Court of Appeal of Brussels - 2021/AR/320

Court of Appeal of Brussels - 2021/AR/320
Court:	Court of Appeal of Brussels (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 5(1)(a) GDPR Article 6 GDPR Article 12 GDPR Article 13 GDPR Article 14 GDPR Article 31 GDPR
Decided:	07.07.2021
Published:	07.07.2021
Parties:	Family service ADP/GBA
National Case Number/Name:	2021/AR/320
European Case Law Identifier:
Appeal from:	ADP/GBA 04/2021
Appeal to:
Original Language(s):	Dutch
Original Source:	Hof van Beroep Brussel 07082021 (in Dutch)
Initial Contributor:	Matthias Smet

The Brussels Court of Appeal ruled the appeal and all eight pleas of the defendant are unfounded and states that the appeal to the Market Court does not offer a second chance to the party against whom the complaint is directed. It also remind the parties that it is not for the Court of Appeal to repeat the fact-finding process in order to substitute itself for a national DPA and that

English Summary

Facts

The Belgian Data Protection Authority received a complaint from a mother who had filled in a reply card in order to receive a gift box from the family service (defendant). The personal data of the mother (and her child) was disclosed to several third parties without her knowing. The mother argued that the disclosure had taken place in a non-transparent manner, in particular to companies that were not mentioned in the privacy policy of defendant. As a consequence mother asked the defendant to delete her personal data from its databases and to cease the disclosure of her personal data to third parties.

The mother filed a complaint with the Belgian DPA which initiated an investigation at the premises of the defendant and discovered several violations against the GDPR. The ligitation chamber imposed an administrative fine of 50.000 EUR in its original decision.

The family service appealed this decision on following grounds: - infringement of the rights of the defence; - infringement of the principle of impartiality; - excess of competence; - failure to state reasons; - breach of the principle of proportionality;

Holding

The defendant relied on no less than eight pleas in law to support the appeal. However, the court held all eight pleas to be unfounded;

As a consequence, the Brussels Court of Appeal declares the appeal admissible but unfounded.

The key take-aways of the decision of the Brussels Court of Appeal are:

• an appeal against a decision of the litigation chamber does not offer a second chance to the party against whom the complaint is directed. ​A judge who would interfere with the assessment of the appropriateness of the administrative decision would violate the separation of powers between the administration and the courts.
• The Belgian legal system does not assign any binding precedent value, either to administrative or judicial decisions
• It is not for the Court of Appeal to repeat the fact-finding process in order to substitute itself for the national DPA.
• The Court, adjudicating with full jurisdiction, conducts a legality and proportionality review of the administrative fine and will reduce or cancel the fine only in case of serious and proven circumstances which have not or not sufficiently been taken into account by the litigation chamber.

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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 -2021/AR/320- p. 4






      In this context, various companies that offer products and services are
      (future) mothers turn to NDPK so that there is an advertisement, a sample or promotion

      will be included in the magazine, guide or Pink Box that is offered.



      NDPK states that it only transfers the email addresses of (expectant) mothers to
      its long-term partners, namely [...], [...] and [...].



      In addition to these three partnerships, NDPK offers other companies that offer products and
      offer services to (expectant) mothers, the data (after permission) for the

      decision, on a temporary basis and for one-time use. NDPK states

      that it is not possible to name all potential partners
      when she asks the permission of (future) mothers. Only the activities

      can be indicated.



      On September 19, 2019, the Data Protection Authority received a complaint from a
      courage there who had registered by filling in a reply card for the receipt

      of the Pink Boxes.


      The complaint followed a call the complainant received on her mobile number, in which a
     Dutch company called "Kinderfeest" offered her a package of children's books. It

     Dutch company knew her name, her date of birth, the name and date of birth of

     her son, her e-mail address and her mobile number. Kinderfun informed the complainant that
     her details were communicated to Kinderfun by NDPK. The complainant argues that the

     transfer of its data was done in a non-transparent manner, in particular to companies

     which she could not find anywhere in NDPK's privacy policy, and that she did not
     was aware that NDPK sold its data to commercial partners who

     could contact by telephone after submitting its details to NDPK.



      The complainant has requested NDPK to remove her data from its files and to

     to stop the transmission of its data. However, the complainant notes that even after the

     submitting an objection to NDPK still commercial offers from third partners

     from NDPK.


      On September 30, 2019, the First-line Service of the GBA declares the complaint admissible on

     pursuant to Articles 58 and 60 of the Law of 3 December 2017 'establishing the
     Data Protection Authority' (hereinafter: "WOG"). She will forward the complaint to the

     Disputes Chamber, in accordance with Article 62, § 1, WOG. The complainant will be informed of this at 30

     September 2019 pursuant to Article 61 WOG.