Court of Appeal of Brussels - 2020/AR/1160 (First Interim Decision)
| HvB - 2020/AR/1160 | |
|---|---|
 | |
| Court: | HvB (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: | 16.11.2020 |
| Parties: | Proximus GBA/ADP |
| National Case Number/Name: | 2020/AR/1160 |
| European Case Law Identifier: | |
| Appeal from: | GBA/ADP 42/2020 |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Tussenarrest 16092020 (in Dutch) |
| Initial Contributor: | Enzo Marquet |
Proximus appeals the provisionally enforceable aspect of its appealed decision of the Belgian DPA.
English Summary
Facts
Not relevant to the case.
Dispute
Is the decision of the Belgian DPA provisionally enforceable even though it is under appeal?
Holding
The Court of Appeal decided the following: Art. 66 GDPR gives the possibility for a procedure of urgency and from this article (and art. 61 and 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
On the 27th of January 2021, the full merits of the decision will be reviewed.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
