Court of Appeal of Brussels - 2019/AR/741

Hof van Beroep - 2019/AR/74
Court:	Hof van Beroep Brussel (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 6(1) ECRM Article 100 Wet tot oprichting van de Gegevensbeschermingsautoriteit Article 90 Wet tot oprichting van de Gegevensbeschermingsautoriteit Article 90 Wet tot oprichting van de Gegevensbeschermingsautoriteit Article 95 Wet tot oprichting van de Gegevensbeschermingsautoriteit
Decided:	12.06.2019
Published:
Parties:	Belgian DPA (Gegevensbeschermingsautoriteit)
National Case Number/Name:	2019/AR/74
European Case Law Identifier:
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	Gegevensbeschermingsautoriteit (in Dutch)
Initial Contributor:	Giel Ritzen

The Market Court of the Brussels appeal Court rejected the controller’s appeal, in which he challenged the DPA’s impartiality.

English Summary

Facts

This case started as a conflict between neighbours. The controller (Y) and the data subject (X) are/were inhabitants of the same neighbourhood. The controller experienced nuisance (soot gas infiltration) because the data subject had amended his home to prevent the backlash of wood smoke. The controller repeatedly emailed the data subject about this, but the data subject did not change his behaviour. Between 22 November 2017 and 15 December 2018, the controller made three video recordings of the wood smoke, and uploaded these videos on YouTube. He also sent the videos to the data subject “to confront him with the intrusions he had caused on the private lives of his neighbours”.

On 11/01/2019, the data subject then requested the controller to remove the videos, which Y did not do. On 15/01/2019, however, the controller saw that all of his videos were deleted from YouTube, and several requests of the Belgian DPA to remove certain video recordings. On 14/02/2019, the DPA warned the controller that they could sanction him for posting the videos, and issue high fines. The controller replied that he already removed three videos. However, on 18 April, he was notified that the DPA would investigate the case.

However, before the DPA had even issued a legally binding decision, the controller lodged an appeal with the Court of Appeal because he challenged the impartiality of the DPA. He claimed, inter alia, that the DPA had put him under pressure with threat of a (large) fine, without having been informed of any substantive complaint.

Holding

First, the Court considered that the data subject had filed his complaint after he had been advised by staff of the DPA. Moreover, the Court criticised the fact that staff of the DPA can first advise data subjects regarding potential complaints, and later advise the DPA on these complaints in another capacity. However, it also mentioned that it “cannot anticipate and proactively impose on the [DPA] how it should handle administrative disputes.”

Second, the Court considered the fact that the DPA had advised the controller to remove the video, whilst, at the same time, referring to the fact that they could sanction the controller and issue high fines. The Court noted that this procedure seems to conflict with the rights of the controller since the DPA’s position does not seem to be “devoid of any appearance of partiality or bias”. However, the Court also noted that the DPA had not taken a decision on the merits. Moreover, it found that a lack of structural impartiality of the DPA at an earlier stage “does not necessarily lead to a denial of the right to a fair trial if that violation can still be rectified at a later stage”.

Third, the Court rejected the controller’s claim that, by declaring the data subject’s complaint to be admissible, it already prejudged this complaint. The Court stated that this assessment is purely formal and does not need inspection. Fourth, the Court stated that the DPA did not violate the principles of ne bis in idem and le criminal tient le civil état. Fifth, the Court rejected the controller’s claim that DPA had to file evidence prior to setting deadlines for handing in the submissions, since there is no legal basis for this argument.

Lastly, the Court stated that it cannot assess the controller’s argument that his processing of personal data had a legal basis in both Articles 6(1)(d) and 6(1)(e) GDPR, because the DPA did not make a decision yet and the Court cannot determine how the DPA should assess this argument in advance.

In conclusion, the Court rejected the controller’s appeal since the DPA’s partiality was not proven.

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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-2019/AR/741-p. 2




Y, [...], applicant, appearing in person,




against a decision of the Disputes Chamber of the DATA PROTECTION AUTHORITY, in
notified to the applicant dd. April 18, 2019,



AGAINST:

The DATA PROTECTION AUTHORITY - Disputes Chamber, represented by it

Chairman Mr. VAN DER KELEN Dirk, with offices at 1000BRUSSELS, Drukpersstraat 35,
defendant, who does not appear.


                                           †


   1. Jurisdiction of the Marktenhf:


The Court of Appeal derives its jurisdiction from an application lodged with the registry of the Court of Appeal in
Brussels on 29 April 2019 by Ytegen the DATA PROTECTION AUTHORITY (hereinafter "DPA").


In this petition, Y states that he is appealing the decision of the to the Marktenhof
Dispute Chamber of the GBA, which was notified to him by registered letter dated 18
Apr 2019.

This letter informs Y that following "a complaint" a file
against the applicant was brought before the Disputes Chamber of the GBA and there
claim periods are set with the latest date for the party's claim
believed to be grievance is determined on June 17, 2019 and which is before the conclusion of Y
determined on 17 July 2019.


On 21 May 2019, Y will receive a copy of the file from the GBA.

In accordance with article 98, 2 of the law of 3 December 2017 establishing the
Data Protection Authority (hereinafter "DPA law") the right to request to be heard by
the Disputes Chamber of the GBA.

The petition w was notified to the GBA by court order dated 9 May 2019 with
summons to appear at the hearing on 15 May 2019.


No one appeared at the hearing on 15 May 2019. The case was made for enable
adjourned to the meeting of 22 May 2019 with summons from both parties.



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            L _J, Court of Appeal Brussels-2019/AR/741- p. 3





By letter dated 15 May 2019, the GBA submitted a "judicial file" to the Marktenhof
sent. This file contains a very brief inventory (sequential number / date / signatories

/ content) where the "content" section contains only as elements: "e-mail/ reply/ letter with attachments
/ reply/ complaint". There is no actual inventory. In addition, the pieces that are in the
bundles are not numbered so that the 'sequential numbers' appearing on the inventory,
do not correspond to the pieces that are "in" the bundle.

Only Y appeared at the hearing on 22 May 2019. The case was adjourned to the hearing
of 29 May 2019 with convocation of both parties.


Only Y appeared at the hearing on 29 May 2019, the GBA was absent.

 Y has made a conclusion as well as a bundle of pieces. At the hearing on 29 May 2019
 Y was heard and the case was considered for ruling (at the latest on June 26
 2019).



    2. The facts :

X describes the statement of facts as follows:

       "In 2011, Mr. X placed special capstones on his fireplace to prevent recoil from
       prevent wood smoke in his own home.


       In March 2015, [Y] sent an informative email about wood smoke nuisance to the neighborhood group
       of which he is a part.

       In 2016, a neighborhood survey will be carried out by the [..] city council, without useful
       as a result, because the city council does not have sufficient legal remedies to act.
       In 2016, [Y] will start researching the filming of wood smoke in the dark, a

       special color spectrum analysis technique, through which wood smoke in
       the dark and color could be depicted. With this technique, in January
       2017 successfully made a first video recording which [Y] publishes on YouTube, and
       which is forwarded for information to all residents, including Dhrhet,
       public prosecutor, all Belgian public authorities, all Flemish political representatives
       and police stations.


       In February 201 a complaint is filed by [Y] against Mr. the [..] city council,
       at the public prosecutor's office in [..], but without effect to date.

       In the summer of 2017, Mr. X his chimney with a meter, without anduseful
       consequence.



       During the summer period of 2018, [Y] is confronted with
       soot gas infiltration, this will be repeated/verified by email to Mr.X(stuk9}



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             L _J,Court of Appeal Brussels - 2019/AR/741- p. 4
       --------------------------------



      Three more video recordings will be made on 22/11/2018, 14/12/2018 and 15/12/2018
      of the smoke emission from Mr. X are wood burning stove. Those video recordings are posted
      on the video channel of the Civic Platform, then the link to this video
      forwarded to Mr. X (Acts 14, 16} in order to confront him with the

      caused invasions of the privacy of [Y] and local residents.

      On 23/11/2018 an email (piece 13) with the link to 6 video recordings, of difference/
      and the emission sources forwarded to six urban and regional administrations. In
      this mail also reports on wood smoke emissions in two [..] shopping streets.

      On 24/11/2018, a bundle of 12 photos about wood smoke nuisance will be emailed to Mr.
      Y (piece 5)


      On 11/01/2019 Mr. X an email to [Y] with the request for "the YouTube videos"
      about to remove his chimney. (Document 18/1} This request will be received by [Y] on the same day
      turned down. (piece 18/2)

      On 15/01/2019 [Y] finds that the three YouTube films mentioned
      appears in pieces 14 and 16, are no longer visible on YouTube. [Y] sends on about this

      14/01/2019 an email to a friend. (Part 4)

      On 31/01/2019 [Y] receives a first scven from the Data Protection Authority
      GBA. With the request to "delete a video recording" This letter will be sent by mail
      answered. (piece 20}

      On 14/02/2019 the GBA will send a letter to [Y] (document 21/2) stating that the GBA

      is authorized to sanction with fines that can be high.

      This letter is answered by [Y] on 28/02/2019 (piece 22} with reference
      to articles of law that apply to this file, In this writing
      [Y] asks for consultation with the GBA because it concerns an unusual file.

      [Y] also reports to the GBA that three video recordings have not been made since 15/01/2019
      be visible on YouTube. It concerns the recordings whose link was forwarded to

      mr. X (pieces 14 & 16).

      On 18/04/2019 [Y] is informed (document 39} that the file
      is referred to the dispute chamber of the GBA, a conclusion agenda is drawn up
      communicated.
      There are no supporting documents in this letter.


      This letter will be answered on 23/04/2019 and also forwarded to the Court of
      Occupation (Document 26}."







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            L _J,Court of appeal Brussels-2019 AR 741-p. 5




Y states - and there is no proof to the contrary of his claim - that from January 18, 2019

has made the video recordings subject to dispute 'unavailable' to the public (see
the petition page 2).

It is also apparent from the file submitted by Y that the you-tube video has already at least
was no longer available since 14 January 2019 (see document 4-0 (4) in the file of
applicant).



    3. The legal framework of the jurisdiction of the Marktenhof:

The matter is regulated by the GBA Act.

With regard to the commencement and admissibility of a complaint or request, the articles

58 and next what follows.

       art. 58
       Anyone can submit a complaint or request in writing, dated and signed to the
       Data Protection Authority.
       The Data Protection Authority will draw up a form for this purpose.


       art. 59
       The submission of a complaint and a request is free of charge.

       art. 60
       The frontline service examines whether the complaint or request is admissible.
       A complaint is admissible when:

           • it is drawn up in one of the national languages;
           • contains a statement of the facts, as well as the necessary indications for identification
               of the processing to which it relates;

           • it falls under the competence of the Data Protection Authority.

       A request is admissible when:
           • it is drawn up in one of the national languages;
           †
               it falls under the competence of the Data Protection Authority.

       The frontline service may invite the complainant or applicant to grant his complaint or request
       lights.

       art. 61
       The decision on the admissibility of the complaint or request shall be notified to

       brought from the complainant or the applicant.
       If the frontline service decides that a complaint or request is inadmissible
       the complainant or the applicant is informed of this by a reasoned
       decision.
       art. 62




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                                                                 _J,,,,Court of Appeal Brussels-2019/AR/741- p. 9




   4. The rating :

4.1.

In this regard, the Disputes Chamber of the GBA has not yet made a legally binding decision on the merits
taken. Y, however, disputes the impartiality of the Disputes Chamber of the GBA, reason
why he has lodged an appeal with the Marktenhof.

In particular (letter of 23 April 2019 to the Disputes Chamber of the GBA and attached to the
petition) that he disputes that the Disputes Chamber of the GBA can draw up a conclusion calendar
without prior deposit of evidence and that he criticizes the fact

that he is put under pressure by correspondence from the Disputes Chamber of the GBA
threatened with a hefty fine without prior notice of
any substantive complaint.

In accordance with Article 92 of the GBA Act, the dispute chamber can be seized either by the
frontline service, in accordance with Article 62, § 1, for the handling of a complaint, either by
a concerned party who, in accordance with Articles 71 and 90, lodges an appeal against

measures by the inspection service, or by the inspection service itself after it has carried out an investigation
has concluded in accordance with Article 91 § 2.

In this regard, the "complaint" was submitted on the basis of advice sent to the complainant for that purpose
transferred by the first-line service of the GBA. So there is no spontaneous complaint, the complaint is
submitted after advice to this effect from the GBA.


In a note dated January 11, 2019, the person who believed he was offended by a publication
on a website by Y, incidentally first as a notification from the GBA that the publication of a
video clip (indicating the name and address of the person infringing the
legislation related to emissions) does not in itself constitute a violation of privacy legislation
but that "such publication[...] can only be done with permission".


The person concerned was advised to write to Y and request its removal.

The mail traffic (between the person who feels offended) that is taught by the GBA is
addressed to an e-mail address "contact" without any further description. So apparently there is in
the GBA an "address" through which contacts are made with persons who believe that they do
could once have been offended and where an employee of the frontline service of the GBA
proactively asks to fill in a complaint form.


The circumstance that certain staff members of the GBA on the one hand give advice and
conduct e-mail traffic with people who think they are offended and that these same staff members
afterwards, in the same case, could act as advisor to the Disputes Chamber, if necessary
of the GBA or in any other capacity, is certainly open to criticism and sanction. But it
Marktenhof cannot anticipate and proactively impose on the GBA in which way it or a

administrative dispute settlement.

The legislator has an adequate legal remedy for the citizen against the conduct of administrative authorities
bodies (in this case the GBA) by providing a story for the Marktenhof.



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             L _J,Court of Appeal Brussels-2019/AR/741-p. 10
        C� •·· ·•�"==----------------------------




4.2.
Before a complaint was filed in accordance with Articles 58 and following of the GBA Act
the GBA has already taken a substantive position on the merits by letter dated 31 January 2019 -

without having heard the parties -. In this position it is stated: "the GBA therefore expects
the removal of the video as such".

Since Y did not respond to this, he received a reminder on 14 February 2019 in which "another
last time the request to remove the video" was "repeated" by the GBA

In the same letter, he was informed that the GBA itself can sanction violations "with
fines which can be high in certain cases".
The file also contains an opinion from a 'data protection control adviser' of the DPA
dated on February 20, 2019 where it is advised to transfer the file to the

Dispute chamber of the GBA and the person (Y) "to stop doing this".

Once again, the Marktenhof can only conclude that substantive statements based on
the GBA - where later one of its organs, namely the Disputes Chamber as an administrative judge
will have to judge whether or not an alleged infringement has been proven - primafacie not

testify to the observance of all rights of defense (including presumption of innocence) averse
of any appearance of bias or bias. But this course of action cannot
subject to ex ante sanctions now that the Disputes Chamber of the GBA does not (yet)
decision on the merits.


A lack of objective or structural impartiality by an administrative authority means
not necessarily a violation of Article 6.1 ECHR if the decision of that government
can subsequently be reviewed by a court with full jurisdiction that itself has all
safeguards of Article 6 bie.A violation of the principle of impartiality at an earlier stage

therefore does not necessarily result in a disregard2 of the right to a fair trial if it
violation can still be rectified at a later fa•Organising an appeal by a
body that meets all the guarantees of Article 6 ECHR aims to
to enable corrections.


4.3
The complaint itself, based on Mr X, dates from March 18, 2019.

By letter dated 28 March 2019, the complainant is informed that his complaint has become admissible

declared.

An official report of 17 April 2019 shows that the Disputes Chamber of the GBA is of the opinion that
the file is ready for treatment on the merits.


1 Cass. (le k.) AR C.17.0220.N, C.17.0318.N, 9 November 2018 (H.V. / Authority for
Financial Services and Markets (FSMA for short)), DAOR 2019, 48, note ANDRIES, K.;
http://www.cass.be on date - ECtHR 26 October 1984, De Cubber/Belgium, para. 33;
ECtHR 7 November 2000, Kingsley/United Kingdom, para. 50-59; ECtHR 14 November
2000, Riepan/Austria, para. 39; ECtHR 14 November 2006, Tsfayo/United Kingdom,
overw. 41-49; ECtHR 4 March 2014, Grande Stevens et al. v. Italy, para. 138-139 and 161. Cf.
ECtHR June 11, 2009, Dubus/France. See also: ANDRIES, K., Administrative
sanction procedures: not every imperfection is insurmountable, DAOR 2019, 51-55.
2 ECtHR 15 December 2005, Kyprianou/Cyprus, para. 409.


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                                                                _J,Court of Appeal Brussels- 2019/AR/741- p. 11





By registered letter dated April 18, 2019, Y and X will be notified by the GBA of the
conclusion calendar.


Declaring a complaint admissible does not prejudge its assessment. It is a
strict control of the formalism that the file can be treated on the merits and whereby
if the Disputes Chamber wishes to handle the complaint in accordance with Article 94, 3 GBA Act without
first have an investigation carried out by the inspection service.

Drawing up a conclusion calendar in which each party has approximately one month and
whereby the defendant obtains the last installment is in accordance with the rules of rights

of defense.

The complaint is unfounded.

4.4.
Y may hold that with regard to the same facts (the alleged invasion of privacy of

X or his company [..]) has filed a complaint with the Public Prosecution Service in [..] under file number [..].

Y invokes a ne bis in idem principle. However, this principle is not at issue here
since it only prevents a double punishment from occurring for the same offense there
where no punishment has yet taken place.

However, the Marktenhof reads and understands this motif of Y as the externalization of another

general principle, namely le criminal tent ie civil en état.

The question arises whether there is (still) reason for the GBA to impose a 'punishment' on the
to prosecute a citizen when there is already (apparently) a criminal investigation concerning the same facts
is ongoing.


Now article 95 GBA law


       3 . When, after application of § 1, 7 °, the public prosecutor waives a
       criminal proceedings, an amicable settlement or mediation in criminal matters
       referred to in Article 216ter of the Code of Criminal Procedure, or when it
       Public Prosecution Service has not taken a decision within a period of six months to

       counting from the day of receipt of the file, the
       Data protection authority whether the administrative procedure should be resumed

it may be assumed that the GBA law does not affect this principle (the same principle is
can be found in Article 100 § 2 GBA Act).


However, now that the GBA is in default and only by letter of 15 May 2019 to the Marktenhof
referred to above, the Court can only make reservations
with regard to these principles.




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             L _J, Brussels Court of Appeal- 2019/AR/741-p. 12




In any case, neither the principle ne bis in idem nor the principle Je criminal tient Ie civl en

stat violated.

Y is free to leave these principles with the handling before the Disputes Chamber of the GBA
to apply.


4.5.
Y states that the Disputes Chamber of the GBA wrongly proposes a conclusion calendar
without prior submission of persuasive documents.

He does not indicate on which legal basis argument is based.


It follows from Article 98 of the GBA Act that if the Disputes Chamber decides that the file is ready for
treatment on the merits, they immediately notify the parties concerned by registered letter
lays down the provisions as stated in Article 95, § 2.

                                                                               
This article provides in particular in the aforementioned § 2: "In the cases mentioned in §n1, 4 to 6 , it states
immediately notify the parties concerned by registered letter of:

       1 °the fact that a file is pending;
         
       2 the content of the complaint, if necessary with the exception of the documents from which the
       identity of the complainant can be inferred;
       3 the possibility to consult and copy the file at the secretariat of
       the litigation chamber, if necessary with the exception of the documents from which the identity of
       the complainant can be deduced, as well as the days and hours on which he

       consultation is possible."

In this regard, the complaint (in the letter of the GBA of 18 April 2019) was described as follows: "the
complaint concerns the online publication of visual material in which the house, in particular the fireplace,
of local residents who use a wood fire, including the name and

address of the resident of the relevant home is stated".

While no concrete evidence of these facts is presented (and it would be desirable
with a view to a transparent dispute settlement with respect for the rights of defence
during the entire duration of the administrative procedure) the GBA has the legal rule

adhered to in its majority embryonic form.

The person concerned who is called upon to communicate his statement of reply has knowledge
of the content of the complaint.


The statutory provision does not state that the supporting documents must be added.

In the absence of any evidence, it would suffice for the data subject (Y) to claim the lack of
to use any evidence as a means in such a way that the complaint would be stripped of all basis and

should necessarily give rise to a decision by the Dispute Chamber of the
GBA to order the suspension of prosecution pursuant to Article 100, § 1, 2 GBA Act.




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              L _J,Court of Appeal Brussels-2019/AR/741-p. 13





Y's rights have therefore not (yet) been violated in that regard.


4.6.
If it certainly does not reflect the restraint that citizens may expect from a
institution such as the GBA, then the threat in itself (even if it is inappropriate) directed at the
citizen and where it is suggested to him that he will be able to pay high fines
be convicted by the GBA, not in violation of a legal provision.

Y can be followed where he deduces from the entire way of acting of the GBA that this

institution thus at least gives the appearance that it will not act impartially.

However, to the extent that the Disputes Chamber of the GBA has not yet reached a decision on the substance
struck before Y, this ground of appeal is also premature.

If necessary, he is free to take up the Marktenhof after the Disputes Chamber of
the GBA will have made a decision on the merits.


4.7.
Y argues that he has not infringed privacy because the processing of the data
is necessary to protect the vital interests of the data subject or of other natural persons
protecting the physical health of the local residents
as a result of the emissions that would be produced by the targeted person and/or his company(ies).
be caused. He invokes the exception of Article 6, d) of the GBA Act.

Y also invokes the exception in Article 6, e) of the same law, namely that

the processing is necessary for the performance of a task carried out in the public interest (being the
public health protection).

Y's preoccupations pertaining to the motives that would entitle him
to make the video recordings public after all, is not an issue here.
The Marktenhof ihic et nunnot gripped by a story against a 'decision' on the merits of the
Disputes Chamber of the GBA and can therefore not (in advance) judge the manner
on which the Disputes Chamber of the GBA or the dispute should resolve.


It is up to Y (as well as to the other interested parties) to, upon decision by the
Disputes Chamber of the GBA, to submit this decision to the censorship of the Marktenhof.

The same principles apply to the factual assertion that publication has an end
taken from mid-January 2019 with legal consequences thereof.











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             L _J,Court of Appeal Brussels-2019/AR/741-p. 14




   5. Decision,

The story set by Y is not well founded.


The decision of the Disputes Chamber of the GBA is a decision against which an appeal is made
is open to the Market Court in accordance with Article 108 § 1 GBA Act (see letter from the Disputes Chamber
of the GBA of 18 April 2019 last paragraph).

The appeal to the Market Court is not suspensive by operation of law (see article 108 § 1 second
paragraph GBA Act), but the exercise of this appeal, which is a right, cannot result in
that one time limit for filing a claim has already expired for the appealer. The expiration of one
period of notice might infringe the rights of defenses on the right to a fair trial
the jeopardy in such a way that the granting of new terms is in particular imperative

now that no hearing has been determined (yet) by the Disputes Chamber of the GBA.

Accordingly, the Marktenhof imposes on the GBA to determine new claim periods whereby the
first installment for Y expires at the earliest on the last day of the month commencing after the
parties to the proceedings have become aware of the current judgment.

The expended legal costs remain at the expense of Y who has advanced them.


For these reasons,

The Council,


Having regard to article 24 of the law of 15 June 1935 on the use of languages in court cases,

Declares Y's appeal to be unfounded.

Says BA's Litigation Chamber will determine new claim terms whereby the first
term for Y expires at the earliest on the last day of the month commencing after the

parties to the proceedings have become aware of the current judgment.


Order the applicant to pay the roll-over fee before the Court of Appeal (EUR 400.00),
in accordance with Article 269 §1 of the Code of Registration, Mortgage and Court Fees.


Let the legal costs incurred be borne by him.


                                      †








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            L _J, Court of Appeal Brussels-2019/AR/741-p.15




 This judgment was handed down in the open barjun2019 thorn 12


 M. BOSMANS Councilor dd. chair
 K. PITEUS Councilor
 A. WITTERS Councilor
 B. VANDERGUCHT Registrar






 B. VANDERGUCHT





 �US ,. M. BOSMANS


































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