APD/GBA (Belgium) - 73/2024

APD/GBA - 73/2024
Authority:	APD/GBA (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 6 GDPR
Type:	Complaint
Outcome:	Rejected
Started:
Decided:	13.05.2024
Published:
Fine:	n/a
Parties:	n/a
National Case Number/Name:	73/2024
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	Dutch
Original Source:	APD/GBA (in NL)
Initial Contributor:	nzm

The DPA considered that its intervention in a case regarding the installation of surveillance cameras in the common areas of a co-owned building was not strictly necessary, as it was an ancillary to a broader dispute. Therefore, the DPA dismissed the case.

English Summary

Facts

The data subject owned a flat and was a member of the co-owners’ association. Following multiple incidents, several co-owners requested the installation of a security system with cameras in the entrance hall and garage. In January 2018, a general meeting was held and the installation was unanimously approved, not including the abstention of some owners, including the data subject. In 2018, the cameras were installed, and sticker icons were placed to indicate that the building was surveilled. The data subject allegedly removed these stickers because they were bilingual and they claimed that this was not allowed. The data subject also allegedly cut several signal cables and threatened the installer of the cameras.

In July 2019, the data allegedly rendered one of the cameras unusable using an alcohol marker. Additionally, the data subject filed a complaint with the Belgian DPA (‘APD’) against the installer of the cameras and the representative of the co-owners’ association for installing the cameras without the data subject’s consent, and claiming that the images were kept in an unknown location for an unknown duration.

The aforementioned incident and the complaint made the representative disable the cameras. Therefore, since July 2019, the cameras had allegedly stopped filming. The representative also argued that the decision to install cameras was taken by a vote and not individually. Additionally, there was a 4-month appeal period against the decision. The data subject did not challenge the decision, which made it binding under Article 557-9 of the Belgian Civil Code.

In July 2020, August 2020, May 2021, December 2022 and February 2022, the data subject inquired about the progress of the case and urged that the complaint be dealt with promptly.

Holding

First, the DPA explained that due to a lack of shifts in the staffing of the Disputes Chamber of the DPA, insufficient progress was made on this case. Due to the complexity of the case, the APD decided not to include this case in the "Tabula Rasa" of May 2023, a document in which it dismissed a large number of cases at once.

Second, the DPA found that the complaint was an ancillary dispute to a broader dispute for which other courts, tribunals or jurisdictions have jurisdiction, pursuant to the APD’s dismissal policy. Indeed, the dispute concerned, in particular, neighbor quarrels, vandalism, threats and language used in camera pictograms.

Therefore, the APD considered that its intervention in the dispute was not strictly necessary nor did it have visibility over most elements of the dispute. Therefore, the APD dismissed the case.

Comment

The justification of the Belgian DPA in this case is quite peculiar as they invoke a lack of staff, but they also mention the 'Tabula Rasa' they did in May 2023 during which they dismissed a large amount of cases all at once.

This practice does not seem in line with the recent Schufa judgement. Indeed, the CJEU stressed that DPAs are required to deal with data subject complaints with all due diligence, and must react appropriately in order to remedy GDPR violations. The DPAs maintain a margin of discretion as to the choice of the appropriate means. Therefore, there is a choice of appropriate means, not a choice of (in)action.

In the present case, the DPA dismissed the complaint considering that its intervention was not strictly necessary as the complaint was an ancillary to a broader dispute. Nonetheless, the "Tabula Rasa" applied by the Belgian DPA does not seem to comply with this requirement of dealing with complaints with all due diligence.

This case also illustrates the difficulties complainants have to obtain a response from the DPA: the data subject in the present case asked for updates on their complaint five times in the span of two years. The complaint was lodged in July 2019, and the decision was published in May 2024, only for it to be a dismissal of the complaint.

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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.

1/9



                                                                          Dispute Chamber


                                         Decision on the merits 73/2024 of May 13, 2024


File number: DOS-2019-02880


Subject: a complaint against the installation and use of surveillance cameras in the

common parts of an apartment block



The Disputes Chamber of the Data Protection Authority, composed 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 regarding the free movement of such data and to the revocation of

Directive 95/46/EC (General Data Protection Regulation), hereinafter “GDPR”;

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

hereinafter “WOG”;


In view of the internal rules of order, as approved by the House of Representatives

Representatives on December 20, 2018 and published in the Belgian Official Gazette on
January 15, 2019;


Considering the documents in the file;



Has made the following decision regarding:


Complainant: X, hereinafter “the complainant”;



Defendant 1: Y1, hereinafter “defendant 1”;


Defendant 2: Y2, hereinafter “defendant 2”, hereinafter jointly referred to as “the defendants”. Decision on the merits 73/2024 - 2/9


I. Facts and procedure


 1. The subject of the complaint concerns the installation and use of surveillance cameras in

      the common parts of an apartment block.

 2. On 21 May 2019, the complainant filed a complaint with the Data Protection Authority against

      defendant 2.

               The complainant is the owner of an apartment and a member of the association of fellow

               owners. In the common areas of the building where the

               apartment is part of, cameras were installed by defendant 1

               without the complainant having given individual consent. Both the

               defendant 1 (installer) and defendant 2 (syndic) would have access
               to the images. These images are kept in an unknown location for a

               unknown duration.


 3. On 12 June 2019, the complaint was declared admissible by the First Line Service on the basis of

      Articles 58 and 60 WOG and the complaint is based on Article 62, § 1 WOG

      transferred to the Disputes Chamber.

 4. On 26 June 2019, the Disputes Chamber decided on the basis of Article 95, § 1, 1° and Article 98 WOG

      that the file is ready for substantive treatment.

 5. The parties involved will be notified by registered mail on June 28, 2019

      of the provisions stated in Article 95, § 2, as well as those in Article 98WOG. Also

      they are informed of the deadlines for their payment on the basis of Article 99 of the WOG

      to submit defenses.

      The deadline for receipt of the defendants' response was set

      recorded on July 29, 2019, this for the conclusion of the complainant's reply on 29

      August 2019 and this for the conclusion of the defendants' reply on September 30
      2019.


 6. On July 17, 2019, the Disputes Chamber received the response statement

      defendant 1.

               Defendant 1 pointed out to the Disputes Chamber that certain documents

               were included in the inventory, were not attached to the registered item

               shipment. She still asked to receive these documents.

               Defendant 1 stated that the installation was installed on behalf of the

               defendant 2, who represented the association of co-owners. She

               did not consider itself responsible for the processing of the images of the

               cameras. She did not know whether these cameras were recording and there would be no maintenance or decision on the merits 73/2024 - 3/9


              be a service contract. Nor did she have an account to access the images

              consult.


              However, Defendant 1 also cited that the Complainant had several signal cables
              damaged, had removed the stickers regarding the camera surveillance and the

              defendant 1 had threatened. She wished to be compensated for the

              damages suffered.


7. On July 22, 2019, defendant 2 also pointed out to the Disputes Chamber that certain

     documents were missing in the registered letter of June 28, 2019.

8. On July 29, 2019, the Disputes Chamber received the notice of intervention from the

     representative of the complainant. On August 22, the complainant entered the Litigation Chamber

     pointed out that he had not received any conclusions from the defendant 2 and that the

     Defendant 1's allegations were “completely irrelevant”.

9. Due to the absence of some documents in the file that was transferred to the

     parties on June 28, 2019, the Disputes Chamber decided on September 18, 2019 to

     set conclusion deadlines so that the parties could rely on all documents
     File.


10. On September 19, 2019, the parties involved will be notified again by registered mail

     informed of the provisions stated in article 95, § 2, as well as those in article

     98WOG. They are also informed of the deadlines on the basis of Article 99WOG
     to submit their defenses.


     The deadline for receipt of the defendants' response was set

     recorded on October 18, 2019, this for the complainant's response

     November 4, 2019 and this for the defendants' response on 18
     November 2019.


11. On September 19, 2019, defendant 1 replied that he understood the intention of writing

     earlier that day, he did not understand that the complainant no longer lived at the address in question and that he

     some requested compensation for “our costs incurred and reckless, exasperating clause”. Op
     On September 23, 2019, defendant 1 also stated that the address of his company was not

     was correct.


   12. On October 17, 2019, the Disputes Chamber will receive the response statement
      defendant 2 with regard to the findings relating to the subject matter of the

      complaint.


              Defendant 2 stated that the complainant had an apartment, a car box and a

              owned a parking space in the building, but the complainant did not live in it
              building. Decision on the merits 73/2024 - 4/9


Following several incidents due to “mutual feuds”,

the request came from several co-owners for a safety system with

install cameras in the entrance hall and garages.

The placement of the cameras was decided at the General Meeting of

submitted on January 22, 2018, where the placement was unanimously approved, the

abstention of some owners, including the complainant, is not taken into account. This

approval was demonstrated by respondent 2 with a copy of the report

of this General Meeting.

The respondent 2 clarified that such decisions within the association

of co-owners were taken by vote and therefore not

individually, which the complainant raised as a counterargument. In addition, the complainant would

4 months appeal period against a decision of the association of fellow

owners if he did not agree with the decision. The complainant had

the decision to install the cameras was not challenged, which meant that the
decision according to Article 577-9 §2 of the Dutch Civil Code would have become final and binding.


At the end of 2018, the cameras were installed and the sticker icons became

placed. The complainant allegedly removed these stickers several times because

they would be bilingual, which according to the complainant was not allowed. The defendant 2 stated

that the plaintiff also allegedly cut several signal cables and the defendant
1 would have threatened.


The cameras would not have been in continuous use and would have been in use for some time

be out of action for months. The images would be automatically deleted after 48 hours

and defendant 2 had never consulted the images. The

Defendant 2 was convinced in this respect that it was in compliance with the applicable regulations
legislation regarding cameras.


In July 2019, the complainant allegedly made a screen on one of the cameras unusable

using an alcohol marker. Together with the complaint, this incident caused the

Defendant 2 decide to deactivate the cameras. Since July 10, 2019

the cameras would no longer have captured images.

In order to comply, defendant 2 filed a report on October 16, 2019

removed the cameras from the local police, despite the fact that they already have some

were out of action for months. Defendant 2 showed this to him with a copy of it

the declaration. Decision on the merits 73/2024 - 5/9


              Defendant 2 had final removal or reinstatement

              of the cameras on the agenda of the General Meeting of January 2020

              placed.

13. On November 1, 2019, the Disputes Chamber received the complainant's response.


              The complainant noted that the respondent 2 unequivocally admitted that the applicable

              legislation was violated by the placement and use of the cameras,

              whereupon the complainant requested that an administrative sanction be imposed on the
              defendant 2. The complainant read this admission of defendant 2 in the following

              section:


              “If the general meeting decides at that time to return the cameras
              into effect, then [defendant 2] will absolutely monitor and take care of it

              to ensure that this is done entirely in accordance with the applicable regulations

              relevant legislation”.


              Needless to say, the complainant disputed the defendant's factual arguments 2
              which he considered to be irrelevant.


                  • The complainant was not officially registered at the address in question, but

                      stayed there regularly and did indeed live at the address at the time

                      of the placement of the cameras.

                  • Regarding the alleged feud between owners, it would only be allegations

                      of 1 co-owner, who would have been labeled 2 by the defendant

                      like a scammer. The complainant also alleged that this co-owner

                      would also have had access to the images taken.

                  • Regarding the approval of the cameras at the general meeting of

                      January 22, 2018, the complainant was of the opinion that the approval was only a

                      a decision in principle, as quotations still had to be submitted

                      applied for and subsequently approved. These quotations were never fulfilled
                      presented to residents. During the general meeting of January 21

                      In 2019, the complainant had made a comment about this, which became

                      demonstrated with a copy of the report of the general in question

                      meeting:

                      “[the complainant] indicates that the installation of the camera is unlawful for her

                      given the lack of basis, especially the individual one

                      permission from each owner separately.[defendant]adds that

                      only the decision to install the cameras was made on the previous one

                      general meeting and not the modalities. Decision on the merits 73/2024 - 6/9


                       [the defendant] adds that the decision to install cameras

                       and putting into service were carried out before the entry into force of the

                       new GDPR legislation. [the defendant] will obtain information on how to do this

                       can be sorted out. [the defendant] will inform the internal DPO

                       officer.”

                       The complainant would not have been informed of the DPO's findings, nor

                       residents would have been informed of the implementation

                       of the cameras. The modalities of the placement were also not disclosed

                       recorded.

                   • The complainant alleged that an icon was not placed on every camera

                       and that these stickers were only removed once in the presence of the

                       defendant 1 because of non-compliance with the legislation. Complainant

                       also denied damaging any cables or having the defendant 1

                       threatened.

                   • The complainant also questioned the non-functioning of the cameras

                       as the diodes on the cameras still function and one more

                       monthly subscription is charged to Proximus.

                   • The complainant stated that the fact that the defendant 2 knew that he was with a

                       alcohol marker had made the screen of a camera unusable

                       that the camera still worked and that the images were indeed

                       were viewed.

               Finally, the complainant asked who was responsible for the actual processing

               was responsible for these cameras, which was also a requirement of the law of 21

               March 2007 regulating the installation and use of surveillance cameras 1

               (hereinafter: the camera law).

 14. On November 15, 2019, the Disputes Chamber received the response statement

       defendant 2.


               Regarding the feud among the co-owners, 3 co-owners have already filed a complaint

               filed with the police against the complainant. Defendant 2 demonstrated this
               with 3 PVs from the police.


               Regarding the quotations for the decision to install the cameras during the

               general meeting of January 22, 2018, the fact that this has not yet occurred

               were available at that meeting are irrelevant as this is only the

               financial effect of the decision.


1
 Official Gazette 31 May 2007. Decision on the merits 73/2024 - 7/9


               The defendant established 2 regarding the removal of the sticker pictograms

               that the complainant admitted this for 1 time. However, the respondent 2 alleged that the

               complainant had done this several times.

               Regarding cutting the signal cables, removing the

               sticker icons and the threats to the defendant 1, the

               defendant 2 to demonstrate this with e-mail correspondence between defendant 1 and

               defendant 2. In this communication, defendant 1 confirmed the facts as
               proposed by the defendant 2.


               With regard to a co-owner who would have had access to the images, the

               Defendant 2 firmly stated that this was not the case.

               Regarding the vandalism on a camera screen, the defendant noted 2

               thatthecomplaint.sinceJuly10,2019,thecamerasnomoreimages

               to withdraw.

               Finally, the defendant requested to take the one-off into account

               mistake and the absence of any intent with regard to the recognized infringement

               the camera legislation. Defendant 2 also asked that this be taken into account
               “the people who were filmed by the cameras all agree

               had stated with the cameras and their location […]”. To demonstrate this

               Respondent 2 referred to the approval for the installation of the cameras

               in the report of the general meeting of January 22, 2018.

  15. On July 22, 2020, August 16, 2020, May 25, 2021, December 14, 2022, December 19, 2022 and

      On February 6, 2024, the complainant inquired about the progress of the file and insisted

      for the complaint to be handled quickly so that it could be closed.



II. Justification

 16. First of all, the Disputes Chamber would like to note that the current dispute dates from 2019.

       Due to a lack of and shifts in staffing of the

       Dispute Chamber was closed after the defendant's response had been submitted

       insufficient progress has been made on this file, despite the various reminders

       of the complainant. Considering the procedure on the merits, in which the parties already had conclusions

       exchanged and the prima facie complexity of this file, it was decided to
       not to include the complaint in the so-called Tabula Rasa exercise of the Disputes Chamber

       of May 2023, in which a large number of cases were dismissed on a one-off basis, with a view to

       the management of backlogs.

 17. The recent recruitment of staff within the Disputes Chamber has allowed this

       file should still be treated as a priority with the necessary attention. Decision on the merits 73/2024 - 8/9


 18. On the basis of the elements in the file that are known to the Disputes Chamber, and on the basis

       of the powers granted to it by the legislator on the basis of Article 100, § 1 WOG

       assigned, the Disputes Chamber will decide on the further follow-up of the file; in this case

       the Disputes Chamber will dismiss the complaint in accordance with Article 100,

       § 1, 1° WOG, based on the following justification.

 19. The Disputes Chamber establishes in its conclusions that the complaint submitted to it

       is a secondary dispute to a broader dispute for which other courts or tribunals,

       administrative courts or authorities are competent. In the conclusions the

       After all, the Disputes Chamber has a dispute regarding:

            a. Neighborhood disputes – defendant 2 speaks of “mutual feuds” and in the documents 3

                Police reports can be found in which 3 residents testify

                against the complainant. The complainant then stated that it only concerned 1 co-resident

                and that he would have been labeled as a scammer by defendant 2.


            b. Vandalism – the defendants claim that the signal cables belong to the cameras
                cut by the complainant, which the latter denies. A camera screen

                was also disabled using an alcohol marker, which the complainant does not deny.


            c. Threats – the defendants claim that the complainant has the defendant 1

                threatened, which the complainant denies.

            d. Decision-making procedure within the general meeting of the association

                co-owners – the defendant 2 states that the decision is for placing the

                cameras were installed in accordance with the legislation, even though the complainant voted against. The

                the complainant disputes this and states that he never gave permission for the installation

                of the cameras.

            e. Compensation for damage suffered – the defendant 1 wishes to be compensated for

                the damage suffered, although this does not make it clear what exactly the damage is.


            f. Language associated with the camera icons – these icons

                were, according to the defendants, removed several times because of the
                bilingualism of the icons. The complainant confirms that he has once

                has removed pictograms because they would not comply with the legislation

                are.


       The Disputes Chamber judges that its intervention in this dispute is not strictly necessary

       and that, moreover, it has neither insight nor authority over most elements in it
       the dispute. In addition, there is an intervention by the Disputes Chamber in the specific case

       circumstances of this file are not the most suitable. After all, the Disputes Chamber can



2Cf. criterion B.3 in the dismissal policy of the Disputes Chamber.