CC - 8110
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| CC - 8110 | |
|---|---|
 | |
| Court: | CC (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 10 of the Belgian Constitution Article 11 of the Belgian Constitution Article 30 of the Belgian Constitution Article 57 of the law of 3 December 2017 |
| Decided: | 28.11.2024 |
| Published: | |
| Parties: | Autorité de protection des données Service Public Fédéral Finances |
| National Case Number/Name: | 8110 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | French |
| Original Source: | Cour constitutionnelle (in French) |
| Initial Contributor: | elu |
After a change of language of DPA proceedings from Flemish to French, two questions about the constitutionality of the possibility to changing language during proceedings present in the DPA regulation were brought before the Constitutional Court.
English Summary
Facts
The data subject, a Flemish-speaking Belgian citizen, advanced a complaint, in Flemish, with the Belgian DPA against the controller. The complaint was declared admissible by the DPA and, on 8 December 2022, the parties were informed of the advancement of proceedings, mentioning, in Flemish, the possibility of changing the language of proceedings. Thus, the data subject asked, in Flemish, to change the language of procedure to French, as her lawyer, substituting her previous Flemish-speaking lawyer, was Francophone. The Investigation Chamber of the DPA accepted this request.
The controller appealed against this decision of the Investigation Chamber which, in turn, retreated the decision on the merits, but upheld the change of language from Flemish to French.
The controller introduced an appeal against this last decision before the Market Court (a bilingual section of the court of appeal) in Brussels, subjecting two questions for review:
1. Is Article 57 of the law of 3 December 2017 (on the establishment of the DPA), compatible with Article 30 of the Constitution, in that it leaves the DPA itself responsible for determining the use of languages in the procedures carried out before it?
2. Is Article 57 of the law of 3 December 2017, compatible with Articles 10, 11 and 30 of the Constitution, in that it does give rise to a difference in treatment between the people concerned by an administrative procedure before the DPA and the persons concerned by an administrative procedure before the Competition Authority?
With Article 30 of the Constitution stating that “the use of languages spoken in Belgium is optional; only the law can rule on this matter, and only for acts of the public authorities and for judicial affair”.
Holding
In relation to the first question, the court considered that Article 30 of the Constitution allows the legislator to manage the use of languages when enacting public acts and for court decisions. The court held that the discretion granted to the DPA with regards to the choice of language of proceedings through Article 57 of the law of 3 December 2017 lacks essential regulatory elements.
Therefore, there is an overly-broad margin of maneuver as per the change of the languages of the proceedings in front of the DPA. Consequently, Article 57 of Law of 3 December 2017 violates Article 30 of the Constitution and the legislator shall remedy the found unconstitutionality. The Court also advises to apply by analogy the laws on the use of languages in administrative matters to these procedures.
The court considered it unnecessary to delve into the second question referred.
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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.
Constitutional Court Judgment No. 144/2024 of 28 November 2024 Case number: 8110 At issue: the preliminary questions relating to Article 57 of the law of 3 December 2017 “establishing the Data Protection Authority”, raised by the Brussels Court of Appeal. The Constitutional Court, composed of Presidents Luc Lavrysen and Pierre Nihoul, and Judges Thierry Giet, Joséphine Moerman, Michel Pâques, Yasmine Kherbache, Danny Pieters, Sabine de Bethune, Emmanuelle Bribosia, Willem Verrijdt, Kattrin Jadin and Magali Plovie, assisted by Registrar Nicolas Dupont, presided over by President Luc Lavrysen, after deliberation, hereby delivers the following judgment: I. Subject matter of the questions referred for a preliminary ruling and procedure By judgment of 8 November 2023, a copy of which was received at the Court Registry on 20 November 2023, the Brussels Court of Appeal referred the following questions for a preliminary ruling: “1. Is Article 57 of the Law of 3 December 2017 establishing the Data Protection Authority compatible with Article 30 of the Constitution, in that it leaves it to the Data Protection Authority itself to determine the use of languages in the proceedings before it (in particular, determining the specific needs of a case, the needs that are taken into account, the criteria by which the needs are balanced against each other, a policy on the use of languages, etc.)? 2. Is Article 57 of the Law of 3 December 2017 establishing the Data Protection Authority compatible with Articles 10, 11 and 30 of the Constitution, in that it creates a difference in treatment between, on the one hand, persons concerned by an administrative procedure before the Data Protection Authority, which may impose sanctions – including administrative fines – and, pursuant to the aforementioned provision, determine and modify at its discretion the language of the procedure, and, on the other hand, persons concerned by an administrative procedure before the Competition Authority, ECLI:BE:GHCC:2024:ARR.144 2 which may impose sanctions – including administrative fines – but in respect of which specific legislative rules concerning the language of the procedure and the modification thereof have been laid down in Article IV.92 of the Code of Economic Law and in the laws on the use of languages in administrative matters, coordinated on 18 July 1966? ". Briefs and briefs in response were submitted by: - the FPS Finance, assisted and represented by Mr Frederic Debusseré, Mr Geert Somers and Mr Bernd Fiten, lawyers at the Brussels Bar; - the Data Protection Authority, assisted and represented by Mr Elke Cloots, Mr Joos Roets and Mr Claire Buggenhoudt, lawyers at the Antwerp Bar; - the Council of Ministers, assisted and represented by Mr Jürgen Vanpraet, lawyer at the West Flanders Bar. By order of 17 July 2024, the Court, after hearing Judge-Rapporteurs Danny Pieters and Kattrin Jadin, decided that the case was ready for hearing, that no hearing would be held unless a party requested, within seven days of receipt of notification of that order, to be heard, and that in the absence of such a request, the debates would be closed at the end of that period and the case would be deliberated. Following the request of the Council of Ministers to be heard, the Court, by order of 25 September 2024, set the hearing for 23 October 2024. At the public hearing of 23 October 2024: - appeared: . Mr Frederic Debusseré, for the FPS Finance; . Mr Elke Cloots, also loco Mr Joos Roets and Mr Claire Buggenhoudt, for the Data Protection Authority; . Mr Jürgen Vanpraet, for the Council of Ministers; - the reporting judges Danny Pieters and Kattrin Jadin have reported; - the aforementioned lawyers have been heard; - the case has been adjourned for deliberation. The provisions of the Special Act of 6 January 1989 on the Constitutional Court relating to procedure and the use of languages have been applied. ECLI:BE:GHCC:2024:ARR.144 3 II. The facts and the previous procedure On 23 March 2022, Marleen Coppens filed a complaint in Dutch with the Data Protection Authority against the Federal Public Service Finance. On 29 March 2022, this complaint was declared admissible, in Dutch, by the frontline service of the Data Protection Authority and, on 19 April 2022, it was declared prima facie well-founded, also in Dutch, by the Litigation Division of the Data Protection Authority. On 2 May 2022, the Federal Public Service Finance requested, in Dutch, the Litigation Division of the Data Protection Authority to continue the substantive processing of the complaint. As part of this substantive processing, the Litigation Division sent the parties a timetable of conclusions on 8 December 2022, stating, in Dutch, that a defendant may, within a period of fourteen days, object to the processing of the case in Dutch. By letter of 19 December 2022, Marleen Coppens requested, in Dutch, to change the language of the proceedings to French, given that a French-speaking lawyer had in the meantime succeeded her Dutch-speaking counsel. On 22 December 2022, the Litigation Chamber of the Data Protection Authority granted this request. After the Federal Public Service Finance filed an appeal against this decision with the Brussels Court of Appeal, Market Court section (hereinafter: the Market Court), and the Market Court, by decision of 8 March 2023, suspended the execution of the decision of the Litigation Chamber of the Data Protection Authority of 22 December 2022, the Litigation Chamber announced, by letter of 28 March 2023, that it was retracting its decision. In the same letter, however, it indicated that it would maintain the change of the language of the procedure to French. On 11 April 2023, the Federal Public Service Finance lodged an appeal against this latest decision with the Procurement Court. Before ruling on the merits, the Procurement Court considers that it is appropriate to refer the questions referred above to the Court for a preliminary ruling. III. In law - A - As to the admissibility of the Federal Public Service Finance’s submission A.1. The Data Protection Authority argues that the submission of the Federal Public Service Finance must be excluded from the proceedings. In its view, the Federal Public Service Finance, which falls under the federal executive branch, does not have a legitimate functional interest in alleging in law that a legislative provision enacted by the federal legislature is unconstitutional. As to the preliminary questions As to the scope of the preliminary questions A.2. The Council of Ministers argues that the Court must limit its examination of the questions referred for a preliminary ruling to the situation that arises in the proceedings before the court a quo, namely that of a complainant who lodges a complaint in Dutch with the Data Protection Authority and who, at a later stage of the proceedings before the Contentious Chamber, can still obtain that the proceedings be conducted in French. A.3. The Data Protection Authority argues that the Court must take into account the consequences of its decision for all proceedings before the Data Protection Authority. ECLI:BE:GHCC:2024:ARR.144 4 As regards the first question referred for a preliminary ruling A.4.1. The Federal Public Service Finance considers that Article 57 of the Act of 3 December 2017 “establishing the Data Protection Authority” (hereinafter: the Act of 3 December 2017) is not compatible with Article 30 of the Constitution. It states that under Article 30 of the Constitution, the use of languages must be regulated by the legislature and that the latter may not under any circumstances leave it to an administrative authority such as the Data Protection Authority to regulate, on an individual or regulatory level, the use of languages. However, Article 57 of the Act of 3 December 2017 leaves the Data Protection Authority complete freedom to regulate the use of languages in proceedings before the Litigation Chamber. Indeed, it may determine the language at its discretion according to the specific needs of the case. The legislature has not further restricted this margin of appreciation by determining, for example, which needs must be taken into account and how these needs must be balanced against each other. Consequently, the provision in question is insufficiently precise, clear and predictable for the individual. The Data Protection Authority has then itself, in violation of Article 30 of the Constitution, developed a policy that it in fact uses as a regulation. The fact that similar provisions exist before the courts does not affect the above either, given that the Data Protection Authority is not a court and it has not been established that these provisions are compatible with Article 30 of the Constitution. A.4.2. According to the Federal Public Service Finance, this unconstitutionality has the effect that the use of languages in proceedings before the Litigation Chamber of the Data Protection Authority is exclusively regulated by the laws on the use of languages in administrative matters, coordinated on 18 July 1966 (hereinafter: the laws on the use of languages in administrative matters). Given that, in the case before the court a quo, the complainant is an individual who filed a complaint in Dutch, it is more precisely Article 41, § 1, of the laws on the use of languages in administrative matters that is applicable. A.5.1. The Council of Ministers argues firstly that the court a quo is basing itself on an erroneous interpretation of the provision in question. Article 57 of the law of 3 December 2017 does not give the Data Protection Authority complete freedom to regulate the use of languages in proceedings before the Litigation Chamber and to pursue a policy in this area. Indeed, the Data Protection Authority must apply Articles 40 to 45 of the laws on the use of languages in administrative matters and can only apply the provision in question to the extent that the application of these provisions of the laws on the use of languages in administrative matters results in a conflict in which more than one national language is used. The provision in question is a complementary rule to the laws on the use of languages in administrative matters. It is not a lex specialis. In the proceedings before the court a quo, the application of the laws on the use of languages in administrative matters does not result in a conflict, so that Article 57 of the Law of 3 December 2017 is not applicable. In contradiction with Article 41, § 1, of the laws on the use of languages in administrative matters, the Data Protection Authority changed the language of the proceedings to French. A.5.2. According to the Council of Ministers, Article 57 of the Law of 3 December 2017 is also only compatible with Article 30 of the Constitution in the aforementioned interpretation. Indeed, the Data Protection Authority can only make a linguistic choice exceptionally and in an individual case, namely when the application of the laws on the use of languages in administrative matters results in a situation in which several national languages are applicable. However, in this case, this situation does not arise. A.6.1. The Data Protection Authority first notes that Article 57 of the Law of 3 December 2017 is a lex specialis in relation to the laws on the use of languages in administrative matters. The legislator thereby intended to give the Data Protection Authority, like the Competition Authority, the necessary flexibility to determine the language of the procedure according to the needs of the case. The laws on the use of languages in administrative matters constitute an overly rigid framework that is not suited to the procedures that are conducted before the Data Protection Authority. A.6.2. The Data Protection Authority then argues in its main order that Article 57 of the Law of 3 December 2017 is compatible with Article 30 of the Constitution. According to her, Article 30 of the Constitution does not prohibit a court or administrative authority from being empowered to determine, in a discretionary manner, the language to be used in individual cases, on the basis of legal criteria, such as the specific needs of the case. The principle of legality contained in Article 30 of the Constitution relates exclusively to the fact of regulating. Given that the provision in question does not empower one to regulate, there is no question of a violation. Moreover, Article 30 of the Constitution does not preclude linguistic regulation providing that only one language is to be used in a procedure or investigation. Individual linguistic freedom may be restricted in the interest of the proper administration of justice. ECLI:BE:GHCC:2024:ARR.144 5 A.6.3. The Data Protection Authority notes in the alternative that the Court can at most find an unconstitutional gap that must be filled by the legislature. Indeed, a possible unconstitutionality can be remedied in various ways. Furthermore, Article 30 of the Constitution expressly requires the intervention of the legislature. According to the Data Protection Authority, the thesis of the Council of Ministers that Article 57 of the Law of 3 December 2017 must be read in conjunction with Articles 40 to 45 of the laws on the use of languages in administrative matters cannot be followed under any circumstances. First of all, the legislature has expressly decided not to apply the rigid framework of the laws on the use of languages in administrative matters to the Data Protection Authority. Furthermore, this rigid framework of administrative language laws is not suitable for adversarial proceedings involving several parties, so that it would undermine the efficiency and coherence of the procedure and the principle of legal certainty and the principle of substantive legality, contained in Article 30 of the Constitution, would be violated. Since administrative language laws do not allow for the real procedural needs of the parties concerned to be taken into account, the rights of the defence are also at risk of being compromised. Finally, the decisions of the Data Protection Authority are at risk of being systematically annulled by the Market Court due to the uncertainty surrounding the language regime provided for in administrative language laws and the severe sanctions contained in these laws. Such legal uncertainty is not compatible with the full effect of the provisions of Union law on data protection and free movement. A.6.4. Finally, in an infinitely subsidiary order, the Data Protection Authority requests that the following preliminary question be referred to the Court of Justice of the European Union: ‘Must Article 8(1) and (3) and Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union, Article 51(1) and (2), Article 57(1)(a) and (f) and (2), Article 58(2), Article 77 and Article 78(1) of the GDPR, and Articles 20, 21, 45, 49, 56 and 63 of the TFEU be interpreted as precluding the application of a national language regime such as that at issue in the main proceedings, which is absolutely precluded that a national supervisory authority within the meaning of the GDPR uses as a language of the proceedings a language other than that of the complaint and whose specific requirements in the context of proceedings before that national supervisory authority are furthermore imprecise, and this under penalty of the nullity, to be pronounced ex officio by the judge, of all procedural documents drawn up in the incorrect language? ". With regard to the second preliminary question A.7.1. The Council of Ministers notes firstly that the court a quo is based on an erroneous interpretation in that it held that the Data Protection Authority is entirely free to determine the language. Article 57 of the Law of 3 December 2017 must in fact be read in conjunction with Articles 40 to 45 of the laws on the use of languages in administrative matters. Only if the application of these provisions results in a linguistic conflict can the Data Protection Authority determine the language according to the needs of the case. A.7.2. He then argues that, in this interpretation, Article 57 of the Law of 3 December 2017 does not violate the principle of equality and non-discrimination. In this interpretation, there is no difference in treatment between the complainant who has lodged a complaint with the Data Protection Authority and the complainant who has lodged a complaint with the Competition Authority. Neither of them has the possibility of requesting to change the language of the procedure. This is all the more so when the language of the procedure is the language in which the complaint is drawn up. Furthermore, the categories of persons involved are not comparable. The Competition Authority can only impose administrative fines on the undertakings and associations of undertakings concerned, while the competence of the Data Protection Authority is not limited to these categories of persons. At the very least, to the extent that there is still a difference in treatment between comparable categories of persons, this difference in the personal scope of application reasonably justifies the difference in treatment, which is based, where appropriate, on an objective criterion, namely the purpose of the case and the persons concerned. A.8. The Data Protection Authority first repeats that the laws on the use of languages in administrative matters are not applicable to the proceedings before it. It then notes that the categories of persons concerned are not comparable. They are completely different public authorities that were created to ensure compliance with different regulations. The Data Protection Authority ensures that ECLI:BE:GHCC:2024:ARR.144 6 the right to data protection, which aims to protect a fundamental right, is respected, while the Competition Authority applies competition law, which does not in principle concern a fundamental right. It finally notes that the difference in treatment is based in any case on an objective criterion, namely the body before which the procedure is conducted, and that it is reasonably justified. The objective of determining the language of the procedure in accordance with the specific needs of the case is legitimate and the difference in treatment in question does not produce disproportionate effects, given that the rights of the parties concerned are not limited disproportionately. A party who considers itself aggrieved by the choice of language may also bring an appeal to the Market Court, which has full jurisdiction. A.9. The Federal Public Service Finances defers to the wisdom of the Court with regard to the second preliminary question. As to the maintenance of the effects A.10. If the Court were to rule that Article 57 of the Law of 3 December 2017 is unconstitutional, the Data Protection Authority requests it to maintain the effects until the legislature has adopted new language regulations. According to the Authority, maintenance is necessary in order to guarantee legal certainty and not to compromise the effective monitoring of the application of data protection rules. A.11. The Federal Public Service Finance considers that the effects cannot be maintained with regard to the decision it is contesting, future proceedings that will be brought before the Data Protection Authority and all proceedings brought before the Litigation Chamber of the Data Protection Authority in which no decision has yet been taken concerning the use of languages. Indeed, it would be necessary to prevent the Federal Public Service Finance from taking any advantage of the finding of unconstitutionality in the case submitted to the court and in any future proceedings. Furthermore, the finding of unconstitutionality would not result in a lack of language legislation, given that the laws on the use of languages in administrative matters are applicable in the absence of a derogation regime. Finally, it notes that the law of 25 December 2023 "amending the law of 3 December 2017 establishing the Data Protection Authority" does not provide for a new language regime. - B - As to the provision in question and its context B.1. The questions referred for a preliminary ruling concern the language regime for proceedings before the Data Protection Authority. B.2.1. Article 57 of the law of 3 December 2017 "establishing the Data Protection Authority" (hereinafter: the law of 3 December 2017), which concerns both the procedure before the inspection service and the procedure before the Litigation Chamber, provides: "The Data Protection Authority shall use the language in which the procedure is conducted according to the specific needs of the case". ECLI:BE:GHCC:2024:ARR.144 7 B.2.2. According to the explanatory memorandum, this language regime was chosen "following the example of the Competition Authority" (Doc. parl., Chamber, 2016-2017, DOC 54-2648/001, p. 39). B.2.3. The use of languages in proceedings before the Competition Authority was then regulated in Article IV.83 of the Code of Economic Law, as inserted by Article 4 of the law of 3 April 2013 "inserting Book IV 'Protection of Competition' and Book V 'Competition and Price Developments' into the Code of Economic Law and inserting the definitions specific to Book IV and Book V and the implementing provisions of the law specific to Book IV and Book V, into Book I of the Code of Economic Law". Article IV.83 of the Code of Economic Law provided: “The investigation is carried out and the draft decision of the auditor’s office is drawn up in the language of the Region in which the company that is the subject of the investigation is established. In the event of multiple companies, the language used is that of the Region in which the majority of them is established. In the event of parity, one of the languages used in Belgium will be used according to the needs of the case. If the company is established in the Brussels Region, the language, Dutch or French, is chosen by the complainant or by the body that initiated the investigation. The company that is the subject of the investigation and that is established in the Brussels Region may nevertheless request that the investigation be carried out and that the procedure be continued in the other language, French or Dutch. The decision on changing the language of the procedure is taken by the Auditor General. The company or association of companies concerned may appeal against his decision before the President within three working days of notification of the decision. He hears the company or association of companies concerned as well as the Auditor General or the auditor he delegates within five working days of receipt of the appeal and makes a decision within five working days after hearing the parties. This decision is not subject to separate appeal." Currently, the use of languages in proceedings before the Competition Authority is regulated by Article IV.92 of the Code of Economic Law, which provides: "§ 1. Without prejudice to paragraph 3, the investigation shall be conducted and the case judged in the language of the language region where the undertaking or association of undertakings subject ECLI:BE:GHCC:2024:ARR.144 8 of the investigation has its registered office or, in the case of a foreign undertaking or association of undertakings, has an establishment. If the undertaking or association of undertakings is established in the bilingual Brussels-Capital Region or has no establishment in Belgium, the language, French or Dutch, shall be chosen by the prosecutor. However, the undertaking or association of undertakings has the right to have the investigation conducted and the case judged in the other language. The request for a change of language must, under penalty of inadmissibility, be submitted in writing to the auditor no later than ten working days following the first day of the search, or, if there is no search, ten working days after receipt of the first request for information. The change of language only applies for the future. When several companies and associations of companies are the subject of the investigation, when it is opened, the language of the linguistic region where the majority of these companies and associations of companies have their registered office or establishment is used. For companies and associations of companies having their registered office in the bilingual region of Brussels-Capital or which do not have an establishment, the language taken into consideration to determine this majority is set in accordance with paragraph 2. In the event of parity, French or Dutch is used at the choice of the auditor. § 2. Without prejudice to paragraph 3, all acts, written observations, documents and decisions drawn up in the context of the investigation and decision-making procedure, by the auditor, the auditor general, the Competition College, the parties concerned, the notifying parties and third parties heard by the Competition College shall be drawn up in the language set out in accordance with paragraph 1. § 3. The following special rules apply with regard to the use of languages: 1° natural persons shall be questioned and shall use for all their oral and written statements as well as their written observations French, Dutch or German, according to their choice or a language that the auditor or the president of the Competition College authorises them to use during the investigation and the procedure before the Competition College respectively; 2° the Belgian Competition Authority shall forward the parts of the complaints and the proposed decision that concern a natural person in particular, in French, Dutch or German, depending on the language choice of that person; 3° complaints shall be drafted in the language of the linguistic region in which the complainant’s head office, establishment or domicile is established or, in the event that the complainant does not have a head office, establishment or domicile in Belgium, in French or Dutch, depending on the complainant’s choice; 4° requests for interim measures shall be drafted in the language of the linguistic region in which the undertakings or associations of undertakings against which measures are requested have their head office or establishment; where the undertaking or association of undertakings against which measures are requested is not established in Belgium, the request shall be drafted in French or Dutch; ECLI:BE:GHCC:2024:ARR.144 9 5° concentrations shall be notified in French or Dutch, at the choice of the notifying parties; the investigation shall be conducted and the concentration shall be judged in the language of the notification; 6° full or summary applications for leniency, applications for immunity, declarations made with a view to obtaining leniency, as well as applications for markers shall be drafted in French, Dutch, German, or in another language of the European Union agreed between the auditor and the applicant for leniency or immunity. The evidence shall be filed in its original language. If this language is not French, Dutch or German, the Auditor General, the auditor or the President of the Competition College may request that it be translated into one of these national languages; 7° the documents attached to the acts and written observations are filed in their original language; if this language is not French or Dutch, the Auditor General, the Auditor or the President of the Competition College may require translation into French or Dutch, failing which they will be excluded from the file; 8° the following are drawn up in the language of the linguistic region in which the company or association of companies has its establishment concerned: a. requests for information and decisions to require information as well as the responses; b. mission orders, search warrants and reports of searches, seizures and affixing of seals; c. reports of findings referred to in Article IV.40/1, paragraph 1; 9° in the case where the establishment concerned is established in the bilingual region of Brussels-Capital or where the company or association of companies does not have an establishment in Belgium, the documents referred to in 8° shall be drawn up in the language chosen by the auditor, without prejudice to the application of paragraph 1, subparagraph 2; 10° the uniform instrument by means of which the requests referred to in Article IV.78/2 and Article IV.78/4 are addressed to the Belgian Competition Authority shall be drawn up in French, Dutch or German, or in another language of the European Union agreed between the Auditor General and the national competition authority that made the request. The act to be notified or the decision allowing the forced execution of the fine or periodic penalty payment attached to the uniform instrument shall be communicated in its original language. If this language is not French, Dutch or German, the Auditor General may request a translation into one of these national languages or into another language of the European Union agreed with the national competition authority making the request. B.3.1. Following the referral to the Court, the law of 3 December 2017 was amended by the law of 25 December 2023 "amending the law of 3 December 2017 establishing the Data Protection Authority" (hereinafter: the law of 25 December 2023). However, this law did not amend the provision in question. ECLI:BE:GHCC:2024:ARR.144 10 However, Article 11, § 1, 3°, of the law of 3 December 2017, as replaced by Article 10 of the law of 25 December 2023, currently provides that the Data Protection Authority may provide in its internal regulations "rules concerning the use of languages". In addition, Article 99, paragraph 3, as inserted by Article 51 of the Law of 25 December 2023, provides that the debates take place “in the language of the procedure, as chosen by the parties, within the limits set by Article 41 of the Coordinated Laws of 18 July 1966 on the use of languages in administrative matters”. B.3.2. The law of 25 December 2023 entered into force three months after its publication in the Belgian Official Journal (Article 58 of the law of 25 December 2023), i.e. on 1 June 2024. The amended internal rules only apply to complaints, mediation files, requests, inspections and procedures before the Litigation Chamber that begin after the publication of the amended internal rules in the Belgian Official Journal (Article 56, paragraph 3, of the law of 25 December 2023). Prior to its publication, the amended internal rules must be submitted to the House of Representatives (Article 56, paragraphs 1 and 2, of the law of 25 December 2023). As to the admissibility of the brief of the Federal Public Service Finance B.4.1. The Data Protection Authority challenges the admissibility of the submission of the Federal Public Service Finance. B.4.2. Pursuant to Article 85 of the Special Act of 6 January 1989 on the Constitutional Court (hereinafter: the Special Act of 6 January 1989), within 45 days of receipt of the notification made by the Registrar pursuant to Article 77, the parties involved before the court that made the referral decision may submit a submission to the Court. The Special Act of 6 January 1989 does not require them to demonstrate an interest in the position they defend in their submission. ECLI:BE:GHCC:2024:ARR.144 11 B.4.3. Since the Federal Public Service Finance submitted its brief within the time limit, there is no reason to exclude it from the proceedings. As for the preliminary questions B.5.1. By the first preliminary question, the court a quo wishes to know whether Article 57 of the Law of 3 December 2017 is compatible with Article 30 of the Constitution, in that it leaves it to the Data Protection Authority itself to determine the use of languages in the proceedings before it. By the second preliminary question, the court a quo wishes to know whether Article 57 of the Law of 3 December 2017 is compatible with Articles 10, 11 and 30 of the Constitution, in that it establishes a difference in treatment between persons who are concerned by proceedings before the Data Protection Authority and persons who are concerned by proceedings before the Competition Authority, the Data Protection Authority being able to determine and change the language of the proceedings at its discretion, while the Competition Authority must determine and change the language of the proceedings in accordance with the specific rules contained in Article IV.92 of the Code of Economic Law and in the laws on the use of languages in administrative matters, coordinated on 18 July 1966 (hereinafter: the laws on the use of languages in administrative matters). B.5.2. It is apparent from the grounds of the order for reference that the Litigation Chamber of the Data Protection Authority decided, at the request of the complainant, to change the language of the proceedings from Dutch to French on the basis of Article 57 of the Law of 3 December 2017, even though the complaint had been lodged in Dutch and the substantive processing procedure had taken place in Dutch. The Court limits its examination to this hypothesis. B.6.1. The Council of Ministers maintains that the questions referred for a preliminary ruling are based on an incorrect interpretation of the provision in question. It argues that the provision in question does not ECLI:BE:GHCC:2024:ARR.144 12 affect the applicability of laws on the use of languages in administrative matters. In the case before the court a quo, it is necessary, according to him, to apply Article 41, § 1, of the laws on the use of languages in administrative matters, which provides: “The central services shall use in their relations with individuals the one of the three languages used by these individuals”. According to him, it follows from this provision that the Data Protection Authority must use the language initially chosen by the individual. This provision does not provide for the possibility of changing the language subsequently. In any event, the Data Protection Authority does not have a discretionary power to determine and change the language. B.6.2. It is generally for the court a quo to interpret the provisions that it applies, subject to a manifestly erroneous reading of the provision in question. B.6.3. The interpretation of the court a quo according to which the provision in question must be considered as a lex specialis in relation to laws on the use of languages in administrative matters, which excludes the application of the latter laws, is not manifestly erroneous. The explanatory memorandum to the provision in question does indeed mention, without the slightest reservation with regard to the applicability of laws on the use of languages in administrative matters, the following: “This article lays down the rule relating to the language of procedure for the exercise of the research and control powers of the Data Protection Authority” (Parliamentary Doc., Chamber, 2016-2017, DOC 54-2648/001, p. 39). With regard to the first preliminary question B.7.1. Article 30 of the Constitution provides: “The use of languages used in Belgium is optional; it can only be regulated by law, and only for acts of public authority and for judicial matters”. ECLI:BE:GHCC:2024:ARR.144 13 B.7.2. Article 30 of the Constitution reserves to the legislator the power to regulate the use of languages for acts of public authority and for judicial matters. It guarantees that a democratically elected deliberative assembly decides on this matter. Although Article 30 of the Constitution thus reserves the normative competence relating to this matter to the legislator – who must regulate its essential elements – this article does not exclude the granting of a limited power of execution. Such a delegation is not contrary to the principle of legality provided that the authorisation is defined in a sufficiently precise manner and relates to the execution of measures whose essential elements are previously set by the legislator. B.8.1. Under Article 57 of the Act of 3 December 2017, the Data Protection Authority has, with regard to determining and changing the language of the procedure, a discretionary power that is limited only by a criterion, formulated in general terms, according to which the language is determined according to the specific needs of the case. This criterion is not specified or delimited anywhere. Furthermore, it is not specified how the Data Protection Authority must balance different needs or interests against each other. The provision in question thus gives the Data Protection Authority considerable room for manoeuvre in terms of the use of languages in proceedings before the inspection service and the Litigation Chamber. B.8.2. The Data Protection Authority has, moreover, effectively developed a language policy. On 7 January 2021, it published a “Note on the language policy of the Litigation Chamber”, the need for which is justified as follows: “Article 57 of the law of 3 December 2017 establishing the Data Protection Authority (hereinafter: the DPA law) contains a general rule on the use of languages and thus defines the language policy specific to the various departments of the DPA. The article of the law itself provides that: ‘The Data Protection Authority shall use the language in which the procedure is conducted according to the specific needs of the case’. This is a rule of a very general nature which therefore does not guarantee sufficient clarity or legal certainty in practice. For this reason, this note defines more clearly the language policy of the Litigation Chamber”. ECLI:BE:GHCC:2024:ARR.144 14 B.8.3. It follows from the above that, in Article 57 of the Law of 3 December 2017, the legislature itself did not regulate the essential elements. This provision is therefore not compatible with Article 30 of the Constitution. B.9. It is up to the legislature to remedy the unconstitutionality found. In order to guarantee the processing of procedures before the inspection service and the Litigation Chamber, it is appropriate, pending intervention by the legislature, to apply by analogy the laws on the use of languages in administrative matters to these procedures. Concerning the second preliminary question B.10. Given the answer given to the first preliminary question, the second preliminary question does not require an answer. ECLI:BE:GHCC:2024:ARR.144 15 For these reasons, the Court hereby rules: Article 57 of the Act of 3 December 2017 “establishing the Data Protection Authority” violates Article 30 of the Constitution. Thus rendered in Dutch and French, in accordance with Article 65 of the Special Act of 6 January 1989 on the Constitutional Court, on 28 November 2024. The Registrar, The President, Nicolas Dupont Luc Lavrysen ECLI:BE:GHCC:2024:ARR.144
