - 2021/AR/1044

Hof van Beroep - 2021/AR/1044
Court:	Court of Appeal of Brussels (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 66 GDPR Article 78(1) GDPR Article 47 CFREU 108, § 1, par. 2 WOG
Decided:	16.07.2021
Published:	16.07.2021
Parties:	Belgian Federal Public Service Finance ADP/GBA
National Case Number/Name:	2021/AR/1044
European Case Law Identifier:
Appeal from:	APD/GBA (Belgium) 66/2021
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	Tussenarrest 16 juli 2021 (in Dutch)
Initial Contributor:	Matthias Smet

The Brussels Court of Appeal refused to suspend the enforcement of a decision by the Belgian DPA, because the appellant did not put forward any concrete evidence to justify its claim for suspension. The appellant must prove that the enforcement of the DPA's decision would violate the right to an effective remedy as set out in Article 47 of the Charter.

English Summary

Facts

The Belgian tax department appealed a decision of the Belgian DPA that was provisionally enforceable, and asked for the immediate suspension of the implementing measures already taken until the Court has ruled on the merits of the case.

Holding

According to the Court, an appeal against an administrative decision can only be effective if the applicant is not put under pressure to pay a fine or to comply with the contested decision immediately.

Article 66 GDPR provides the possibility of an "urgency procedure" where a supervisory authority considers that there is an urgent need to act in order to protect the rights and freedoms of data subjects. By way of derogation the supervisory authority can immediately adopt provisional measures intended to produce legal effects on its own territory with a specified period of validity which shall not exceed three months. Reading this Article (together with article 60 and 62 of the GDPR), it can be deduced that the European legislator did not intend to make decisions of the litigation chamber of a DPA provisionally enforceable.

Article 108, § 1, par. 2 WOG, which provides for the provisional enforceability of the decisions of the Belgian DPA, must be interpreted strictly: in order to suspend the measures adopted by the DPA, the applicant must prove and motivate that the immediate enforceability of the measure would violate the right to an effective remedy as set out in Article 47 of the Charter of Fundamental Rights of the EU ('the Charter').

In this case the court rules by interlocutory judgment that:

• the Belgian tax department did not put forward any concrete evidence, either in the application or at the hearing, to justify its claim for suspension and, therefore, its application is unfounded;
• the Court prepares the case for hearing on the merits on Wednesday 10 November 2021.

Comment

The reference to Article 66 GDPR by the Court seems irrelevant, since Article 66 is a derogation to the one stop shop principle, where the Lead SA has exclusive competence to adopt a measure. Under Article 66 GDPR, another DPA can adopt a temporary decision, to be confirmed by the EDPB. Even in such a case, the GDPR does not prevent the measure from being immediately enforceable.

In a former decision, the Court of Appeal granted the suspension of the decision of the DPA.

This case shows that a stay of preliminary enforcement isn't automatic: if you cannot prove that the enforcement would make an appeal useless, you have to comply with the DPA's decision, even while an appeal is pending.

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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.