Court of Appeal of Brussels - 2020/AR/1160 (First Interim Decision)

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Hof van beroep Brussel - 2020/AR/1160
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Court: Court of Appeal of Brussels (Belgium)
Jurisdiction: Belgium
Relevant Law:
Art. 1066, par 2, 6° Ger. W
Art. 108 WOG
art, 19 3rd paragraph Ger. W
Art. 1402 Ger. W
Decided: 16.09.2020
Published: 16.09.2020
Parties: Proximus
National Case Number/Name: 2020/AR/1160
European Case Law Identifier:
Appeal from: APD/GBA (Belgium)
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Tussenarrest 16092020 (in Dutch)
Initial Contributor: Enzo Marquet

The Brussels Court of Appeal (Hof van beroep Brussel) suspended a decision made by the Belgian DPA regarding its sanction against Proximus SA on the grounds that the DPA failed to provide sufficient reasoning for it.

English Summary[edit | edit source]

Facts[edit | edit source]

Proximus appeals the provisionally enforceable aspect of its appealed decision of the Belgian DPA.

Dispute[edit | edit source]

Is the decision of the Belgian DPA provisionally enforceable even though it is under appeal?

Holding[edit | edit source]

The Court of Appeal decided the following: Article 66 GDPR gives the possibility for a procedure of urgency and from this article (and Article 66 and Article 62 GDPR), the European lawmaker did not intend to make decision of a DPA provisionally enforceable.

The Court continues to explain that decisions are provisionally enforceable during an appeal when the appealing courts entirely reviews the case (rules regarding independency and impartiality of judges are the same). The DPA however, is a body created by an administrative body of the government and its judges are appoint by vote of the Chamber of Representatives and thus the same rules regarding judges do not apply.

The Court of Appeal does not entirely review the administrative decision, but only its merits regarding applicable law and good governance. In cases of urgency and when requested, the provisional enforceable aspect of the decision can be suspended.

The appeal against an administrative decision can only be effective if there is no pressure o the appealing party to immediately pay a fine or to align itself with the appealed decision.

The Court of Appeal states that the DPA failed to adequately motivate its decision and thus the provisionally enforceability cannot be granted automatically. When the DPA sends a document to a defending party, principles of good governance must allow for a reply by the party and the DPA must take the reply into consideration in its decision. The name of the 'document' of the reply does not matter, as the procedure for administrative bodies are not as stringent as those for courts.

If the DPA only considers the 'formal conclusion' when motivating its decision (and not the aforementioned 'document'), the duty of motivation is breached. If the DPA would be able to 'chose' to which arguments to reply, the principles of the rule of law would also be breached. Interpreting this any differently would mean the DPA would be able to ignore the remarks in the document, which is not a sign of good governance.

The Court of Appeal suspends the provisional enforceability of the decision. Any actions already taken must be reverted.

Comment[edit | edit source]

On the 27th of January 2021, the full merits of the decision will be reviewed.

Further Resources[edit | edit source]

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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.

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               [ COVER 01-0000173b124-0001-0010-01-01-1 |

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                Brussels Court of Appeal - 2020/AR/1160 -p. 2


PRROXIMUS N.VV, ON 0202,239,951, with registered office at 1030 BRUSSELS, King Albert I
 avenue 27,


 represented by Mr CRADDOCK Peter, Rechtsanwalt, 1000 BRUSSELS, 120 Terhulpsesteenweg.

 Against the decision of the Chamber of Disputes of the Data Protection Authority number
 42/2020 of 30 June 2020.


 The DATA PROTECTION AUTHORITY, ON 0694.679.950, with registered office at 1000

 BRUSSELS, Drukpressstraat 35,

 represented by Mr ROETS Joos, Rechtsanwalt, 2018 ANTWERPEN, Oostenstraat 38, bus 201.

     1.  Jurisdiction of the Market Court,

 The Court shall have its jurisdiction on the basis of an application lodged at the Registry of the Court of Appeal at

 Brussels on 28 August 2020 by PROXIMUS SA against the DATA PROTECTION AUTHORITY IT
 (hereinafter "GBA").

 B this application, PROXIMUS SA claims that z b the Market Court is bringing an action against the

 decision of the GBA's Dispute Settlement Chamber No 42/2020 of 30 June 2020, notified to it
 letter dated 30 July 2020.

     2 Limited debate - provisional enforceability.

 PROXIMUS SA requests that, before justice is done on the merits of the dispute, the

 provisional enforcement of the contested decision would be suspended in application of
 Article 1066, l 2 6° in conjunction with Article 1402 in conjunction with Article 19, l 3 Ger. W. and that this limited debate on

 The inaugural session would be dealt with.

 At the hearing on 9 September 2020, the date on which the proceedings were brought before the Court,
 the debate shall be confined to the point on the right .

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    3.  Legal framework for the restricted debate.


Article 108 of the Law of 3 December 2017 establishing the Data Protection Authority
(hereinafter "WOG") reads as follows:

"§ 1 The Arbitration Chamber shall inform the parties i of its decision and of the possibility to

appeal within a period of thirty days, from 1[...] the notification, with the
Market Court.

Subject to exceptions laid down by law or unless the Dispute Settlement Chamber with special

Reasoned decision-makers recommend i the decision executable in stock, such as
notwithstanding appeal.

The decision to delete data in accordance with Article 100 § 1 10°, i unenforceable

in stock.

§ 2 Appeals against decisions of the Arbitration Chamber under Articles 71 and 90 are permitted.

open to the Market Court dealing with the case as i interlocutory proceedings pursuant to Articles 1035
to 1038, 1040 and 1041 of the Judicial Code".

The provisional enforceability of decisions of the GBA's Dispute Settlement Chamber shall apply from

ipso jure, which does not mean that it is not possible for the court, in the context of an effective
provision could not be reversed (see below).


Article 1066(2), 6° Ger. W. states that the matters for which only brief debates are necessary shall be dealt with by
detained and advocated at the initiation hearing, or otherwise within a maximum of three months, and, if so

necessary, at an afternoon session, and that this applies in the event of a challenge to a decision
of which provisional enforcement without a bond or cantonment i is authorised, or

of which provisional enforcement has been expressly authorised or refused, with the result that
on the understanding that, for the time being, debates will be confined to those particular modalities.

This article is not relevant because the Market Court deals with all the stories as in

interlocutory proceedings.


Article 1402 Ger. W. which states that "Without prejudice to the application of Article 1066, second paragraph, 6°, the following may apply
the courts i appeal]1 i do not, in any event, prohibit or order the enforcement of judgments

suspend, on pain of nullity' is also irrelevant.

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The Market Court does not rule as an appellate court of the judiciary.

The story which, according to Article 108 of the WOG, may be brought before the Market Court i a "one

construction" remedy based on Article 47 HGEU against an administrative decision.


The provision of Article 19(3) of Regulation (EC) No . W. according to which "Before doing justice, the judge,
i any state of justice, [ the situation of the parties may be provisionally settled [ i

not appropriate at a time when the Market Court is assessing the actions/stories brought with full jurisdiction
within a relatively short period of time.

The rules of the Ger. W. aim to ensure that justice is administered in such a way that a
judicial decision may intervene within a reasonable time, but only if

all guarantees of protection of the right of defence are continuously guaranteed.
In order to achieve this objective i it is determining that the protection rules sensu /ato from the

Ger. W. are used loyally and are not turned away from the purpose for which they have been set. I
From this point of view, art. 19 Ger. W. cannot serve to change the formal framework of the 'normal' procedures.

bypass. It is not a question of immediately circumventing the rules on prior notification.
to conduct disguised proceedings on the merits of the case before the court on the pretext of a preliminary injunction.

measure i within the meaning of Article 19 of Regulation (EC) No .../.... W.

I that sentence should be used very cautiously and I it is not appropriate to use this article.

    4 The facts.

The Market Court refers to the exposition of the facts as set out in the following paragraphs.

application by PROXIMUS SA and i the first conclusion of the GBA.

The examination of the facts of the case is not relevant to the assessment of whether or not the

provisional enforceability (which is set out as a legal principle i Article 108 § 1 of the Act requires
be maintained where an applicant brings an action before the Market Court which, as a result

rights (may) have been violated.

5.      The assessment: suspension of the provisional enforceability of the contested decision.

The GBA argues (point 15 i fine):

"After all, Proximus was, and is, free to challenge this decision within the i Art.
108 §1 of the WOG, and to - within this framework - take the interim measures if it so wishes.

claim in accordance with article 19, paragraph 3 Ger.W., which has been done, as evidenced by the following

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profession. The question whether the interim measures requested by Proximus should be taken as soon as possible.

granted, does not, however, affect the regularity of the contested decision, but has
relates to the (in)merits of the present claim in accordance with Article 19(3).
Ger.W. It is for the Court of Justice to rule on this question now with due consideration (

of the evidence provided by Proximus al-dan-not in support of the need for the
requested suspension, { of the balancing of interests between the parties, and ( of the fact that

exceptions to the principle laid down in Article 108(1)(2) of the WOG should become restrictive



The contested decision infringes the (Basic) Law, Proximus' rights of defence, the

 European law and the principles of good administration. It also has irreversible consequences.
 gene for Proximus.

and beyond:

40.     In its response to the proposed fine dated July 1, 2020, Proximus requested the
        Litigation chamber to "order that this decision shall not be provisionally enforceable i or at least

        that an appeal against the decision has a suspensive effect on enforcement' and was referred back
        to Article 108, § 1 2° paragraph of the GBA Act. It has also been clarified why enforceability on a pre-emptive basis
        The Council would be problematic in the present case, in particular because the alleged infringements "are structural in nature".

        to the way in which the whole sector has developed and to the fact that Proximus
        has played a special role to date".

4l, However, the contested decision makes no reference to provisional enforceability. In order to
        not only is Article 102 of the GBA Act violated, but also makes the Dispute Chamber
        Breach of the principle of due care and of the duty to state reasons as a principle of due process.

        administration. After all, nowhere in the decision does it appear that the Disputes Chamber has examined whether
        considered suspending the enforceability of the contested decision pending a

        decision on appeal before your Court.

42.     On this document, i the decision is affected by a legal defect, and i to the extent that it does not in itself

        the invalidity of the disputed decisions (quod non), at least the
        the exportability of the contested decision be suspended immediately.

5.3. .
I the extent to which the Market Court, on the basis of Article 6.1 of the ECHR and Union law in particular article.

47 HGEU must ensure effective redress and effective redress only makes sense i
where the semi-trailer is not 'put under pressure' by the GBA's decision provisionally

enforceable i the Court has unlimited jurisdiction to suspend provisional enforceability.

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               Brussels Court of Appeal - 2020/AR/1160 - p 6

Article 78, l 1 AVG' provides:

Art. 78 Right to an effective remedy against a supervisory authority".

     1 Without prejudice to other means of administrative or extra-judicial redress, the following shall apply

         any natural or legal person the right to take legal action against a natural or legal person concerning him or her
         binding decision of a supervisory authority an effective remedy


     2 Without prejudice to other means of administrative or extrajudicial redress, the following shall be available
         every data subject the right to an effective remedy if the person concerned

         supervisory authority competent in accordance with Articles 55 and 56 no complaint
         treats or does not inform the person concerned within three months i of the progress or the

         result of the complaint lodged under Article 77.
     3.  Proceedings against a supervisory authority shall be brought before the courts of the

         Member State in which the supervisory authority i is established.
                                                          against a decision of a supervisory authority
     4 When proceedings are instituted
         authority to which an opinion or a decision of the Committee i is addressed within the framework of the

         consistency mechanism i, the supervisory authority shall give that advice or
         decision shall be vested in the courts.

Point (143) of the preamble states:

"(143) [ Without prejudice to this right under Article 263 TFEU, any natural or legal person, whether natural or legal, shall, in particular by reason of his or her nationality, renounce his or her right to vote.
                           to oppose a decision of a supervisory authority which has been taken at
legal person the law
produce legal effects in respect of that person before the competent national court or tribunal.
                                                                                          particular job
effective remedy. Such a decision has more
on the exercise of powers of investigation, correction and authorisation

by the supervisory authority, or on the rejection of complaints. [

5.4. .
Article 66 ACC provides for an urgency procedure i in case urgent measures need to be taken.

are affected.   From this fact (and the fact that also under Articles 61 and 62 AVG the
                                                                        in the territory of the Member State
supervisory authorities to take a provisional measure

*Regulation (EU) 2016/679 of 27 April 2016 of the European Parliament and of the Council on the
protection of individuals i related to the processing of personal data and concerning
the free movement of such data and repealing Directive 95/46/EC (General Regulation
data protection)

* "In exceptional circumstances, a supervisory authority concerned may, in its opinion i
the need for urgent action to protect the rights and freedoms of data subjects, i
derogation from the coherence mechanism referred to in Articles 63, 64 and 65 or from the coherence mechanism referred to in Article 60.
procedure, provisional measures with a limited period of validity not exceeding three months, without delay

to take months in order to produce legal effects on their own territory".

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                 L G e _ Court of Appeal Brussels - 2020/AR/1160 -p. 7

for which it is responsible) it follows that it was not the intention of the European legislator to amend the
decisions of the Chamber of Disputes of an authority of a Member State to issue enforceable stock b


Now the appeal (the ordinary administrative appeal) against a decision of a
administrative court (which the GBA does not do! suspensive, i the citizen (sensu

(lato both physical and legal persons) who feel grieved by a decision of the
Disputes Chamber of the GBA entitled before the Market Court to suspend the b the WOG

claimed enforceability b stock i limine litis.

The "provisional enforceability by operation of law" i is defensible when the appeal is an "ordinary appeal".

Appeal' i where the case i fact and i law is re-examined from the outset this time
by another judge of the judiciary. I that case are the appointment rules, the rules

of independence and impartiality of both the first judge and the appellate judge alike.

This is not the case when it comes to redress before a court of law (in this case, the court of first instance).
Market Court) which has to rule on a decision taken by a body of a

administrative authority whose members are appointed by a majority vote i the
Chamber of Deputies.


Since the Market Court assesses the merits of an administrative decision on the basis of the
rules of compliance not only with the rules of the relevant legislation, but also what

as regards the rules of good administration sensu lato and respect for fundamental rights
sensu lato but always gives its verdict within a very reasonable period of time according to the

principles of justice 'such as i interlocutory proceedings', it is for the Court, where the applicant so requests, to
may, where appropriate, grant a stay of provisional enforcement until such time as the Court

has made a statement on the merits of the established story itself.

Recourse to an administrative decision can only be effective if the
the applicant is not put under pressure to pay and/or comply with a fine immediately

to the decisions of the contested decision.

The Market Court finds in this regard that SA PROXIMUS is correct in asserting that the disputed

decide on the plea relied on to derogate from the automatic nature of article
108 § 1 of the WOG has not replied in a reasoned manner and has therefore not taken the decision alone

already affected by the illegality of an inadequate statement of reasons i.

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                      .                                              4 Court of Appeal Brussels - 2020/AR/1160 -p. 8

PROXIMUS S.A. had indicated i the reply to the "form for reaction against proposed action".
fine" (document 3 GBA - point 3 page 6) order that the decision be declared unenforceable b

stock and that the appeal against it would have a suspensive effect.

Whether a document submitted to the GBA Dispute Settlement Chamber by a party is a document that the
conclusion', 'statement', 'letter' or whatever it is called, i not relevant to the
obligation of the GBA's Dispute Settlement Chamber to insist on the content of that written document

reply.  Where a 'conclusion' is the means of a party to proceedings before the Courts and
courts, this shall not apply to a dispute settlement body of an administrative

government. The legislator has not imposed strict procedural rules, which means that any
written notification submitted in due time to the Dispute Settlement Chamber of the GBA i, shall
to be assessed and answered.

Now the GBA's Dispute Settlement Chamber will impose a sanction on the party on whom it wishes to impose a sanction.

sending an ad hoc document asking for an answer, implies that the
Dispute Chamber of the GBA, to respect the rules of good administration sensu lato (the

including the obligation to state reasons, including the party's comments i that
reply document, shall reply in the decision.

The GBA's Dispute Settlement Chamber limits itself - as regards the grounds for the decision - to
answering what i a formal "conclusion" i included, without taking into account

with all other writings and documents submitted in good time, infringes the obligation to state reasons.

Moreover, it appears that the GBA's Dispute Settlement Chamber is well aware of this fact.

given that, for example, marginal 70 of the contested decision is indeed
responds to a comment made by PROXIMUS SA i the aforementioned

reply form. It does not fit i a rule of law that the GBA's Dispute Chamber could
choose' to which argument z a then does not provide an answer.

Judging otherwise would mean that the GBA's Dispute Settlement Chamber would be attached to the GBA.
requests the parties to submit comments and then to disregard them, which in itself

an instance of maladministration.

The Dispute Settlement Chamber of the GBA has the obligation to state reasons (by analogy with Articles 2 and 3
of the Law of 29 July 1991 on the express grounds for administrative acts)


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                  8 |Court of Appeal Brussels - 2020/AR/1160 -p. 9

    6. Decision.

Before pronouncing on the merits of the action brought by PROXIMUS NV, the following information shall be provided
suspended the provisional enforceability of the contested decision until the Market Court

will have ruled on the merits of the case.

Any implementation that has already taken place must be reversed immediately.



Decisive on contradiction;

Having regard to article 24 of the law of 15 June 1935 on the use of languages i court cases;

Only in respect of the claim for suspension of provisional enforceability;

Declares this part of the claim admissible and well founded;

Recommends the lifting of the provisional enforceability of the decision of the Chamber of Disputes

of the Data Protection Authority of 30 June 2020 concerning number 42/2020 until the Court of Justice
will have ruled on the merits;

Says that any implementing measures already taken should be immediately annulled

For the rest, hold on;

Determines the final calendar as follows:

-GBA: no later than 21 October 2020;
- NV Proximus: no later than 2 December 2020;

-GBA: not later than 13 January 2021;
and will present the substance of the case for consideration at the hearing on 27 January 2021 at 2 p.m.
for a joint plea of 180 minutes.                                     ,

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                                                               1 Brussels Court of Appeal - 2020/AR/1160 -p. 10

 This judgment was delivered at the public civil hearing of the Market Court - Chamber
 19A of the Brussels Court of Appeal on 16 September 2020 by:

 M. BOSMANS - President-in-Office of the Council
 A-M. WHITETERSRaadsheer ,
 O. DUGARDYN Alternate Counsellor
 A. DECLERCK _ Registrar



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