APD/GBA (Belgium) - 31/2022
|APD/GBA - DOS-2020-00186 ( 31/2022 )
|Article 5(1)(a) GDPR
Article 6(1) GDPR
Article 12(1) GDPR
Article 14(1)(a) GDPR
|National Case Number/Name:
|DOS-2020-00186 ( 31/2022 )
|European Case Law Identifier:
|Beslissing ten gronde 31/2022 van 4 maart 2022 (in NL)
The Belgian DPA determined that the Belgian City of Kortrijk did not have a legal basis for sharing personal data with the Belgian FOD to issue a parking fine. Both controllers also violated Articles 5(1)(a), 12(1) and 14(1)(a) GDPR.
English Summary[edit | edit source]
Facts[edit | edit source]
This decision involves two controllers, the Belgian City of Kortrijk (controller 1) and the Belgian federal service of mobility and transport (controller 2). AGB Parko is a public company who acted on behalf of Controller 1.
AGB Parko had a lawful legal basis under deliberation FO No. 02/2016 to use controller’s 2 database to identify owners who owed fees on their vehicles and issue fines. On 01/01/2020, AGB Parko’s services was integrated into the city services of controller 1. Controller 1, via AGB Parko, issued the data subject a parking fine on the 28/05/2020.
The data subject questioned the legal basis that controller 1 relied on to request personal data about the holder of the license plate from controller 2. On 05/11/2020, the data subject filed a complaint at the Belgian DPA against controller 1 and 2. The data subject claimed, that at the time of the facts, both controllers did not have a valid legal basis for sharing their personal data and should not have been able to identify his license plate to issue a fine.
Holding[edit | edit source]
Controller 1 could not rely on deliberation FO No. 02/2016 as a legal basis for accessing controller 2’s database. Unlike AGB Parko, Controller 1 did not fall under the category of possible beneficiaries to the deliberation. At the time of the fine, Controller 1 was only beneficiary to deliberation FO No. 18/2015 which they also could not rely on as the deliberation does not allow identification for the purposes of fees or tax.
While only the lack of legal basis was discussed during the hearings, the DPA went beyond finding a violation on the lawfulness of processing under Article 6(1) for controller 1, to also find violations of Articles 5(1)(a), 12(1) and 14(1)(a) GDPR for both controllers. This was because they failed to process the subject’s data in a transparent manner which consequently did not allow to complainant to easily learn about the processing of his data.
It should be noted that during the hearing, one of the three members of the DPA had stepped down due to a conflict of interest. Therefore, the chair decided to issue the decision alone, since it was not allowed to issue a decision with only two members.
This decision was appealed by controller 1 based on incompatibility with the rights of the defense as well as with the general principles of good administration.
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English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
1/27 Litigation room Decision on the substance31/2022 of 4 March 2022 This decision was overturned by judgment 2022/AR/457 of the Marktenhof dd. October 26, 2022 File number : DOS-2020-00186 Subject: Identification of number plate following parking ticket followed by assessment notice for tax on parking The Disputes Chamber of the Data Protection Authority, composed of Mr Hielke Hijmans, sole chairman; Having regard to Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing 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; Having regard to the rules of internal order, as approved by the Chamber of Representatives on December 20, 2018 and published in the Belgian Official Gazette on January 15, 2019; Having regard to the documents in the file; has taken the following decision regarding: . The complainant: Mr X, hereinafter referred to as “the complainant”; . . The defendants: City of Kortrijk, Grote Markt 54, 8500 Kortrijk, represented by lawyers Bart Martel and Anneleen Van de Meulebroucke, hereinafter “defendant 1”; Decision on the substance 31/2022 - 2/27 FPS Mobility and Transport, Directorate-General for Road Transport and Road Safety, Rue du Progrès 56, 1210 Brussels, represented by counsel Frederic Debusseré and Ruben Roex, hereinafter “defendant 2”. I. Factual Procedure 1. On 5 November 2020, the complainant filed a complaint with the Data Protection Authority against the defendants. The object of the complaint concerns the identification of the license plate belonging to the complainant following a determination by a Parko parking attendant on May 28, 2020 that resulted in a parking ticket and subsequently in a tax assessment notice on it parking. The complainant argues that defendant 1, who has been responsible for the parking policy, although it has joined the deliberation FO no. 14/2016 of 21 January 2016 , but this affiliation took place through an agreement that was not finalized 3 concluded on September 1, 2020 and in which point 13 states that the agreement 4 enters into force on January 1, 2020. The date of entry into force is stated as August 28, 2020. According to the complainant, defendant 1 did not have the necessary equipment at the time of the facts authorization to proceed with the identification of his number plate. Defendant 1's safety consultant who was contacted by the complainant referred to the 5 authorization FO No. 18/2015 of May 28, 2015 to verify the number plate identification justify. However, this deliberation concerns the identification and punishment of violators of municipal regulations or ordinances and does not concern a fee or tax. This leads the complainant to the conclusion that both defendant 1 and defendant 2, during have relied on an incorrect authorization for a number of months to inform the holder of a number plate through the Vehicle Registration Service (DIV), thereby the protection of his personal data would have been violated. The complainant poses the question what legal basis defendant 1 relies on for the period from 1 January 2020 to 1 September 2020 1Deliberation regarding the one-off authorization to grant the municipalities access to the directory of the DIV for the identification of persons liable to pay a parking fee, tax or parking fee due to the use of a vehicle - Revision of the deliberation FO n° 05/2015 of 19 March 2015 (AF-MA-2015-099) 2https://mobilit.belgium.be/nl/wegverkeer/inschrijven_van_vehicles/data exchange/parking management 3The connection agreement can be found via the following link: https://mobilit.belgium.be/sites/default/files/DGWVVV/kortrijk_14_2016.pdf 4 https://dt.bosa.be/nl/beneficiaries_beraadslaging_fo_nr_142016 5Deliberation on the granting of a general authorization to the Cities and Municipalities, the autonomous municipal companies and the Brussels Capital Parking Agency to receive by electronic means the personal data from the Registration Directorate of Vehicles (hereinafter the "DIV") for the identification and punishment of violators of municipal bylaws or ordinances (AF- MA-2014-068) Decision on the substance 31/2022 - 3/27 bases to request personal data concerning the holder of a license plate from defendant 2 for the identification of persons affected by the use of a vehicle, parking fee, tax or parking fee and on what legal basis the defendant 2 provided personal data to defendant 1 for that same period . 6 2. On January 18, 2021, the complaint will be declared admissible by the First Line Service on the basis of Articles 58 and 60 WOG and the complaint is based on art. 62, §1 WOG transferred to the Litigation room. 3. On February 25, 2021, the Disputes Chamber will decide on the basis of art. 95, §1, 1° and art. 98 WOG that it file is ready for consideration on the merits and the parties involved are informed of the provisions as stated in article 95, §2, as well as of those in art. 98 WOG. also become they pursuant to Art. 99 WOG of the deadlines to file their defences serve. The deadline for receipt of the statement of defense from the defendants was thereby extended recorded on 8 April 2021, those for the complainant's statement of reply on 29 April 2021 and these for the statement of defense of the defendants on 20 May 2021. 4. On February 26, 2021, the complainant electronically accepts all communication regarding the case, in accordance with Article 98 WOG. 5. On March 15, 2021, the complainant requests a copy of the file (art. 95, §2, 3° WOG), which he was transferred on March 23, 2021. 6. On March 19, 2021, defendant 2 requests a copy of the file (art. 95, §2, 3° WOG), which was transferred to him on March 23, 2021. Also, on April 7, 2021, he electronically accepts all communication about the case, in accordance with Article 98 WOG. 7. On 25 March 2021, the defendant 1 electronically accepts all communication regarding the case and gives to know that you wish to make use of the opportunity to be heard, accordingly article 98 WOG, as well as a copy of the file (art. 95, §2, 3° WOG) is requested, which will be transferred on April 7, 2021. 8. On April 6, 2021, respondent 2 requests an extension of the submission deadlines, which the Litigation room will be allowed on April 7, 2021. The deadline for receipt of the statement of defense from the defendants was thereby extended recorded on 15 April 2021, this for the conclusion of the complainant's reply on 6 May 2021 and this for the statement of defense of the defendants on 27 May 2021. 6See also Decision on the substance 81/2020 of 23 December 2020. Decision on the substance 31/2022 - 4/27 9. On 15 April 2021, the Disputes Chamber will receive the statement of defense from Defendant 1. First, defendant 1 disputes the admissibility of the complaint and argues that the Data protection authority, but the Flemish supervisory committee is the competent authority is to judge the complaint. She also puts forward a number of procedural points that the rights of defense would have been violated. As to the substance of the matter defendant 1 that she is the legal successor of AGB Parko and could use it in that capacity making the deliberations of the Sectoral Committee for the Federal Government. It also adds that it has always acted in good faith. 10. On April 15, 2021, the Disputes Chamber will receive the statement of defense from defendant 2 who also refers to the relevant deliberations of the Sectoral Committee for the Federal Government and the legal succession on the part of defendant 1 to decide that the data of the complainant in the DIV directory could be provided to defendant 1. 11. On 6 May 2021, the Disputes Chamber will receive the statement of reply from the complainant in which it explains that the authorization on the basis of which his personal data were processed in order to may proceed to the levying of a parking tax, which was incorrect and had no legal basis to process his personal data for that purpose. 12. On 27 May 2021, the Disputes Chamber received the statement of reply from defendant 1 in which the defenses as put forward in the statement of defense are stated resumed, supplemented by pleas regarding additional allegations made by the complainant. 13. On 27 May 2021, the Disputes Chamber received the statement of reply from defendant 2 in which he again cites the defenses as in his statement of defense, with the addition that he denies being a defendant in these proceedings and raises that the principles of good governance would have been violated. 14. On 8 July 2021, the parties are informed that the hearing will take place on 29 October 2021. 15. On October 29, 2021, the defendants will be heard by the Disputes Chamber. became the complainant duly summoned to participate in the hearing, but did not appear. 16. Following the hearing that took place, the Disputes Chamber requests on October 29, 2021 both defendants to take a position on the next one: How do the deliberations referred to in the documents of the case relate as well during the hearing turned to the AVG? More specifically, after the entry into force of the GDPR there will be a sufficient legal basis for the City of Kortrijk to collect data on the basis of a deliberation questions to the DIV on the one hand, and for the FPS Mobility and Transport, Directorate-General Decision on the substance 31/2022 - 5/27 Road Transport and Traffic Safety to disclose data on the basis of a deliberation on the other hand, this in the light of article 6.1.ejuncto 6.3 GDPR (legal basis of public interest) and article 24 GDPR (accountability). The complainant will also be notified on the same date. 17. On 8 November 2021, the minutes of the hearing will be submitted to the parties. 18. On November 15, 2021, the Litigation Chamber receives some comments from the defendant1 with regard to the official report, which it decides to include in its deliberations. 19. On November 16, 2021, the Disputes Chamber received a number of comments from Defendant 2 with regard to the official report, which it decides to include in its deliberations. 20. On November 16, 2021, defendant 2 will submit his argumentation to the Disputes Chamber question as it was addressed at the hearing, as well as in the subsequent letter dated October 29, 2021. This is essentially limited to stating that they are federal public service on the grounds that the legislator is presumed to have higher legal standards such as did not want to violate EU law, and on the basis of the principle of legal certainty there it may be assumed that the legal instruments that Belgian law and regulations provide it with, be in compliance with the GDPR. It does not consider it its task or competence as FPS Mobility and Transport to question, defend or not apply those legal instruments. 21. On November 15, 2021, respondent 1 asks for clarification regarding the aforementioned question from the Litigation Chamber, as well as a postponement is requested to take a position. 22. On November 24, 2021, the Disputes Chamber will explain the scope of the question to Defendant 1 and allows it to express its position by 8 December at the latest 2021. 23. On December 8, 2021, defendant 1 submits his argumentation to the Disputes Chamber question as it was addressed during the hearing, as well as in the subsequent one letters dated October 29, 2021 and November 24, 2021. Respondent 1 states in it that it does not can meet the request of the Disputes Chamber to provide a answer for which the following reasons are given: incompatible with the rights of defense and general principles of good administration, not belonging to the task of a controller to ensure compliance with Belgian regulations on check the processing of personal data with the GDPR, and exceed the saisine of the Litigation room. 24. The hearing on 29 October 2021 took place with three sitting members. Between the hearing and the deliberation on the decision has left one of the sitting members manage to withdraw from the case, with reference to Article 43 of the WOG. Consequently and Decision on the substance 31/2022 - 6/27 since the WOG does not allow a decision by two members, this decision is made by the chairman, sitting alone (Article 33, §1, paragraph 3 WOG). II. Motivation a) Competence of the Data Protection Authority 25. The defendants argue that the Data Protection Authority, including its bodies, including the Disputes Chamber, would be without jurisdiction in this case. The After all, the defendants argue that the Flemish Supervisory Commission is authorized to carry out supervision practice compliance with (constitutional) legal and other regulatory provisions personal data protection carried out by an authority as referred to in Article 10/1, §1 of the Decree of 18 July 2008 on electronic administrative data traffic (hereinafter: the “decree of 18 July 2008”) when this supervision is part of a state competence. 26. As already explained in its decision 15/2020 of 15 April 2020 8 , the Data Protection Authority (“DPA”) competent to handle this case. Regulatory Powers on Personal Data Protection 27. First of all, the Litigation Chamber emphasizes that the GDPR is a regulation that directly applicable in the Union and may not be transposed into national law by the Member States. Provisions from the GDPR may also not be specified in national regulations, except on the points where the AVG expressly makes this possible. The data protection has therefore in principle become a matter of European law. 9 28. The issuance of any regulatory provisions on personal data by the federal or state government must therefore take place within the framework that has been established by the GDPR. In this regard, the Litigation Chamber refers to article 22 of the Constitutional Law case law on this matter of the Constitutional Court, which states that the right to respect for the private life, as guaranteed in Article 22 of the Constitution (as well as in treaties), a wide 7Cf. Article 10/1 of the Decree of 18 July 2008 “regarding electronic administrative data traffic”, as inserted by Article 20 of the Decree of 8 June 2018 “adapting the Decrees 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 on the free movement of such data and repealing Directive 95/46/EC (general data protection regulation)” (hereinafter the “GDPR Decree”). B.S. June 26, 2018. 8https://www.dataprotectionauthority.be/publications/besluit-ten-gronde-nr.-15-2020.pdf,§§32-35en66ennext. See also Decision 23/2022, § 6, https://www.dataprotectionauthority.be/publications/zonder-gevolg-nr.-23-2022.pdf 9 See e.g. C. KUNER, L.A. BYGRAVE and C. DOCKSEY (eds.), The EU General Data Protection Regulation: A Commentary, Oxford University Press, 2020, 54-56. Decision on the substance 31/2022 - 7/27 scope and, inter alia, the protection of personal data and personal data information includes. 10 29. With regard to the right to respect for private life, article 22 of the Constitution provides that: “Everyone has the right to respect for his private and family life, except in cases and under the conditions laid down by law. The law, decree or rule referred to in Article 134 shall ensure the protection of that right.” 30. Since article 22 of the Constitution dates from after the state reform of 1980, the The word “law” in that provision means a federal law. Restrictions on the by that rights guaranteed by a constitutional provision cannot, in principle, therefore be granted by a decree or a ordinance be established. This would mean that an interference in private life - including understood the processing of personal data – cannot result from decrees or ordinances. 11 31. Since such an interpretation limits the powers of the Communities and Regions would erode, have, among others, the Constitutional Court and the Legislation Department of the Council of State held that imposing general restrictions is a matter for the federal legislature reserved matter. In that case, the sub-areas retain the possibility to, within their powers, to provide specific restrictions, provided they are general federal respect legislation in this regard. 12 32. In short, the Litigation Chamber finds that the federal government and the communities and the regions are empowered to issue general and specific rules respectively on the protection of private and family life and this only on the points where the AVG allows this and within the rules of the AVG that are directly applicable in the Belgian legal order. Also where specific rules on the protection of personal data are set by the federal governments, within the space that the AVG allows for this, the general rules arising from federal legislation on personal data protection te are respected. 10See e.g.GwH,no.29/2018,15March2018,B.11;no.104/2018,19July2018,B.21;no.153/2018,8November2018,B.9.1.See alsoA.ALEN and K. MUYLLE, Handbook of Belgian Constitutional Law, Kluwer 2011, p. 917 ff. 11A. ALENen K. MUYLLE, Handbook of Belgian Constitutional Law, Mechelen, Kluwer, 2011, 918EYBROUCK and S. OTTIAUX, De federal powers, Antwerp, Intersentia, 2019, 122; ANDE LANOTTE, G. OEDERTIER, Y. AECK, J. OOSSENS and T. DE 12LSMAEKER , Belgian Public Law, Bruges, die Keure, 2015, 449. Court of Arbitration, no. 50/2003, 30 April 2003, B.8.10; no. 51/2003, 30 April 2003, B.4.12.; no. 162/2004, 20 October 2004 and 16/2005, 19 January2005;GwH,20October2004,14February2008;Adv.RvSnr.37.288/3of15July2004, Parl.St.Vl.Parl.2005-2006,nr.531/1: “[…] the Communities and the Regions [are] only competent […] to impose specific restrictions on the right to respect for to allow and regulate private life insofar as they adapt or supplement the federally determined basic standards, but […] they [are] not authorized … to affect those basic federal standards.” 13J. VAN PRAET, The latent state reform, Bruges, die Keure, 2011, 249-250. Decision on the substance 31/2022 - 8/27 Supervisory authorities in the context of personal data protection 33. The defendant refers to Article 57(1)(f) GDPR and Article 51(1) GDPR from which it follows that all member states determine which public authority will carry out the supervisory tasks and that it it is possible to designate more than one supervisory authority. 34. Following the GDPR, the law of 3 December 2017 establishing the 14 Data Protection Authority (hereinafter: “WOG”) adopted. The GBA was thus established on the basis of Article 4, §1, first paragraph WOG. It is true that, as Article 4, § 1, second paragraph WOG expressly confirms, also the federal states themselves data protection authorities, as already indicated by the Council 15 van State in its advice no. 61.267/2/AV of 27 June 2017 (see below). In implementation of this article the Flemish legislator has established the Flemish Supervisory Commission (hereinafter: “VTC”)by article 10/1 16 of the decree of 8 June 2018. Supervisory powers of the supervisory authorities 35. In view of the competing powers set out above personal data protection, Article 141 of the Constitution instructs the legislator 17 procedure to avoid conflicts of competence between legislative standards. This task was entrusted to the legislation section of the Council of State. Regarding the powers of the aforementioned supervisory authorities refer to the Disputes Chamber to advice no. 61.267/2/AV of 27 June 2017 of the Legislation Division of the Council of State which was issued in response to the preliminary draft that led to the WOG. In this In its opinion, the Council discussed in detail the rules that divide competences with regard to the supervision of 18 data protection. 36. In the aforementioned preliminary draft, the Council of State stated that the federal government should have a supervisory authority with “general authority (…) over all 14B.S. January 10, 2018. 15 Advisory Council No. 61.267/2 of 27 June 2017 on the preliminary draft law 'reforming the Commission for the protection of privacy', rn.7.1-7.2.See also bv.Adv.RvS, no.66.033/1/AVof3June2019on a draft decision of the Flemish Government of 10 December 2010 "implementing the decree on private job placement, with regard to the introduction of a registration obligation for sports agents', 4; Adv.RvS., no. 66.277/1 of 2 July 2019 on a draft decision of the Flemish Government 'containing further rules for the processing, storage and probative value of electronic data on allowances under family policy', 6-7. 16 B.S. June 26, 2018. 17 Article 141 Constitution: “The law establishes the procedure to settle the conflicts between the law, the decree and the provisions referred to in Article 134, as well as between decrees and between the rules referred to in Article 134.” 18 Ibid., 8, p. 28-45. Decision on the substance 31/2022 - 9/27 processing of personal data, including those that take place in matters for which 19 the Communities and the Regions are competent”. Such an arrangement is without prejudice 20 to the competence of the Communities and Regions, […]”, said the Council of State. Consequently, according to the Council of State, the regional supervisory authorities can only be empowered to monitor the specific rules they have issued for data processing in the context of activities that fall within their competence, and this of course only insofar as the GDPR still allows Member States to adopt specific provisions and the provisions of the WOG are not prejudiced. The Council confirms this van State stated its position in advice no. 37.288/3 of 15 July 2004, as cited in advice no. 61.267/2/AV of 27 June 2017, in which the Council of State considered the following about the competence of the Commission for the protection of privacy, the predecessor of the GBA: “The authors of the draft rightly assume that the legislature cannot detract to the powers of the Commission for the Protection of Privacy, established by the law of 8 December 1992. In implementation of the directive, the federal legislator has establish a supervisory body, which has general authority over all processing of personal data, including those that take place in matters for which the communities and the regions are competent.” 21 37. In short, the GBA, as a federal supervisory authority, is the competent authority for supervision abide by the general rules, including the mandatory provisions of the GDPR that do not contain any further 22 need national implementation. This is also the case if the data processing is related has on a matter that falls under the competence of the Communities or Regions and/or if the controller is a public authority that falls under the communities or the regions, such as a municipality, even if the federal state itself has one supervisory authority within the meaning of the GDPR. 38. In view of the above, the Disputes Chamber concludes that in order for a federal state supervisor would be competent, it is by no means sufficient that the data processing relates has on a federal state matter, in this case the matter of the additional traffic regulations. The federal state in question must also, within the space that the GDPR still leaves for the member states, 19Ibid., 8, marg. 5, referring to Adv.RvS, no. 37.288/3 of 15 July 2004 on a preliminary draft decree 'concerning the health information system,” Parl.St. Vl. Parl. 2005-06, no. 531/1, 153 ff. 20Ibid., 8, marg. 6. 21 Adv. Stainless steel. no. 37.288/3 of 15 July 2004. 22See also BVAdv.RvS, no.66.033/1/AVofJune 3, 2019 on a draft decision of the FlemishGovernment of December 10, 2010 'for the implementation of the decree on private job placement, with regard to the introduction of a registration obligation for sports agents', 5; Adv.RvS., no. 66.277/1 of 2 July 2019 on a draft decree of the Flemish Government 'containing the further rules for the processing, storage and probative value of the electronic data concerning the allowances in the framework of family policy', 7. Decision on the substance 31/2022 - 10/27 have issued specific rules for the processing of personal data in the framework of that matter. It is only the supervision of compliance with those specific state rules that can be entrusted to the state supervisor. 39. The Disputes Chamber emphasizes that the notion of 'specific rules' should not be interpreted too broadly. It appears from the advice of the Council of State cited above that the term 'specific rules' refers to specific limitations or special warranties, which differ from or go beyond the general provisions, warranties and limitations contained in, or arising from, the GDPR or federal law. In other words, the mere fact that the Länder (by decree or decision) implementing or confirming a general rule does not mean that rule is the character of a 'specific rule'. There is only a specific rule when the federal states, using the space that the GDPR leaves for this, additional safeguards or set restrictions. 40. In addition, any limitations of an authority's powers for the data protection under the GDPR would only be possible if at the level of a state a supervisor would have been established that meets all the requirements under the European Treaties are assigned to the supervisor, which also includes all tasks and authority from the supervisory authority. In this connection, they refer in particular to the Articles 51 to 59 of the GDPR. 41. The Litigation Chamber notes that the disputed processing operations were carried out on the basis of three general deliberations 23 granted by the sectoral committee set up by the Commission for the Protection of Privacy (hereinafter: “CPP”). TheCBPL end sectoral committees were abolished by the law of 30 July 2018 on protection of natural persons with regard to the processing of personal data. 24 The authorizations and the relevant processing of personal data by the defendant in the within the framework of the relevant authorizations, namely the communication of data from the Crossroads database of the vehicles - in particular the registration plate - to the applicant controller in the context of its additional powers parking regulations, must therefore be checked against the new legal since 25 May 2018 framework, in particular the provisions of the GDPR. 23 Deliberation FO no. 02/2016 of 21 January 2016, Deliberation FO no. 14/2016 of 21 January 2016 and Deliberation FO no. 18/2015 of 28 May 2015. 24Article 280 Law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data. Decision on the substance 31/2022 - 11/27 42. Within the current legal framework, and in particular pursuant to Article 35/1 of the Law of 15 August 2012 establishing and organizing a federal services integrator and the law25 of September 5, 2018 establishing the Information Security Committee, it is Information Security Committee (hereinafter: “ICC”), in particular authorized to hold deliberations regarding certain communications of personal data, including the notice of data contained in the Crossroads Bank for Vehicles. Article 35/1, § 4, of the Federal Law Service Integrator specifies that “the deliberations of the Information Security Committee with reasons and [have] a general binding scope between the parties and towards third parties”. Based on the same article, the Data Protection Authority can deliberation of the Information Security Committee at all times, regardless of when it became granted, check against higher legal standards, such as the GDPR. Consequently, the Litigation Chamber authorized to assess whether the authorizations and the processing based on this are performed comply with the obligations as provided for in the GDPR. 43. In view of the above, the Disputes Chamber concludes that this case does not concern an assessment of a data processing by an authority in accordance with article 10/1, §1 of the decree of 18 July 2008 on electronic administrative data traffic to a specific rule issued by the state government within its state jurisdiction. As the permissions in question have been shown to be general in nature and the testing against the GDPR of these authorizations together with the personal data processing carried out on the basis thereof have been carried out thus belong to the Disputes Chamber. b) Rights of defense and principles of good administration The complaint 44. Defendant 1 asserts that the rights of defense would have been violated because it did not would be clear against which complaint they should defend themselves. Defendant 1 holds before three complaints would have been submitted by the complainant and refers to the documents submitted by the complainant complainant were transferred on 10 August 2020, 5 November 2020 and 7 December 2020. 45. In this regard, the Litigation Chamber notes that the complainant first attempted to to be filed on August 10, 2020, but since the complaint only contains the last page of the complaint form–which concerned only the date of the complaint, the signature as well as the name and contains the complainant's first name – did the complainant submit the full complaint form on 5 November 2020. Subsequently, documents were provided by the complainant on 6 December 2020 substantiation of his complaint filed on November 5, 2020. Contrary to what Defendant 1 25B.S. 28 August 2012. Decision on the substance 31/2022 - 12/27 states, the complainant has thus lodged a single complaint, namely that which was lodged on complete manner dated November 5, 2020. This complaint was therefore enclosed with the letter sent on 25 February 2021 was communicated to the parties to establish the calendar of conclusions and with the request to file defenses. It is only after the complaint became complete submitted and the complainant has provided the necessary supporting documents that the complaint has been accepted by the First-line service could be declared admissible, as was done. In addition, has Defendant 1 received a copy of the file, making all elements available to him had to defend himself. Decision on admissibility and decision on readiness for treatment on the merits 46. Respondent 1 argues that the 'alleged' decision of the First Line Service, according to her, does not contains clarification of the facts or the alleged infringements. Defendant 1 also believes in the letter of the Disputes Chamber dated February 25, 2021, it is not possible to deduce which the alleged infringements, nor what the possible sanctions would be. Defendant 1 adds that it it is unknown to her whether there is still an actual decision of the First Line Service, as well that she was not notified of any decision of the Litigation Chamber regarding the ready are for treatment. This leads defendant 1 to the conclusion that the rights of defense have been violated, as have the principles of good administration. 47. The Litigation Chamber clarifies that the decision of the First-line service on the admissibility of the complaint is included in an e-mail addressed to the Disputes Chamber and the relevant e-mail forms an integral part of the administrative file. As a result, the Litigation Chamber has the procedure for treatment has commenced on the merits. The Litigation Chamber brings the parties (both complainant, as well as defendants) in a single letter of both the admissibility of the complaint in accordance with Article 61 WOG – this provision strictly requires that only the complainant is notified of the admissibility of his complaint – as well as the commencement of the procedure on the merits containing all information in accordance with Article 98 WOG in conjunction with Article 95, §2 WOG. 48. With regard to the decision on admissibility, as well as the decision that the file is ready for consideration on the merits, the Disputes Chamber therefore refers to the e-mail dated 25 February 2021 with the letter and accompanying documents attached thereto, in which parties are expressly informed of the fact that the complaint will be lodged by the First-line service was declared admissible and the Disputes Chamber decided that the file is ready for treatment. This means that the letter with conclusion calendar as such shall serve as notification to the parties, both of the decision on admissibility and with regard to being ready for treatment on the merits, so that both Article 61 WOG and Article 98 WOG in conjunction with Article 95, § 2 were respected. Insofar as defendant 1 raises that neither the decision of the First Line Service regarding admissibility, nor the decision of the Litigation Chamber regarding the readiness for Decision on the substance 31/2022 - 13/27 indicate the grounds on which the treatment is based on, the Litigation Chamber must do so to point out that the aforementioned decisions on the one hand of the Primary Service, and on the other hand of the Litigation Chamber are not final decisions, but merely decisions that precede the final decision of the Litigation Chamber. Only the final decision needs to be motivated. The letter with conclusion calendar contains all information prescribed by article 98 WOG and is precisely aimed to based on the defenses filed by the parties, with respect for the rights of defence, to motivate the final decision of the Litigation Chamber. The current decision constitutes this final decision and must be motivated as such. 49. Respondent 1 also argues that it is unknown to her why the Disputes Chamber does not have decided to follow up on the complaint in a different way. The Disputes Chamber emphasizes that there is there is in no way a negative obligation to state reasons, so that it is not obliged to do so explain why it would not have used the other options provided for article 95, §1 WOG. 50. Insofar as necessary, the Litigation Chamber emphasizes that of course the procedural guarantees must be complied with and if there may have been any ambiguity, this is lifted in the follow-up process, ensuring impartial and fair treatment elements raised by defendant 1 do not affect the rights of the defense have been violated, as the defendants have been given the opportunity to present their arguments to be brought forward in full by means of the statement of defense and rejoinders. In addition, the defendants have been able to fully exercise their right to contradict during the hearing of the Litigation Chamber. The defendants are therefore not at any disadvantage encountered; their right of defense has been fully respected. c) Legal basis 51. The complainant asks what legal basis defendant 1 relies on for the period from 1 January 2020 until September 1, 2020 to process personal data concerning the holder of a request number plate from defendant 2 for the identification of persons affected by the use owe a parking fee, tax or parking fee for a vehicle and on what legal basis the defendant 2 has provided personal data to the defendant 1 for that same period provided. Decision on the substance 31/2022 - 14/27 Deliberation and legal succession 52. Defendant 1 invokes deliberation FO no. 02/2016 of 21 January 2016, as well as 26 deliberation FO no. 18/2015 of 28 May 2015 to state that they already have their own access to the DIV directory for the identification of persons who, through the use of a vehicle parking tax. 53. As defendant 1 itself cites, the beneficiaries of deliberation FO no. 02/2016 are the private concession holders of the Flemish cities and municipalities, as well as the municipal ones independent agencies. As an autonomous municipal company, AGB Parko is an external company independent agency of defendant 1, and AGB Parko has committed itself in that capacity to 5 May 2015 joined the deliberation FO no. 17/2010, which was replaced by deliberation FO no. 02/2016, but in which deliberation FO no. 17/2010 is maintained for with regard to the validity of the approved individual declarations of commitment, including also this one from AGB Parko. This means that AGB Parko is a beneficiary of deliberation FO No. 02/2016 and is thus authorized by the Directorate for Registration of Vehicles (DIV) receive identification data from the holders of a registered vehicle that pays a fee, tax due. Defendant 1 could not join this authorization herself, since she does not fall under the category of potential beneficiaries of that particular deliberation. 54. Defendant 1, on the other hand, is a beneficiary of deliberation FO No. 18/2015, but this concerns the authorization to obtain notification of personal data on behalf of the DIV for theidentificationandpunishmentofoffendersofmunicipalregulationsorregulations within the framework of the law of 24 June 2013 on municipal administrative sanctions. This means that defendant 1 can obtain information from the DIV on the basis of this deliberation, but limited to the imposition of municipal administrative sanctions and therefore not for the levying a parking tax, as in the present case. 55. Based on these elements, the Disputes Chamber establishes that defendant 1 is trying to demonstrate that at the time of the facts forming the subject of the complaint they have an authorization to access to the DIV directory was available for the identification of persons, including the complainant, who due to the use of a vehicle parking fee, tax or parking fee due by to invoke, on the one hand, a deliberation of which defendant 1 is not himself the beneficiary (Deliberation FO no. 02/2016) and on the other hand a deliberation of which defendant 1 admittedly 26 Deliberation concerning the one-off authorization and amendment, for what the private concessionaires of the Flemish cities and municipalities and the Flemish municipal autonomous agencies, of the deliberation FO no. 17/2010 of 21 October 2010 27Deliberation on the granting of a general authorization to the Cities and Municipalities, the autonomous municipal companies and the Brussels-Capital Parking Agency to receive the personal data from the Management by electronic means Registration of Vehicles (hiden"DIV") for the identification and the punishment of violators of municipal rules or regulations Substantive decision 31/2022 - 15/27 beneficiary, but does not authorize him to obtain data from DIV for the levying a parking tax (Deliberation FO no. 18/2015). 56. Such argumentation in which defendant1 combines the two aforementioned deliberations to then proceeding to assert that it was authorized to disclose the identification data of the request the complainant from DIV in order to be able to pay the parking tax owed to him however, cannot be accepted, as explained below. 57. To the extent that defendant 1 argues that in view of the dissolution and liquidation of AGB Parko with effect from 1 January 2020 and its incorporation into the city services, from that moment the rights and obligations, including those as determined in deliberation FO no. 02/2016, has taken over as the legal successor of AGB Parko, the Disputes Chamber set on the basis of article 244, §3 of the decree of 22 December 2017 on the local 28 board that Defendant 1 was by operation of law the legal successor of AGB Parko, as confirmed in the decision of the municipal council of the defendant 1. 29 58. With regard to legal succession, respondent 1 refers to Opinion no. 14/2004 and the Recommendation No. 03/2015 30 of the Commission for the Protection of Privacy in which the principle is assumed that the legal successor does not apply for a new authorisation subject to the purpose for which the legal successor uses the relevant personal data processed, remains unchanged and can thus use the authorization as it was granted to his legal predecessor. 59. However, the Litigation Chamber should note that in recommendation no. 03/2015 as a condition to take over the existing authorization by the legal successor - so without this one to apply for new authorization – it has been included that the relevant sectoral committee should can assess whether the applicant who wishes to continue using the existing authorisation is indeed the legal successor. In addition, the sectoral committee must be able to assess whether the legal successor offers sufficient safeguards in the field of security. Respondent 1 itself refers in this context to Deliberation FO no. 31/2015 of 10 December 28Art. 244, § 3. The rights and obligations of the dissolved autonomous municipal company are taken over by the municipality. 29Opinion No. 14/2004 of 25 November 2004 on the request for an opinion from the Chairman of the Board of Directors of the Federal Public Service Personnel and Organization with regard to the Royal Decree of 29 January 1991 by which certain employees of the Ministry of the Interior and Public Service access to the National Register of the natural persons and authorization to use the identification number of that register are granted: can this be done royally decision suffices as a legal basis to assign the Directorate-General e-HR of the Federal Public Service Personnel and Organization have access to the information data of the National Register of Natural Persons and the National Register number to be used for the fulfillment of the tasks related to the implementation of Royal Decree No. 141 of December 1982 establishing a database on public sector employees. 30Recommendation no. 03/2015 of 25 February 2015 on the procedure to be followed with regard to authorisations, by both the sectoral committees, the regional service integrators and the regional administrations in the context of the subsequent transfers of competence of the Sixth State Reform. Decision on the substance 31/2022 - 16/27 31 2015 which refers to opinion no. 14/2004, but fails to show that such notification of legal succession has been made, so that there is no assessment of the foregoing stated conditions have taken place. However, these conditions are also express included in Recommendation No. 03/2015 , but were not respected by Defendant 1 who has not reported the legal succession and has not demonstrated the necessary provide security guarantees with regard to the deliberation FO no. 02/2016. It follows that defendant 1 can therefore not validly rely on deliberation FO no. 02/2016 to obtain data from defendant 2 with a view to levying a parking tax at the expense of the complainant. 60. With regard to advice no. 14/2004 and recommendation no. 03/2015, the Disputes Chamber states that although they do not have a directly legally enforceable character, they must be tested against the current legal context, which means that it must be verified whether the requirements set by the GDPR are complied with, in particular in view of the transparency obligation (articles 5. 1, a) GDPR , 12.1 GDPR 34 and 14.1 a) GDPR ) requiring that with regard to the data subject's personal data are processed in a transparent manner. 61. It appears from the factual elements of the file that it was completely unclear to the complainant defendant 1 has requested his data from defendant 2 purely as being the legal successor of AGB Parko, since Defendant 1 has not provided any form of transparency in this regard, which meant that it was therefore not possible for the complainant to make a simple claim accessible and understandable form of the processing of the data concerning him 31 Deliberation FO no. 31/2015 of 10 December 2015 regarding the application of the Flemish Tax Authorities (“VLABEL”) to be legal successor of the Department of Finance and Budget of the Flemish government to be able to use the authorization that was granted by deliberation FO Nos. 39/2013 and 40/2013 of December 12, 2013: “The investigation of the committee can therefore be limited to verifying whether the applicant is the legal successor of the Finance Department and Budget of the Flemish government, specifically with regard to the purposes/tasks that were the subject of deliberations FO Nos. 39/2013 and 40/2013. In addition, the Committee also examines whether the applicant offers sufficient guarantees in terms of the data security.” 32“In the context of a transfer of competence, it is important to specify which body takes over the competence, or with the transfer the same purposes or only part of them, as well as providing information regarding security.” 33 Article 5.1 a) GDPR. Personal data must: a) processed in a manner that is lawful, fair and transparent in relation to the data subject ('lawfulness, fairness and transparency”); […] 34 Article 12.1. AVG. The controller shall take appropriate measures to ensure that the data subject receives the information referred to in Articles 13 and 14 information referred to and the communication referred to in Articles 15 to 22 and Article 34 in relation to the processing in a in a concise, transparent, intelligible and easily accessible form and in clear and plain language, in particular when the information is specifically intended for a child. The information shall be in writing or by other means, including, if appropriate, by electronic means, provided. If requested by the data subject, the information may be communicated orally, provided that the identity of the data subject is proven by other means. 35Article 14.1. AVG. Where personal data have not been obtained from the data subject, the controller shall provide the data subject the following information: a) the identity and contact details of the controller and, where applicable, of the representative of the controller; […] Decision on the substance 31/2022 - 17/27 personal data by the defendant 1. In view of the total lack of providing the necessary transparency with regard to Defendant 1, Defendant 2 also did not have the correct information, so that the latter will therefore also have the complainant on 15 February 2021 stated that the communication by defendant 2 of the data of the complainant to defendant 1 happened on the basis of deliberation 18/2015 on municipal administrative sanctions and that at the time of the levying of the parking tax in respect of the complainant, defendant 1 has no 36 legal basis for parking management. The Disputes Chamber decides on the basis of the above that the defendant1 has infringed article 5.1, a) GDPR, article 12.1 GDPR and article 14.1 a) AVG committed because the complainant was not informed about the legal succession of AGB Parko by defendant 1, as a result of which the latter has the capacity of controller has obtained with regard to data processing such as described in deliberation FO no. 02/2016, and on the other hand the resulting ones data processing on behalf of the defendant 1. Deliberation and GDPR 62. In addition, the Litigation Chamber draws attention to the fact that the defendants ignore the fact that the deliberation(s) as such do not constitute an independent legal basis for 37 a data processing. Since the GDPR became applicable, every controller to respect all principles contained therein. More in it in particular, a controller should base itself on one of the six legal bases listed in Article 6 of the GDPR. In the public sector, the legal basis of Article 6.1.c) (processing is necessary to comply with a legal obligation on the controller) or Article 6.1.e) (processing is necessary for the performance of a task of general interest or of a task within the framework of the exercise of public authority vested in the controller) be used. In such cases, the processing must be based on a legal provision that meets the requirements of Article 6.3 GDPR. 63. The deliberations relied on by the defendants were given by the Sectoral Committee of the Federal Government, which has ceased to exist pursuant to Article 109 WOG. although it does not alter the fact that, in accordance with Article 111 WOG, it remains possible to join the aforementioned general authorisations, provided that the person requesting accession submits a written and signed declaration of commitment in which he confirms that he agrees to the terms of the relevant deliberation, to the Information Security Committee, being the body 36 See below under margin nos. 62 ff. 37The GDPR has been applicable since 25 May 2018 (article 99.2 GDPR). Decision on the substance 31/2022 - 18/27 which was established by the legislature to provide deliberations regarding the exchange of personal data or the use of the National Register number. a) With regard to Defendant 1 64. Defendant 1 has yet, albeit late - i.e. after the facts that are the subject of the complaint –, connected to deliberation FO no. 14/2016 of January 21, 2016 38 whereby they due to defendant 2 notification can obtain personal data included in the DIV- directory for the identification of the complainant with a view to levying the parking tax. 65. Not only did entry to deliberation FO No. 14/2016 only take place on 28 August 2020, so well after Defendant 1 has requested the details of the complainant from Defendant 2 and also has gotten. Defendant 1 believes that it can claim that in the context of this accession agreement concluded on September 1, 2020 between defendant 1 and defendant 2, in which is provide that it takes effect retroactively on 1 January 2020, is fully legally valid and relies on deliberation FO no. 02/2016 in its capacity as legal successor stating that the Accession Agreement, upon deliberation FO No. 14/2016, merely constitutes a legal confirmation of a factual situation, since since 1 January 2020 it has been regarded as legal successor believes that it can derive rights from deliberation FO no. 02/2016, of which it claims that it is almost identical to deliberation FO No. 14/2016. 66. The Disputes Chamber can only establish that at the time of the facts defendant 1 nor op based on legal succession (see above, marginals 52 - 61), nor on the basis of deliberation FO no. 14/2016 in the absence of timely accession thereto, was authorized to file with defendant 2nd request personal data of the complainant with a view to his identification in the context of a parking tax. The retroactive effect of the accession agreement is included completely irrelevant. With regard to the Accession Agreement, it should be noted that contrary to what defendant 1 states, this can indeed be done by the Disputes Chamber assessed to the extent that it has an impact on the data processing of third parties who are not a party to that agreement, including in this case the complainant. It is certain that at the time of the facts that occurred on 28 May 2020, it was completely unclear to the complainant that defendant 1 would still enter into an accession agreement on September 1, 2020 in the future close at deliberation FO no. 14/2016, so that at the time of the facts the complainant was not had the information to which he is entitled in accordance with Articles 5.1, a), 12.1 and 14.1 a) GDPR. The Disputes Chamber also notes that deliberation FO no. 14/2016 as such itself also already requires that the persons involved, including the complainant, must in all cases clearly 38Deliberation regarding the one-time authorization to grant municipalities access to the directory of the DIV for the identification of persons liable to pay a parking fee, tax or parking fee due to the use of a vehicle - Revision of the deliberation FO n° 05/2015 of 19 March 2015 Decision on the substance 31/2022 - 19/27 should be informed of the name of the controller, in this case defendant 1, the purpose of the processing, the origin of the collected data and the existence of the right to access and correct the data. The deliberation adds to the fact that a clear provision of information is also particularly important in situations in which it falls less within the reasonable expectations of those involved that his/her personal data are processed. It is clear from the facts that the complainant is not possessed this information, which meant that he also had no knowledge of the legal basis on which the processing of his personal data would be based 5. 1, a) GDPR, Article 6, Article 12.1 GDPR and Article 14.1 a) GDPR. 67. Moreover, a controller, in this case defendant 1, cannot suffice with it to have an authorization and to act solely on the basis of the relevant deliberation based on the assumption that you are entitled to the rights set out in that authorization personal data. After all, the controller has been there since the application are obliged by the GDPR to comply with the obligations imposed on them therein and thus the to test the deliberation that he wishes to make use of against the higher legal standard in order to check whether the communication of personal data is permitted by the relevant deliberation complies with the GDPR. In this sense, the federal government chamber of the Information Security Committee on August 28, 2020 Defendant 1 expressly pointed out that her participation in deliberation FO No. 14/2016 does not release her from her obligations to GDPR compliance. 68. However, it appears from the defense of Defendant 1 that she has completely changed her method of data processing has aligned with the relevant deliberations by being as set out in its conclusion relied entirely on the opinion of defendant 2 regarding the application of the three deliberations 39 on which it relies. For example, Defendant 1 indicates that both before and after the collapse of AGB Parko in the city services has inquired with defendant 2 whether there additional formalities had to be fulfilled. The Disputes Chamber finds that on 2 December 2019 the defendant 1 addressed the defendant 2. Defendant 1 alleges in addition that it will again take up the parking policy itself and already has an agreement with the Crossroads Bank for Vehicles in function of an identification of holders of a 39 Deliberation FO no. 02/2016 of January 21, 2016 concerning the one-off authorization and amendment, as far as the private concessionaires of the Flemish cities and municipalities and the Flemish municipal autonomous agencies, of the deliberation FO no. 17/2010 of 21 October 2010 Deliberation FO no. 18/2015 of 28 May 2015 on the granting of a general authorization to the Cities and Municipalities, the autonomous municipal companies and the Brussels-Capital Parking Agency to process the personal data electronically received from the Directorate of Registration of Vehicles (the "DIV") for the identifiers and the penalty of violators of municipal regulations or ordinances Deliberation FO no. 14/2016 containing the one-time authorization to grant municipalities access to the directory of the DIV for the identification of persons who owe a parking fee, tax or parking fee due to the use of a vehicle are - Revision of the deliberation FO n° 05/2015 of 19 March 2015 Decision on the substance 31/2022 - 20/27 number plate that cities and municipalities, … owe a parking fee, tax or money, citing deliberation FO No. 18/2015 – as stated by Defendant 1 – revised by deliberation FO no. 14/2016. The Disputes Chamber must also determine this that defendant 1 incorrectly establishes a connection between, on the one hand, deliberation FO no. 18/2015 which municipal administrative sanctions and to which it has acceded, and on the other hand deliberationFOnr.14/2016concerning parking fees, taxes and moneyof which they want is not the beneficiary at the moment. Defendant 1 therefore passes on an incorrect representation of the facts to state that deliberation FO No. 18/2015 would have been revised by deliberation FO No. 14/2016. Defendant 2 subsequently fails to notice this and argues that Defendant 1 should not take any further action to undertake. On June 26, 2020, Defendant 2 reconfirms that Defendant 1 has access to the directory of the DIV has, however, without specifying which deliberation it refers to access is based. 69. Defendant 1 hides behind the fact that, despite two previous confirmations because of defendant 2, did not have the correct authorization to consult the DIV- repertory for penalizing violations of the municipal fee regulations in connection with parking, but that the lack of the authorization in question is based on a misunderstanding. She adds that the city could and should rely on the correctness of the outgoing message of DIV confirming in writing that the required authorization is in order by the city 40 used to be . 70. It is only at the moment that Defendant 2 deems it appropriate that Defendant 1 joins deliberation FO no. 14/2016 that defendant 1 also actually does this, however, for quite some time after the facts presented by the complainant have occurred. 71. Defendant 1 then also tries to shift its own responsibility onto the Sectoral committee for the Federal Government and the FPS Policy and Support. So claims defendant 1 that the Sectoral Committee for the Federal Government has given the impression that they as city had joined deliberationFO No. 17/2010 –as later revised by deliberationFO No. 02/2016 – by naming the city as a beneficiary in the approval of the declaration of commitment during the deliberation of FO no. 17/2010, as well as because the FPS Policy and Support Defendant 1 would have been listed in the list of beneficiaries on its website. 72. However, this argument is by no means convincing, since the possible beneficiaries of deliberation FO no. 17/2010 – later deliberation FO no. 02/2016 – in no case the municipality itself, but only the private concession holders and municipal privatized agencies. The entry to which respondent 1 refers is: “Parko AGB/Stad Kortrijk”, 40Decision of the Board of Mayor and Aldermen dated 22 February 2021 regarding the objection regarding tax on the parking, as submitted by the complainant. Decision on the substance 31/2022 - 21/27 where the mention of the name of the city only gives an indication where the actual beneficiary, namely AGB Parko, is active. Defendant 1 is unable to do so deduce that she was a self-beneficiary with respect to this deliberation, in view of the clear in the deliberation defined target group of possible beneficiaries, which does not include municipalities belong. 73. It follows from all of the above elements that the Disputes Chamber has found an infringement of the Articles 5.2 and 24 GDPR in respect of Defendant 1. b) In relation to Defendant 1 and Defendant 2 74. A controller is obliged to comply with data protection principles and must be able to demonstrate compliance with these principles (accountability - article 5.2 GDPR). Defendant 1 is a data controller in relation to the personal data that it requests and obtains on behalf of Defendant 2. Defendant 2 is itself a controller with regard to the personal data it provides to defendant 1. Although defendant 2 denies that he is the defendant because the complaints would only are directed against Defendant 1, there is no doubt whatsoever about the fact that the Complainant not only against Defendant 1, but also against Defendant 2 because of the finding that the complainant expressly states that his privacy was violated because both defendant 1, and Defendant 2 used an incorrect authorization as the basis to identify him to the on the basis of his license plate via the DIV directory for which defendant 2 de controller. There can be no doubt that the complainant is not acting alone against Defendant 1, but also against Defendant 2, since the identification of the holder of the number plate is only possible if defendant2 provides the necessary personal data for this purpose to the defendant 1. In other words: the identification of the complainant on the basis of his number plate is only possible if defendant 1 requests the identification data from Defendant 2 and Defendant 2 subsequently also provide the Defendant with identification data 1. Without the provision by defendant 2 of the identification data concerning the complainant to defendant 1 was an identification of the complainant based on his number plate simply not been possible. It is therefore in this sense that the complainant, as evidenced by the documents of the file, turns several times to defendant 2. The complaint concerns in particular the identification by means of the number plate of the vehicle in the complainant's name registered and is therefore undeniably directed against both defendant 1 and defendant 2. 75. Both defendants base their claims on the actions performed by each of them data processing (defendant 1 with regard to the processing of the requested and data obtained from defendant 2; defendant 2 with regard to the provision of the data to the defendant 1) on Article 6.1 e) GDPR. Article 6.1 GDPR which is the concretization of it principle of lawfulness as referred to in Article 5.1 a) GDPR, prescribes that all processing must be based on a legal basis. This means that before starting the processing activities the controller must determine which of the six 41 legal bases applies and for what specific purpose. It appears from the file not that the complainant was informed of the legal basis on which the defendants relied currently appealed in the proceedings before the Disputes Chamber, in particular the necessity of the processing for the ‘performance of a task in the public interest’ (article 6.1 e) GDPR). This legal basis is only invoked after the facts and therefore after the processing of the personal data has taken place. Consequently, the defendants have personal data of the complainant processed against his expectations and therefore without any provision of information by the defendants prior to data processing. In this regard, the Disputes Chamber notes that this provision of information is not only the legal basis (article 14.1 c) GDPR), but all information as stipulated in article 14.1 GDPR in order to comply with the transparency principle (article 5.1 a) GDPR). 76. Both defendants simply relied on the deliberations granted by the Sectoral Committee for the Federal Government without any review against the requirements of the GDPR requirements since its entry into force. 77. Based on the factual elements of the file, it appears that neither Defendant 1 nor Defendant 2 has complied with its accountability in relation to the principle of lawfulness, fairness and transparency, which the Disputes Chamber decides that an infringement of Articles 5.2 and 24 GDPR was committed on the part of both defendants. 78. The Disputes Chamber specifies that a deliberation has no legal significance whatsoever the light of the GDPR. A deliberation can at most be regarded as an opinion of the Board IVC, being a body that can be distinguished from the controller who recipient of the deliberation. Such deliberation discharges the controller, in the present case both defendant 1 and defendant 2, not of their obligations under the GDPR, including in particular their accountability (article 5.2 in conjunction with 24 GDPR). 79. Within the current legal framework, and in particular pursuant to Article 35/1 of the Law of 15 August 2012 establishing and organizing a federal service integrator and the law of September 5, 2018 establishing the Information Security Committee, the IVC is competent to provide consultations regarding certain communications of personal data. 41 In accordance with Article 13(1)(c) and/or Article 14(1)(dc), the controller must notify the person concerned. Decision on the substance 31/2022 - 23/27 80. Article 35/1, § 4, of the Federal Services Integrator Act specifies that “the deliberations of the information security committee with reasons and a general binding scope between the parties and towards third parties”. 81. The preparatory works of the Law of 5 September 2018 state that “it [is] crucial thatdecisionswithcommonbindingscopecanbepromulgatedintheformof deliberations [so that] all actors [have] legal certainty about the fact that a data sharing is legally permitted if the conditions contained in the deliberation are correct comply” 82. The Litigation Chamber understands the importance of obtaining legal certainty for actors prior to any processing of personal data. However, she believes it issuing binding decisions regarding the processing of personal data with the philosophy and provisions of the GDPR. This is particularly important since these decisions directly affect the rights of third parties to the protection of their personal data. 83. In particular, the Litigation Chamber refers to the accountabilitycontained in article 5.2 in conjunction with article 24GDPR, which is one of the central pillars of the GDPR constitutes and according to which controllers must be able to demonstrate that they process personal data in accordance with the processing principles personal data contained in Article 5.1 GDPR. 84. The Disputes Chamber emphasizes that such a system therefore creates an ambiguous situation for controllers, such as in this case defendant 1 and defendant 2, expect it on the basis of a consultation or to be able to obtain notification of data, or to be able to provide data from the DIV directory, but on the other hand on the basis of the accountability principle, are obliged to take proactive action themselves in order to ensure that the principles governing the processing of personal data have been respected and must also be able to demonstrate this. All this entails a risk of de-responsibility the controllers, which is totally incompatible with the principles of the GDPR and is contrary to articles 5.2 in conjunction with 24 GDPR. 85. The Disputes Chamber establishes that a deliberation/deliberations in itself is not a basis can form for processing. The Disputes Chamber underlines that a deliberation or participation in a deliberation for the person concerned controller is never allowed an obligation to communicate personal data imply. After all, the latter retains complete freedom to make its own decision in this regard to make an opportunity judgement. Substantive decision 31/2022 - 24/27 86. Furthermore, the Disputes Chamber emphasizes that after a deliberation by the IVC, all principles of the GDPR will of course continue to apply, including the accountability principle (articles 5.2 in conjunction with 24 GDPR). 87. Finally, the Disputes Chamber points out that the defendants were offered the option of na the taking place of the hearing, to take an explicit position with regard to the mutual relationship of deliberations to the GDPR, in particular the principle of accountability, this with in order to ensure full respect for the rights of defence. 88. Defendant 2 has made use of that possibility, but confines itself to stating that it as a federal public service on the grounds that the legislature is presumed to be higher not wanting to violate legal norms such as Union law, and on the basis of it principle of legal certainty, it may be assumed that the legal instruments that the Belgian law and regulations provide it, are in conformity with the GDPR. She doesn't consider it her job or authority to question, defend or not apply those legal instruments. 89. Once again, the Disputes Chamber must establish that defendant 2 fully relies on the instrument of the deliberation and is limited to this without any further assessment against the AVG, notwithstanding the IVC itself also states that participation in a deliberation is the does not release the controller from its obligations to comply with the GDPR. This applies obviously not only for the acceding party, but for each controller, that is also defendant 2. 90. Respondent 1 has chosen not to respond to the request of the Disputes Chamber to take a position on the question posed in the letter of October 29, 2021, as before formulated during the hearing, because of its incompatibility with the rights of defence, as well as the general principles of good administration. Defendant 1 continues by stating that the Litigation Chamber does not exceed the limits set by the complainant limits of the proceedings and cannot pass judgment ultra petita. 91. Notwithstanding the additional clarification that the Litigation Chamber gave to Defendant 1 regarding the question asked during the hearing and repeated in the letter dated October 29, 2021, Defendant 1 persists in her refusal to take a stand. Defendant 1 argues discrepancies between the explanation at the hearing, the question in the letter of 29 October 2021 and the additional clarification in the letter of November 24, 2021. It goes without saying that It goes without saying that the Disputes Chamber subsequently answered the question that was discussed during the hearing formulated as accurately as possible in the letter of October 29, 2021, precisely with a view to respect for the rights of defence. When defendant 1 turns out to be even more precise necessary, the Disputes Chamber will respond to this in order to offer defendant 1 the opportunity to be rights of defense in full and the Litigation Chamber refers to the earlier Decision on the substance 31/2022 - 25/27 takenpositiononthereindecisions34/2020of23 June 2020 .Erkandan 42 then not be argued by Defendant 1 that for the sake of any alleged discrepancy the question would not be clear, nor that the Litigation Chamber would not have indicated what specific objections it would have to see a possible non-conformity. Defendant 1 maintains that during the run-up to the hearing of October 29, 2021, she has no some indication has been given that there might be a shortcoming due to the legal basis for data processing in the context of parking fees and taxes. 92. According to Defendant 1, it cannot be expected to analyze all of them possible points and hypotheses she can think of to check their agreement with the assess articles from the GDPR mentioned in the letter. Well, the Litigation Chamber finds that Defendant 1 hereby once again denies her accountability, which she also immediately does confirms that the data processing is fully based on the data invoked by it deliberation(s) which it believes it can use as a legal basis (qoud non) and fails to deliberation(s) against the requirements of the GDPR. The legal basis forms from the outset of the procedure is the bottleneck for the complainant and has been the direct reason for the filing his complaint. The complainant has moreover expressly stated in his statement of reply that the defendants have violated articles 5 and 6 GDPR. argue that when assessing the legal basis, the Disputes Chamber should rule ultrapetita doing. 93. Also according to Defendant 1, who agrees with the position of Defendant 2, a supervisory authority does not require an administrative authority to verify legality of a regulatory framework when it has not established this framework itself, but merely appeals to, and when not even the beginning of evidence of a non-conformity becomes raised by the complainant or the supervisory authority itself. The Litigation Chamber notes that respondent 1 reformulates the question as asked by the Disputes Chamber as a question about the conformity of the current Belgian regulations regarding the processing of personal data with the GDPR, why the defendants state that it does not belong to them to the legality of the existing Belgian regulation on the processing of to question, defend or (knowingly) not apply personal data. 42https://www.dataprotectionauthority.be/publications/besluit-ten-gronde-nr.-34-2020.pdf, in particular marginal nos. 67-78. 43 In the statement of reply, the complainant states: “A fortiori, the defendants have, inter alia, but not exclusively, violated Articles 5 and 6 GDPR. Nor on the payment invitation with the determination, nor on the tax bill for additional payment for parking, it is stated that my personal data is being processed became. There is no trace anywhere of the processing of personal data or of privacy legislation.” Decision on the substance 31/2022 - 26/27 94. It is clear that the Litigation Chamber has not asked for any review of the Belgian Regulations concerning GDPR. It has been requested, as clarified repeatedly, or the defendants are of the opinion that it is sufficient for them to have a deliberation in order to can proceed to the processing of personal data of the data subjects, and whether they believe that they thus have a legal basis within the meaning of Article 6.1 GDPR, or whether they op still have obligations based on their accountability under the GDPR. Leave this point both defendants unanswered, notwithstanding they do have the opportunity to take a position on this matter and to assert their rights of defence. She however, both explicitly chose not to take a position. 95. In the circumstances outlined above, in particular the fact that possible ambiguities in the Belgian regulatory framework are mainly the result of choices of a regulatory nature, it is however, it is appropriate for the defendants not to impose any sanction other than the order de processing in accordance with the GDPR, as set out below. III. Publication of the decision 96. Given the importance of transparency with regard to decision-making by the Litigation Chamber, this decision will be published on the website of the Data Protection Authority. However, it is not necessary for this to include the identification data of the complainant are disclosed directly, however, stating the identification data of the defendants in view of the public interest of the present case decision, on the one hand, and the inevitable re-identification of the defendants in case of pseudonymization, on the other hand. Decision on the substance 31/2022 - 27/27 FOR THESE REASONS, the Disputes Chamber of the Data Protection Authority decides, after deliberation, on the basis of art. 100, §1, 9° WOG, to order the defendants that the processing becomes compliant brought with Articles 5.1, a); 12.1. and 14.1 a) GDPR, as well as articles 5.2 and 24 GDPR, namely within a period of two months, and the Data Protection Authority same deadline. Against this decision, pursuant to Art. 108, §1 WOG, appeals are lodged within a term of thirty days, from the notification, at the Marktenhof, with the Data Protection Authority as defendant. (Get). Hilke Hijmans Chairman of the Litigation Chamber