Court of Appeal of Brussels - 2021/AR/1044
| Hof van Beroep - 2021/AR/1044 | |
|---|---|
 | |
| Court: | Hof van Beroep Brussel (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 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 the decision of the SA, because the controller did not put forward any concrete evidence to justify its claim for suspension. The applicant must prove that the enforcement of the decision of the SA would infringe and violate the right to an effective remedy as set out in 47 CFREU.
English Summary
Facts
The Belgian tax department appeals the aspects of the decision of the SA that was provisionally enforceable and asks 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 decisions of 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), we can deduce that the European legislator did not intend to make decision of the litigation chamber of a DPA provisionally enforceable.
Article 108, § 1, par. 2 WOG must be interpreted strictly and in order to suspend the provisional enforceability of the measures, the applicant must prove and motivate that the application of Article 108, § 1, par. 2 WOG would infringe and violate the right to an effective remedy as set out in 47 CFREU.
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.
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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.
