Court of Appeal of Brussels - 2022/AR/1085: Difference between revisions

Latest revision as of 09:54, 14 December 2023

Hof van Beroep - 2022/AR/1085

Court:	Court of Appeal of Brussels (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 52 GDPR Article 57(1)(f) GDPR Article 98 WOG
Decided:	01.03.2023
Published:	07.04.2023
Parties:	Gegevensbeschermingsautoriteit Employees of Municipality Y
National Case Number/Name:	2022/AR/1085
European Case Law Identifier:
Appeal from:	AP (The Netherlands) DOS-2022-01459
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	2022/AR/1085 (in Dutch)
Initial Contributor:	Matthias Smet

An appeal lodged against a dismissal decision of the litigation chamber in which the principle of motivation, due care and the principle of reasonableness has been allegedly violated, is declared admissible but unfounded.

English Summary

Facts

on 21 April 2022, the complainants filed a complaint with the data protection authority alleging the unlawful consultation of their professional mailboxes by the DPO of defendant when investigating the leak of an internal mail to a trade union organization, ACV. The complainants state that they were not aware of this processing and that it should not have happened without their consent.

The disputes chamber has dismissed the complaint on the grounds of (i) the absence of a high risk within the meaning of Article 35.5 GDPR and (ii) the fact that the present complaint is only a side dispute that is part of a broader trade union dispute for which it is not competent .

When appealing against the decision of the litigation chamber, the complainants rely on the following defenses: (i) violation of the dismissal policy of the litigation chamber; (ii) violation of the right to participate during the pre-litigation phase and ask the court to annul the contested decision and order the data protection authority to pay the costs of the proceedings.

Holding

Regarding the motivation of the dismissal, the litigation chamber admits that due to a technical error, the contested decision once refers incorrectly to a 'technical dismissal', while it is clear that they mean a dismissal for reasons of expediency, since the litigation chamber considers a hearing on the merits undesirable and refers to 3.2.1. of the dismissal policy that deals with the dismissal for reasons of expediency. The court follows the reasoning of the DPA and dismisses this part of the complaint.

the Court of Appeal refers within this framework to an earlier judgment that the DPA, as a supervisory authority, is completely independent under Article 52 GDPR in the performance of the tasks and powers entrusted to it and, as a result, has a discretionary power to decide whether or not to dismiss a complaint.

With regard to violating the adversarial debate, the law establishing the data protection authority makes a clear distinction between the pre-litigation phase and the litigation phase, whereby the parties are only informed of the possibility to defend themselves at the start of the litigation phase (Article 98 WOG). The Court notes that the contested decision took place during the pre-litigation phase and that the complainants therefore did not need to be informed in order to defend themselves.

Based on the above reasons, the court declared the complaint admissible but unfounded and ordered the complainants to pay the costs of the proceedings.

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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.

Issue
Repertory number URreached Issued to Issued to

2023/ /pH?

Date of ruling
up up up
March 1, 2023 € € €
BUR BUR BUR |
roll number

2022/AR/1085

N°

[X1 Unregisterable

Court of Appeal

Brussels

Section Marktenhof

19 room A

Market Chamber

Judgment

Offered on

Not registerable

COVER 01-00003170576-0001-0012-01-01-1 Brussels Court of Appeal - 2022/AR/1085- p. 2

1. X1, [...],

2.X2, [...],

applicants,

represented by mr. Bryan Geerts, deputy lawyer Mr. Pascal LAHOUSSE, lawyer in [...],

in return for

The DATA PROTECTION AUTHORITY, registered in the Crossroads Bank for Enterprises

under number 0694.679.950, with registered office at Drukpersstraat 35, 1000 Brussels;

Respondent, original administrative authority hereinafter "Data Protection Authority or
GBA or Disputes Chamber";

represented by mr. Joos ROETS (...) and Timothy Roes (...), lawyers with an office

at [...].

Having regard to the procedural documents:

• the decision of 13 July 2022 of the Disputes Chamber of the GBA (hereinafter the "Contested
Decision"},
•
the petition of August 10, 2022, with which the applicants appeal against the
Contested Decision in the file number DOS-2022-01459, as notified by e-mail from
13 July 2022 to Petitioners,

• the introductory session of 27 August 2022 of the Marktenhof,

• the summary conclusions of the parties,

• the bundles deposited by the parties;

After hearing the lawyers of the parties at the public hearing of February 8, 2023 and in view of the
documents they filed, after which the case was taken into consideration for a decision on March 8, 2023.

1. Facts and Procedural Precedents

The pertinent facts can be summarized as follows. The Marktenhof repeats one below
passage from the Disputed Decision:

rPAGE 01-0 □□□ 3170578- □□□ 2-0012-01-01- �

L _J Court of Appeal Brussels- 2022/AR/1085- p. 3

On 21 March 2022, the complainants (currently applicants] submitted a complaint to the

Data Protection Authority against the defendant [in particular the Municipality of Y].

The complaint concerns the consultation of the complainants' professional mailbox by the

data protection officer of the defendant.

Both complainants are employed by the defendant."

Following the announcement by the trade union ACV Public Services that Mr

X1 would become a trade union representative from 01.04.2021, was confirmed by a member of staff of the
Management team, Mr. Z for the entire staff of the municipality of Y by mail
Replied:"HahahaApril 1 or is the club getting longer and longer..JJ

In response to this mail, the regional secretary and the national secretary of the

ACV Public Services filed a complaint with the municipality of Y.

Apparently some things were discussed at the city council of 25.05.2021 and at the college
of Mayor and Aldermen dd. 21.06.2021 and 21.09.2021.

Based on the public record, the relevant minutes were drawn up on behalf of the applicants

requested.

The municipality of Y communicated this on 08.12.2021.

From the minutes of the city council dd. 25.05.2021 it appears that the DPO has investigated a few things
11
and it is stated: the DPO decided to investigate a second privacy violation, with
in particular, the person responsible for the leak of the internal mail outside the organization (ACV). The DPO
conducted an investigation into certain mail traffic, which showed that they were probably working with a
photo of the mail and a private e-mail address to then send it to ACV. Here are none
evidence of."

The applicants complain about the fact that their professional e-mail address, resp.
X2@Y.be and X1@Y.be and their inbox has been individually checked by the municipality and/or
DPO without their being aware of this or having given their consent.

By decision of 13 July 2022, the Litigation Chamber decided to close the file, with the
following justification (SECTION A.5 of the GBA):

"3. Based on the elements in the file that are known to the Litigation Chamber and on the basis
of the powers conferred on it by the legislator pursuant to Article 95, §1 WOG

assigned, the Litigation Chamber decides on the further follow-up of the file; in this case
the Disputes Chamber will proceed to dismiss the complaint in accordance with Article 95, §1,
32 WOG, based on the following justification.

r PAGE □1- □□□□ 3170578-00 □3-0012- □1- □1-�

LCourt of Appeal Brus-e2022/AR/1085- p. 4

4. In the event of a dismissal, the Disputes Chamber must investigate and

motivate:

- whether there is insufficient prospect of a conviction, after which a technical dismissal follows;

- whether a successful conviction would be technically feasible, but on grounds, up to it
general interest, a (further) prosecution is undesirable, after which a policy dismissal

follows.

In the event that more than one soil is disposed of, depot soils (resp.
technical dismissal and policy dismissal) must be dealt with in order of importance.

5. In the present case, the Disputes Chamber considers it undesirable to take further action

to the file and decide to proceed with a technical dismissal on the basis of the following
two grounds.

6.First of all, the Dispute Chamber, in accordance with tighaarsepo policy, will review the nth edend e

complaint contains grievances with a major social and/or personal impact. In order
To evaluate the foregoing, the Litigation Chamber bases itself on the criteria set by the European

data protection authorities handle processing with a "high risk" in the sense
of Article 35 GDPR.

7. In the case, the Disputes Chamber has determined that the processing in question is subject to the complaint

submitted by the complainant prima facie cannot be grouped into one
of the cases listed in Article 35.5 GDPR.

8. As a second motive, the Disputes Chamber rules that this complaint is a side dispute that

is part of a broader trade union dispute for which it has no jurisdiction. Based on the documents
From the file, the Disputes Chamber notes that there is already a history of incidents and

points of contention between the parties in this case. In the supporting documents

transferred, the Disputes Chamber reads several times how intimidation is discussed
in the context of the tensions between the two sides as well as the need for "de-escalation and the

normalize social relations again". Insofar as necessary, the
Disputes also about the autonomous role of the Data Protection Officer

regarding investigations of personal data breaches. In the
context of this broader dispute, the Litigation Chamber is of the opinion that its intervention is not

is strictly necessary and that it is more opportune for the parties to extend it if desired

to bring a trade union dispute before the competent court as the competent court
on all elements of this dispute.

9. As a second motive, the Litigation Chamber finds that the complainant refers to the start-up

of procedures with the competent police services, the Governor and the Minister of
Home Affairs to denounce the alleged violation of the eA VG. Mindful

|[” PAGE 01-000D317D5?a-0004-0012-Dl-01-4 | Court of Appeal Brus-e2022/AR/1085 -p.5

its limited resources, the Litigation Chamber does not have a priority to intervene

carry out administrative procedures or procedures in parallel with other administrative procedures
procedures, as a result of which it is decided not to deal with the substance of the present case."

This decision was communicated by e-mail dd. notified to the applicants (complainants) on 13 June 2022.

By petition dd. On August 10, 2022, the applicants (complainants) submitted the present story to the

Markthof.

II. Object of the claims

The applicants' appeal seeks:

To annul the contested decision;
To order the GBA to pay the costs of the proceedings, including 1,800 euros

procedural indemnity and 22 euro costs Budget Fund;

The GBA asks the Marktenhof:

■ Declare the applicants' claim unfounded;

■ In any event, order the applicants to pay the costs of the proceedings, including the

indexed basic amount of the procedural indemnity, estimated at 1,800 euros.

III. Pleas and defenses put forward by the parties

Pleas invoked by the applicants

The contested decision violates the principles of motivation, due care and reasonableness
since the Disputes Chamber in the contested decision the real motives of

did not investigate the applicants.

The contested decision violates the rights of defense and must therefore be quashed.

PAGE 01-000D317057Ö-0005-0012-01-01-U Brussels Court of Appeal - 2022/AR/1085 - p. 6

Defenses invoked by the GBA

First defense: The dismissal decision is based on a ground for dismissal supported by
pertinent and compelling motives - This sufficient reasoning is contained in the contested decision itself

included - The dismissal decision is in accordance with the 'Dismissal Policy of the Litigation Chamber' (defence
against the applicants' first plea)

Second defense: the applicants could not assert a right to contradict during the

pre-litigation phase (defence against the applicants' second plea)

Prior to

The story was timely filed by the applicants. There is no dispute about that.

IV. Assessment of the resources invoked by the applicants and the GBA

The contested decision violates the principles of motivation, due care and reasonableness

since the Disputes Chamber in the contested decision the real motives of
did not investigate the applicants.

In the context of their first plea, the applicants claim that the contested decision contains the statement of reasons,
violates the principles of due care and reasonableness by the "real motives" of

not to investigate the applicants. The applicants argue that it is not apparent from the contested decision
whether the Disputes Chamber has investigated "the grounds of the complaint". Moreover, they argue

that the Litigation Chamber should have addressed the fundamental rights that they believe are at stake.
Finally, the applicants argue that they are only proposing the behavior of the official

wanted to see a data protection investigation and not a "wider trade union dispute".

In summary, the GBA argues that:

Although the contested decision does so only once (by way of an apparent substantive

mistake) calls a 'technical dismissal', it is nevertheless clear that it becomes a policy dismissal
meant. Firstly, the Disputes Chamber considers a treatment on the merits "undesirable", i.e.

not opportune, rather than technically impossible. Secondly, the contested
decision to section 3.2.1, page 9 of the Dismissal Policy, which deals with the policy dismissal.

Finally, the contested decision justifies the dismissal by pointing out that the complaint
corresponds to several of the situations in which a policy dismissal is declared according to the Dismissal Policy

likely. There can therefore be no reasonable doubt that the Litigation Chamber
has been shelved for policy reasons.

® the contested decision supports this dismissal with pertinence and capacity
motives, each of which is sufficient in itself to justify the decision. According to it

-
| PAGE oi-ODOoaivosTa-oooL-ooia-oi-oi-H "]Court of Appeal Brus- 2022/AR/1085- p.7

Dispute Policy can dismiss the Disputes Chamber for expedient reasons when the

social and/or personal impact of the processing to which the case relates
has, in her opinion, is limited or if, in her opinion, a treatment on the merits is not

would be efficient. The Disputes Chamber motivates the dismissal in this case with the assessment that
both the required impact o/s the required efficiency is missing.

According to the applicants, there is a denial of justice by the Disputes Chamber. According to Article 5
Judicial Code, there is a denial of justice when the judge refuses to administer justice under

any pretext, even of the silence, obscurity or incompleteness of the law. The
However, the Disputes Chamber is not a court, but an administrative dispute resolution body and the law of 3

December 2017, the Disputes Chamber of the GBA does grant the authority to lodge complaints

without closing.

The Marktenhof has previously ruled that the GBA as a supervisory authority,
in accordance with Art. 52 GDPR, is completely independent in the performance of the tasks and

powers assigned to it in accordance with the GDPR, and that the degree assessment
in which it is appropriate to take cognizance of the content of the complaint at discretion

competence, which the authority exercises freely and as it sees fit.

This also means that the GBA has the power in principle to dismiss complaints, such as
confirmed by art. 57.1, f)GDPR, which states that supervisory authorities "shall not review the content

of the complaint "should only investigate" to the extent appropriate.

However, the Marktenhof supervises compliance with the adequate justification of the
dismissal decision.

In doing so, the Marktenhof first checks whether the GBA has decided to dismiss it because it has

concludes on the basis of an investigation that there is insufficient prospect of a conviction
(a so-called technical dismissal) or rather that a successful conviction, albeit technical

feasible, but because of a lack of social and/or personal impact
(further) prosecution is undesirable (a so-called policy dismissal).

T he M arket h o w a t w a ck both respect the orm e le and the material obligation to state reasons.

In the present case, the Disputes Chamber argues in margin number 5 of the Contested Decision
wrong that it would be a technical dismissal. This is an obvious material error

as the GBA states in conclusions and at the hearing. The Marktenhof notes that certain
cannot consider the formulations in the Contested Decision to be consistent (e.g.,

marginal number 5 with the wrongful mention of a technical dismissal, the mention of (a
complaint from) external members of the trade union organization who are not involved in the present case at all

are and the mention of a 'second' motive in marginal 9 when in reality it is a third
motive), yet the decision of the Litigation Chamber implies sufficiently clear and

PAGE 01-00003170576-0007-0012-01-01-4 Court of Appeal Brussels- 2022/AR/1085 - p. 8

coherent that there is a policy dismissal. The Disputes Chamber gives input for that policy dismissal

essentially three motifs, the first motif is examined below.

In margin number 7 of the Contested Decision, the GBA states: in this case, the Disputes Chamber establishes that

the processing concerned, which is the subject of the complaint lodged by the complainant, prima facie
cannot be placed in one of the cases listed in Article 35.3 GDPR.

This brief explanation will suffice:

the Litigation Chamber may conduct a prima facie investigation without adhering to 'refusal of justice'

to sin;
although it concerns a fundamental right, the Litigation Chamber may set priorities;

the Litigation Chamber may determine that certain allegations have not been conclusively proven

be made in the context of a complaint.
® The Disputes Chamber can assess the personal impact of the circumstances of the complaint on the

fundamental rights and freedoms of the data subjects against the efficiency of
its action, in order to decide whether it considers it appropriate to deal with the complaint in depth.

In this respect, the Disputes Chamber could reasonably determine that the complaint, which relates to

one incident in which only two professional mailboxes were consulted, does not match the
situations listed in Article 35.3 GDPR, all of which are characterized by the

'large-scale' or 'systematic' nature of the data processing.

The second motive invoked by the Litigation Chamber is superfluous in view of the foregoing
and is incidentally not sufficiently pertinent since, as already stated, the trade union is by no means

is a party to the present dispute, irrespective of whether or not the applicants themselves report this
made of an alleged trade union dispute.

The third motive is (again superfluously according to the Marktenhof) mentioned in marginal number
9 of the Contested Decision:

9. As a second motive [sic], the Disputes Chamber finds that the complainant refers to the
initiating procedures with the competent police services, the Governor and the Minister of

Home Affairs to denounce the alleged violation of the GDPR. Mindful
its limited resources, the Litigation Chamber has not made it a priority to intervene

conduct administrative procedures or procedures in parallel with other administrative ones
procedures, as a result of which it decides not to deal with the substance of this case.”

The Marktenhof considers that this only shows that the GBA tries to work efficiently and that the

door to the GBA is not definitively closed: nothing prevents the applicants from incidents
occur in which a DPO is demonstrably involved, if necessary again (op
simple and virtually form-free) complaint to the GBA.

r~ PAGE 01-00003170570-0000-0012-01-01-4” ] Court of Appeal Brus-e2022/AR/1085- p.9

The applicants' first plea is unfounded.

The contested decision violates the rights of defense and should therefore be
destroyed.

According to the applicants, the Disputes Chamber had a contradictory debate before dismissing the case
have to keep. The Disputes Chamber should also have provided them with any documents that were passed on

the controller and/or the DPO had been submitted to the Litigation Chamber.

This remedy fails in law, as the GBA rightly points out in its conclusions.

The WOG makes a clear distinction between the contentious phase (subsection 3) and the

pre-litigation phase before the Litigation Chamber (subsection 2). The parties will only be notified

of the possibility to defend oneself and the possibility to submit documents to
start of the contentious phase (Article 98 WOG) (own underlining):

Preco ntious phase:

"Subsection 2. -Procedure vggrgfgggnd ggn the decisions grgnd

Art. 94. Once apprehended, the Litigation Chamber can:
1 ° request an investigation from the inspection service in accordance with Article 63, 2 ° ;

2° request the inspection service to carry out an additional investigation when the

litigation chamber is seized in accordance with article 92, 3°;
3° deal with the complaint without having contacted the inspection service of its own accord.

Art. 95. §1. The litigation grneg decides oyey deopyglgjng it gives ggn the dgssier and is

beygegcf
l°to decide if the dgssier is readyyggr behgndejing to grgnde;

2° propose a settlement;
3° identify the complaint;

4° to formulate warnings;
5° to order that the data subject's requests to exercise his rights be complied with

to practice;

6° to order that the data subject be informed of the security problem;
7° transfer the file to the prosecutor's office of the Crown Prosecutor in Brussels, who will

informs you of the follow-up given to the file;
8° decide on a case-by-case basis to publish its decisions on the website of the

Data Protection Authority.
§ 2. In the cases referred to in § 1, 4° to 6°, it shall immediately inform the parties concerned by

registered letter of:
1° the fact that a file is pending;

F page E: Ol-OODO317O5?a-ODO i-O[]12-Ol-01-4" -| Hofva berepBrussl-2022/R/185 -p.10

2°the content of the complaint, if applicable, with the exception of the documents from which
a ttitofthe idienerofthecomplaintcanbederived;

3°possibility to consult and copy the file at the secrtariat
of the history room, if necessary, let me know about the pieces where id eidenttit

from the i dinner of the complaint can be waived, as well as from the day and hours on which
di r adplg ig m ogelj i.

§3.[..]

Art96. [.]

Art97. [.]
CONENTIOUS FSE:

"U nder felig 3 .-Berggdslggjg and desslssjg tn bottom

Art98. W gnneeg dege schjlnkgm erbesjitdgt the file ere disvgor behgndelig ten

grgnde, st lzjjonverwijd deb etokken ggrien g egange trecognized shipment i knowledge of the
Provisions such as ver eldina rjef95, 2,as well as of:

1° the ability to electronically accept alecom m uniation to tr nt the business;
2° the ability to collect their means of payment to be credited for hearing

w re n;
3° the possibility to add to the file all documents that deem useful.

A r.99.The history room invites the parties to file their defense i deln i.

A r.100. §1.The Litigation Chamberhastheauthorityto:

posit 1° a complaint;
2° order the extradition;

3° the suspension ori g of the pronouncement orders ;
4° to move forward in unison;

5° warnings and reprimands;
[..

The W OG therefore distinguishes:

and erijs, the fse that precedes and treat lng tn soil a n tjen sd e which the

Litigation Chamber itself can decide w hich effect it gives to the complaint ('recon tntious
phase', and

another, the phase that begins w ith the decision that the file "is ready for a
treat the substance" and decide with an admin iistative

("unconscious phase")

PAG E □l-000317D57iD01D- D12-1-1-4 Brussels Court of Appeal - 2022/AR/1085 - p. 11

The Contested Decision took place during the pre-litigation phase. From the possessing section
of Contested Decision, it appears that the Disputes Chamber has dismissed the complaint on

pursuant to Article 95, §1, 3°, WOG.

The second plea is unfounded.

Court costs

The applicants are the unsuccessful party and are therefore obliged to pay the costs
to estimate the legal costs of the GBA on the basis of legal costs for not in money

assessable disputes, being EUR 1,800.

FOR THESE REASONS,

THE COUNCIL,

Responding to contradiction;

Having regard to Article 24 of the Law of 15 June 1935 on the use of languages in judicial matters;

Explains the redress brought by plaintiffs against the Contested Decision of the GBA
admissible but unfounded.

Orders the applicants to pay the court costs of the GBA settled at EUR 1,800

legal fees.

Condemns the applicants, in accordance with Article 269/2 of the Code of Registration,

mortgage and court fees for payment to the Belgian State, FODFinancien, of the roll dues
appeal in the amount of 400.00 euros and until the final payment of the contribution of

22 euros for the Budgetary Fund.

|R PAGE 01-0000317057fl-0011~0012~01-01- 7"”| l , Brussels Court of Appeal - 2022/AR/1085 - p.12

e
Thus sentenced and pronounced in public civil court of the 19 chamber A of the
Court of Appeal in Brussels on March 1, 2023

where were present:

Mrs. A-M. WITTERS, Councilor dd. Chair,

Mr. F. FOGLI, Councillor,
Mr. 0. DUGARDYN,
Deputy Councillor,
Mr. S. DE C00MAN, Registrar,

S. Dt C00MAN O. ÖUGARDYi

iGLI . WHITTERS

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