Court of Appeal of Brussels - 2023/AR/801

C.A. - 2023/AR/801

Court:	C.A. (Belgium)
Jurisdiction:	Belgium
Relevant Law:	Article 96 GDPR
Decided:	28.06.2023
Published:
Parties:
National Case Number/Name:	2023/AR/801
European Case Law Identifier:
Appeal from:	APD/GBA 61/2023
Appeal to:	Unknown
Original Language(s):	French
Original Source:	APD/GBA (in French)
Initial Contributor:	n/a

The Brussels Court of Appeal considered that Article 96 GDPR does not provide a time limit for the validity of international agreements concluded prior GDPR and that a ban on some data transfer to the US could lead to serious harm to Belgium's international reputation.

English Summary

Facts

On 24 May 2023, the Belgian DPA issued a decision in which it ordered a ban on the transfer of tax data of accidental US citizens residing in Belgium to the US. Despite the fact that Article 96 GDPR provides that previously concluded agreements which comply with the EU legislation prior to GDPR are still valid under GDPR, the DPA considered the FATCA agreement as not in line with the GDPR (see GDPRhub summary).

The controller filed an appeal with the Appeal Court requesting that the decision be suspended and annulled. The Court indeed has jurisdiction to suspend a decision if, prima facie, it appears that the decision could be annulled and if the immediate execution of the decision is likely to cause serious harm that would be difficult to repair.

The controller argued that the decision violated Article 96 GDPR by holding that the FATCA agreement was invalid and that its execution caused serious harm to Belgium's international reputation and relations.

Holding

The Court considered that, contrary to the interpretation of the DPA, Article 96 GDPR does not provide for a time limit on the validity of international agreements concluded prior to the GDPR.

In addition, the Court held that if the decision was not suspended, the Belgian State would not be able to meet its commitments to the USA, i.e. to transfer the data before 30 September. The contested decision placed the Belgian State at odds with its international commitments, whereas Article 27 of the Vienna Convention on the Law of Treaties states that a party may not invoke the provisions of its domestic law to justify its failure to perform a treaty.

The Court then carried out a balance of interests and considered that although the transfer of the data potentially infringed the provisions of the GDPR, the objective was to prevent tax fraud, i.e. an objective of general interest. This objective outweighed the interests of the data subjects.

As a result, the Court decided to suspend the DPA's decision pending a ruling on the merits.

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English Machine Translation of the Decision

The decision below is a machine translation of the French original. Please refer to the French original for more details.

Court of Appeal Brussels-2023/AR/801-p. 2

BECAUSE OF:

1. THE BELGIAN STATE, MINISTER OF FINANCE, BCE 0308.357.753, North Galaxy Towers, 1030

BRUSSELS, Boulevard du Roi Albert lI33,

requesting party,

having acted as counsel Maître VAN GYSEGHEM Jean-Marc, lawyer at [...]

AGAINST:

1. THE DATA PROTECTION AUTHORITY, BCE 0694.679.950, whose head office is located at 1000
BRUSSELS, Rue de la Presse 35,

opposing party,

counseled by Maître DE SCHIETERE DE LOPHEM Evrard and Maître RYELANDT Grégoire, lawyers
To [...],

1. Mr. X, residing at [...],

2. THE ACCIDENTAL AMERICANS ASSOCIATION OF BELGIUM, BCE 0735.382.140, (AAAB), 1160

AUDERGHEM, ClosAlbert Crommelynck 4, box 7,

voluntary intervening parties,

having as counsels Maître MOSSELMANS Jens, Maître WELLENS Vincent and Maître
VANDERSTRAETEN Maxime, lawyers at [...]

**************************************

Considering the documents of the procedure, and in particular:

substantive decision no. 61/2023 rendered on May 24, 2023 by the Litigation Chamber of
the Data Protection Authority (hereafter “the DPA”) in DOS-2023-00068 on the

“Complaint relating to the transfer by the Federal Public Service (FPS) Finance of data
personal data to the American tax authorities in execution of the FATCA agreement" (here
after the “Improved Decision”);

rPAGE 01-00003382612-0002-□018-03-01-�

L_JCourt of Appeal Brussels-2023/AR/801-p. 3

I appeal for suspension and cancellation against the said Decision filed at the registry by the State
beige, Minister of Finance, June 14, 2023;
the request for voluntary protective intervention filed on June 27, 2023 by Mr. X

and the ASBL Accidental Americans Association of Belgium (hereafter “AAAB”);
the parts deposited for the beige State.

Heard the advice of the parties at the public hearing of June 28, 2023.

,. THE CONTESTED DECISION

1. The appeal relates to the Impugned Decision, taken by the Litigation Division of the APD on 24

May 2023 in DOS-2023-00068 on the “Complaint relating to the transfer by the Federal Public Service
(SPF) Personal Data Finances to U.S. Tax Authorities in Execution of
the FATCA agreement”.

ll. PROCEDURE BEFORE THE COURT

2. The appeal is made by petition filed by the Belgian State, Minister of Finance, at the registry
of the Court, June 14, 2023.

Formed within the thirty-day period provided for in article 108 of the law of December 3, 2017 on
creation of the Data Protection Authority (hereafter “APD law”), the appeal is admissible, this
which is not disputed.

3. On June 27, 2023, Mr. X and the AAAB filed a motion for voluntary intervention.

4. At the introductory hearing, by agreement of the parties, the proceedings were limited to the request

suspension of the contested Decision, and the case taken under advisement on this sole request.

�
1 PAGE 01-00003382612- □□□ 3- □□ 18- □3- □1-

L_J Court of Appeal Brussels-2023/AR/801-p. 4

111. THE CONTEXT OF THE CONTESTED DECISION AND THE PROCEDURE BEFORE THE DPA

5. On December 22, 2020, Mr. X (identified as "X") - who identifies himself as a
"accidental American", having acquired American nationality by reason of his birth on the soil

American, but without having other ties with this country - and the ASBL Accidental Americans Association of
Belgium (AAAB) lodged a complaint with the APD 1 denouncing the illicit character, according to them, of the
transfer of personal data operated by the FPS Finances to the American tax authorities

in the context of the application of the "FATCA" intergovernmental agreement concluded between the Belgian State
and the United States on April 23, 20142, as well as other GDPR breaches in the same context.

The Court refers at this stage to the factual elements set out in the Contested Decision, as follows

“5. By virtue of his American nationality, the first parent is considered to be subject to the
control of the American tax authorities with regard to the American tax legal system. This system
is in fact based on the principle of taxation based on nationality and targets the accidental American

like any other taxpayer established on American soil or having activities in re/ation with this
country, the fact that his residence is not established in the United States being irrelevant. alone
certain exceptions apply to non-residents on US soil.

6. In order to facilitate the collection of relevant information by the American IRS (Internal Revenue
Service - ei-àpres IRS) with a view to a possible taxation of Americans residing abroad (in this
including injured Americans such as the first plaintiff), the U.S. government designed

intergovernmental agreements with different states of the world. These agreements provide for the
communication of data relating to these Americans residing abroad by the institutions
national financial authorities (to/the banks) to the national tax administration (to/the defendant),

the latter then being required to transfer this data to the IRS.
7. It is in this context that the "Agreement between the Government of the Kingdom of
Belgium and the Government of the United States of America to improve International tax

compliance and to implement Fatca”, signed by the representatives of the governments of the Kingdom
of Belgium and the United States of America on April 23, 2014. This agreement is commonly and hereinafter

called "the FATCA agreement". It gives effect to the Foreign Account Tax Compliance Act
from which the acronym “FATCA” is derived. A comparable bilateral intergovernmental agreement has
has also been signed with various states of the world, including the member states of the European Union

(ei-after EU).
8. The Belgian Law of 16 December 2015 regulating the communication of information relating to
financial accounts by the Belgian financial institutions and the FPS Finances, within the framework of a

1°
This complaint (complaint no. 1) will be declared admissible by the APO's front-line service insofar as it is
brought by the first complainant, and °inadmissible because it is brought by the second complainant; this one
will file a second complaint (complaint no. 2) explaining his interaction, which will be declared admissible. By
Subsequently, the two complaints were joined and the APO refers in the Impugned Decision to the two complaints, as
"the complaint", which the court will also do in this judgment.
2 Having been the subject of a law of consent of December 22, 2016.

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