Court of Appeal of Brussels - 2020/AR/329
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| Hof van beroep Brussel - 2020/AR/329 | |
|---|---|
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| Court: | Court of Appeal of Brussels (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 57(1)(f) GDPR Article 77(2) GDPR Article 95, §1, 3° WOG |
| Decided: | 02.09.2020 |
| Published: | |
| Parties: | GBA |
| National Case Number/Name: | 2020/AR/329 |
| European Case Law Identifier: | |
| Appeal from: | APD/GBA (Belgium) DOS 2019-06201 |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | GBA (in Dutch) |
| Initial Contributor: | n/a |
A supervisory authority is authorized to dismiss a complaint when it considers that an examination on substantive merits is not appropriate. But when a supervisory authority takes such a decision, it must motivate it formally and substantively.
English Summary
Facts
After ceasing her notary activity, the applicant engaged in a liquidation dispute with her former business partner and their accounting office.
This dispute arose as the accounting office (1) failed to fulfill several ethical obligations and (2) transferred files containing personal data about the applicant to the former partner (without the applicant’s consent).
The Litigation Chamber of the Data Protection Authority declared the applicant’s complaint admissible, but dismissed it for the following opportunity reasons:
- the complaint did not contain any grievances that a have a “broad social impact”;
- another complaint was pending with the competent authority with regard to the ethical and professional mistakes ;
- taking into account the resources available, the DPA should make choices regarding the type of files it will follow up on grants.
The applicant subsequently appealed to the Market Court of the Brussels Court of Appeal against the aforementioned dismissal decision of the DPA.
Dispute
Should Article 57.1, f) GDPR be read as such that supervisory authorities may not dismiss complaints but should instead review the full substance of the allegations in each complaint?
In other words, does the data subjects' right to lodge a complaint under Article 77 GDPR equals the right to claim a full substantive investigation and a full substantive assessment by the supervisory authority?
Holding
Article 57 GDPR provides that the supervisory authority must "examine the content of the complaint" only "to the extent that is appropriate". There is therefore no absolute obligation but a discretionary power for the supervisory authority to make a full substantive investigation and a full substantive assessment of the complaint.
If the supervisory authority considers that a treatment of the case on substantive merits is not appropriate (due to policy considerations, for example), it is authorized to dismiss the complaint. The option to dismiss is indeed one of the consequences that can be given to a complaint in accordance with Article 95 §1, 3° WOG.
But when the supervisory authority decides to dismiss a complaint, it must motivate this decision formally and substantively. A decision based on incorrect or legally unacceptable motives reveals an overstep of power and is therefore voidable.
In this case, the Market Court of the Brussels Court of Appeal considered that the decision of the Litigation Chamber of the DPA was not properly motivated as it didn't explain why there was no "broad social impact", neither how and to what extent the deontological complaint lodged with the competent authority had the same object as the complaint to the DPA. The motive establishing that there are insufficient financial resources at the disposal of the DPA was not judged conclusive neither as it was not supported by any data. Morover, "[the DPA] is at the service of the citizen and must ensure that it spends its resources properly"; "the citizens should not and should not be the victims".
The Market Court therefore ordered the DPA to issue a new decision regarding the complaint within a reasonable period.
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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.
Court of Appeal Brussels -2020/AR/329 -p. 2
ON:
X, [...]
applicant,
represented by Mr HEUSE Rika, lawyer, with an address for service in ....
against the decision of the Dispute Resolution Chamber of 28. January 2020-PV No 2 dated 28/01/2020,
AGAINST:
DATA PROTECTION AUTHORITY, an independent public institution (supervisory authority) with legal personality, having its registered office at
authority) with legal personality, with CBE no. 0694.679.950, with registered office at
1000
BRUSSELS, rue du Mail 35,
Defendant,
represented by Mr ROETS Joos, Mr CLOOTS Elke and Mr VAN DIEST Thomas, lawyers,
all having their offices at 38 Rue Oosten/201, ANTWERP
1. Jurisdiction of the Market Court:
The court draws its jurisdiction from an application filed with the registry of the court of appeal in Brussels on
Brussels on 28 February 220 by X against the DATA PROTECTION AUTHORITY (hereinafter referred to as: DATA PROTECTION AUTHORITY).
"GBA").
By this application, X is appealing against the decision of the Dispute Resolution Chamber of the GBA of
28 January 2020 {kenk DOS 2019-06201) dismissing her complaint on the basis of Article 95 § 1,
3 of the Act of 3 December 2017 establishing the Data Protection Authority {hereinafter referred to as "WOG"} is dismissed.
"This decision was notified to her by e-mail dated 29 January 2020 {document 4 in the file}.
2020 {document 4 in the file of the GBA).
The petition asks:
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L _JJCourt of Appeal Brussels -2020/AR/329 -p. 3
Declare the appeal admissible and well-founded;
Annul the contested decision of the Dispute Resolution Chamber of the GBA of 29 January 2020 (reference DOS-
2019-06201);
rule that the Dispute Resolution Chamber of the Municipal Administration must take a new decision
in accordance with Article 95 §1 of the GBA Act;
Order the GBA to pay the costs of the proceedings, including the costs of the roll call (PM) and the procedural
The latter is estimated at EUR 1,440.00.
The decision itself is contained in an official report dated 28 January 2020, which constitutes Document 3 of the file
)
of the GBA that, based on the information currently available to the Dispute Resolution Chamber, it
does not consider it appropriate at this time to take any further action on the complaint, given that the complaint
does not contain any grievances that have a wide social impact and, moreover, the file
it appears that with regard to the deontological and professional errors committed by V, a complaint is also pending.
V, a complaint is also pending with "the competent authority" and the Litigation Chamber wishes to avoid a possible double
wishing to avoid a possible double investigation. As regards expediency, the
Dispute Resolution Chamber also states that, taking into account the resources available to the Dispute
the Litigation Chamber, it must make choices as to the type of cases it will follow up.
to which it will give further effect.
2. The written procedure (article 755 of the Judicial Code):
Partly in view of the health risks posed by the pandemic of COVID-19 and at the same time
in order to take an active step towards modernisation of the judiciary and adaptation of the judicial process to the
adaptation of the judicial process to the digital evolutions of the last decades, the Market Court is
pioneered the application of the written procedure as provided for in article 755 of the Judicial Code. W.
The parties to the proceedings were invited to make use of the written procedure if necessary.
written procedure.
By e-mails of 4 May 2020 and 5 May 2020, the respective litigants declared that they agreed to have the case heard by written procedure.
to have the case heard by written procedure.
3. The claims for the Market Court :
By application lodged at the Registry on 6 uli 2020, X:
"Declare the action admissible and well-founded;
Annul the contested decision of 29 January 2020 (reference DOS-2019-06201);
Accordingly:
1V l. Richard SUSSKIND, Online Courts and the future of Justice, Oxford Universit y Press ,
2019.
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L _JJ Court of Appeal Brussels -2020/AR/329 - p. 4
121 In the main order: to decide that the dossier is ready for processing on the merits within the meaning of
Article 95, §1, °GBA Law and order the GBA to process the file on the merits within the meaning of Article 98 et seq.
the file on the merits in accordance with Article 98 et seq;
121 In subordinate order: order the GBA to make a new
In subordinate order: order the GBA to take a new decision in accordance with Article 95, §1 of the GBA Act;
In any event, order the GBA to pay the costs of the proceedings, including the costs of
law (PM) and the legal costs, the latter estimated at EUR 6,000.
By summary judgment filed on 6 August 2020, the GBA claims
"To declare the applicant's appeal unfounded;
In subordinate order, refer the following question to the Court of Justice for a preliminary ruling
Justice:
"Should Article 57.1(f) of the Regulation (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the
on the protection of individuals with regard to the processing of personal data and on the free movement of such data and
of such data and repealing Directive 95/46/EC (General Regulation
data protection), to be read as meaning that supervisory authorities may not close
authorities are not allowed to close complaints for policy reasons, and
that they must therefore deal with every complaint in its entirety and on its merits?
In any event, order the applicant to pay the costs of the proceedings, including
of the basic amount of the procedural indemnity, estimated at EUR 1 440.
4. The facts:
X gives the following account of the facts:
A. Departments
1. Until 8 December 2017, the applicant was a notary public with his registered office in [...], jn
association with civil-law notary W. The association took the form of a partnership. The applicant
exercised her notarial activity in the partnership through her company X BVBA,
currently established in [...].
2. The applicant has had to cease her activities as a notary for health reasons.
As a result, the applicant and Mr W have been involved in a dispute for some years.
a dispute. The dispute concerns, inter alia, harassment and verbal aggression by Mr W
and the liquidation of the partnership under which the association was exercised. This
partnership still exists today for the purpose of its liquidation.
3. The accountancy firm of X BVBA was Z BVBA, [...], of which Mrs. V is one of the
directors (piece 8). Z is also the accounting firm of the partnership between the applicant and
Mr Wen is in that capacity very well informed about the dispute.
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L _JJCourt of Appeal Brussels -2020/AR/329 -p. 5
4. Due to the non-compliance of several deontological obligations by Z BVBA
X BVBA decided in May 2019 to change its accounting firm and from now on to rely on the accounting firm U BVBA, [...].
U BVBA, [...].
B.nbreaches of the AVG by Z BVBA
5. In the context of this transfer of files to the accounting firm U BVBA, Z BVBA sent an e-mail to the applicant, Ms U1 and Mr U2 on 15 July 2019.
On 15 July 2019, Z BVBA sent an e-mail to the applicant, Ms U1 and Mr U2
of the accounting firm U BVBA, and to the applicant's counsel Mr. U3 enclosing
32 attachments {document 1, attachment 3). Although Z BVBA is very well aware of the dispute
between the applicant and Mr W, Z BVBA sent a copy{c} of that email with all the attachments.
copy{cc) to Mr W.
6. Some of those annexes contained personal data concerning the applicant, such as her
income, information about her pension plan, etc. Moreover, since the applicant
formerly as a notary and now as a legal adviser, carries on her entire activity through her company
company X BVBA and is the sole shareholder in that company, those annexes give
provide comprehensive insight into the applicant's affairs.
7. Z BVBA sent that email of 15 July 2019 to Mr W without the applicant's request or consent.
the applicant's request or consent. Z BVBA purposely sent that email to him
because that email was not a response to an existing email in which he was already in
copy.
8. By sending the email of 15 July 2019 with 32 attachments in copy {cc) also to Mr.
W, with whom the applicant has been involved in a dispute for several years, Z
BVBA committed blatant infringements of Regulation 2016/679 of the European Parliament
Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data
protection of individuals with regard to the processing of personal data and on the free
on the free movement of such data and repealing Directive 95/46/EC {hereinafter "AVG"),
for example {non-limitative)
...].
C. Complaint biide GBA on 26 November 2019 for breaches of the AVG
9. By e-mail of 26 November 2019, the applicant complained to the GBA about the aforementioned blatant
violations of the AVG to the GBA {document 1). In view of the fact that
As enquiries made by telephone to the GBA showed that the GBA had not received the email of 26 November 2019, the applicant submitted the complaint by way of an email to the GBA.
had received, the applicant resubmitted the complaint by emails dated 11 December 2019
(Exhibit 3).
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L _JCourt of Appeal Brussels -2020/AR/329 - p. 6
Following further communication regarding the receipt of the complaint (documents 4 and 5), the
First Line Service of the GBA declared the complaint admissible.
D. Dismissal of the complaint by the Dispute Resolution Chamber of the GBA on 29 ianuary 2020
10. However, on 29 January 2020, the Dispute Resolution Chamber of the GBA decided to dismiss the complaint
(reference DOS-2019-06201} (Exhibit 6). That decision, which is contested by the applicant in these
This decision, which the applicant is appealing in these proceedings, was based on two grounds:
[..].
E. Complaint lodged with the Institute of Accountants and Tax Consultants on 22 February 2020
for violations of the ethics of accountants
11. In the context of the dispute between the applicant and Mr W (not only the
email of 15 July 2019 but much more broadly) Z BVBA was also guilty of
violations of several deontological rules of accountants, such as the duty to be
practice of the profession with integrity, honesty and dignity, the duty of
independence, duty of discretion and professional secrecy, etc. On 22 February 2020
the applicant filed a complaint in that regard with the Institute of Accountants and
Tax Consultants (document 7)."
The GBA summarises as follows:
1. The applicant, Ms X, is a 100% shareholder in a personal private limited company and, with this company, is a 50% partner in the Partnership W-X, an associated company.
with this company 50% of the partners in the partnership W-X, associate
notaries (hereinafter 'the Partnership'). The latter Partnership has since been dissolved
(but not yet liquidated) because Ms X and her former business partner (Mr W) no longer
no longer work together.
2. By e-mail dated 26 November 2019, Ms X filed a complaint with the
Data Protection Authority (the defendant) against the accountancy firm Z bvba {India
1).
This complaint was filed for two reasons:
Z bvba refused to disclose its personal data.
information data. Mrs V of Z bvba allegedly refused Ms X in particular access to accounting documents of the
to give access to accounting documents of the Partnership because, according to Ms V, the former business partner of Ms X
the Partnership because, according to Ms V, the former business partner of Ms X
(Mr W) must give his consent.
Z bvba is alleged to have been guilty of the unauthorised distribution of 'particularly extensive and very detailed
very extensive and very detailed' personal information to third parties.
1 PAGE □1-□□□□ 1721242- □D□b- □□28- □2-□1-�
L _JCourt of Appeal BruS "sel - 2020/AR/329 - p. 7
----------���------------------------
In particular, V of Zbvba would have sent information about (the limited liability company of) Mrs X to both
Mrs X to both Mrs X and her former employer.
business partner (Mr W), while the latter should not have received this information.
receive this information.
In the explanation of the complaint, Ms X also mentioned the following
(SAMPLE 1, p. 1):
"It is hereby explained that the deontological and professional errors that were
committed by Mrs. V are the subject of another complaint which will be filed with the competent
competent authority on the matter. Consequently, the following complaint
relates exclusively to the violation of my privacy,
3. On 7 January 2020, the First-line Service of the Data Protection Authority
(ELD) determined that the complaint was admissible (per se), and the complaint was transferred to the
Dispute Resolution Chamber (STUK2).
4. At the meeting of the Dispute Resolution Chamber on 28 January 2020, the
Dispute Resolution Chamber then decided to dismiss the complaint, due to the following
(opportunity) reasons (PV no 2 of 28/01/2020 concerning file 005-2019-06201)
(STUK3}:
[..].
5. This decision to dismiss by the Dispute Resolution Chamber was notified to Mrs. X. by letter dated 29 January 2020.
This decision to dismiss by the Dispute Resolution Chamber was notified to Mrs X by letter of 29 January 2020.
reasons for the dismissal (SECTION4):
"The Dispute Resolution Chamber has taken note of your complaint, which was received on XXXX by the
First Line Service has been declared admissible. On the basis of the information currently available to the
Disputes Committee currently has, it does not consider it appropriate (1) to make any further decisions at this time.
further action on this matter, as the complaint does not contain any grievances with a wide
broad social impact. Moreover, you indicate that with regard to
With regard to "the dontological and professional errors committed by Mrs. V" a
The Dispute Resolution Chamber does not wish to conduct a double investigation in any way.
possible double enquiry. [...]
(1) In view of the resources available to the Chamber of Disputes, the latter should
It must make choices concerning the type of files to be followed up.
pursue".
6. By application of 28 February 2020, Mrs X subsequently lodged an appeal with Your Court against the aforementioned dismissal decision.
Appeal against the aforementioned dismissal decision,
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..
L 1!11- _JCourt of Appeal Brussels-2020/AR/329- p. 11
Subsection 4. Notification and appeal procedure
Art. 108
§ 1. The Disputes Chamber shall notify the parties of its decision and of the possibility of
The parties shall be notified of its decision and of the possibility to lodge an appeal within a period of thirty days from the notification to the Market Court.
[...] of the notification, to the Market Court.
Subject to the exceptions provided for by law or unless the Chamber of Disputes decides otherwise by means of a
otherwise in a reasoned decision, the decision is enforceable against the parties.
provisionally, notwithstanding appeals. °
The decision to delete data in accordance with Article 100 § 1, 10
shall not be provisionally enforceable.
§2
The decisions of the Chamber of Disputes pursuant to Articles 71 and 90
may be appealed to the Market Court which shall hear the case as in interlocutory proceedings
pursuant to Articles 1035 to 1038, 1040 and 1041 of the Judicial Code.
Code.
The House of Representatives has20pdecember 2018 approved the rules of internal ordé
of the GBA. The rules of internal order drawn up by the executive committee contain
the essential rules regarding the functioning of the bodies and the deadlines within which
information, advice and approvals mentioned in the Act of 3 Dec2017rtreating the GBA must be provided.
the GBA must be provided. It was published in the Belgian Official Gazette of 15 January
2019 and is also mentioned on the website of the GBA.
6. The assessment: the right to lodge a complaint - Article 77 AVG (first plea of X).
In its first ground of appeal, X seeks the annulment of the decision on the ground that it disregards
of its right of complaint. She submits that Article 77 AVG 2, interpreted in the light of Articles 1, 51(1) and
57 AVG, recitals 7, 10 and 141 AVG, Article 8 Charter and Article 16 TFEU, is infringed by the right of the defence which it establishes to the right of the defence to be heard.
by unlawfully restricting the right of a data subject to lodge a complaint, as provided for therein, to complaints which 'do not relate to the protection of personal data'.
erroneously limit the right of a data subject to lodge a complaint to complaints having 'a wide-ranging impact in society' and that limitation is contrary to
is contrary to the interpretation which must be given to Article 77 TFEU.
In conclusion, the GBA does not put forward any defence to this plea.
It is apparent from the file documents submitted, and in particular from document 2 in the file of the GBA, that the
GBA declared X's complaint admissible. On 7 January, the First-line Service (ELD) sent
2020, the file was sent to the Dispute Resolution Chamber with the following explicit reference: "ELD examined the admissibility of the
admissibility of the complaint in the file mentioned above; ELD finds that the complaint is admissible;
consequently, this file is transferred to you for further action".
2 Regulation (EU) 2016/679 of 27 April 2016 of the European Parliament and of the Council
on the protection of individuals with regard to the processing of personal
personal data and on the free movement of such data and repealing
Directive 95/46/EC (General Data Protection Regulation, hereinafter "AVG").
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L _JCourt of Appeal Brussels-2020/AR/329- p. 12
X confuses the admissibility of a complaint with the assessment of its merits.
X's right to lodge a complaint was not called into question by the contested decision, let alone infringed by any other decision of the GBA.
X's right to lodge a complaint was not called into question by the contested decision, let alone infringed by any other decision of the GBA.
To the extent that X then draws a grievance from 'Article 77AVG, interpreted in the light of Articles
1, 51.1 and 57AVG, recitals 7, 10 and 141AVG, Article 8 of the Charter and Article 16 TFEU,' the plea in law is without
plea in law.
7. The assessment: the right to complain - Article 47 HGEU (second plea in law, put forward by X)
In its second plea, X:
a. As recital 1 AVG states, the protection of natural persons in relation to the processing of personal data is a fundamental right.
processing of personal data is a fundamental right. as guaranteed by Article 8,
paragraph 1 of the Charter. Article 47 Charter provides that judicial remedies available in the
respect of the rights guaranteed in the Charter shall be 'effective'.
guaranteed in the Charter must be 'effective'. They must therefore be capable of
be effective.
b. One such judicial remedy created by the legislator is
the right to lodge a complaint with the GBA, as provided for in a77iAVG and
Article 58 GBA Act. In view of Article 47 of the Charter, this complaint must be effective
be able to be exercised effectively, it must be able to achieve its goal. The legal doctrine also states that
"the obligation under the AVG includes the examination of the facts, the assessment
the merits of the case and deciding whether to comply or not,
ultimately, enforcement activities and/or sanctions if non-compliance is
established. (...) The national procedural rules for supervisory authorities
should be suitable for carrying out all these tasks in a way which guarantees an effective remedy for data subjects.
effective remedy for data subjects."
3 Free translation of "The obligation under the GDPR includes investigation of the facts,
assessment of the merits of the case and a decision about compliance or non-compliance, plus,
eventually, enforcement activities and/or sanctioning if non-compliance is encountered. (...)
The national procedural rules for supervisory authorities must be appropriate to achieving all
these tasks in a way which guarantees an effective remedy to data subjects;(W. KOTCHY,
"Article 77. Right to lodge a complaint with a supervisory authority' in C. KUNER, L.
BYGRAVE and C. DOCKSEY (eds.), The EU Genera! Data Protection Regulation (GDPR). A
Commentary, Oxford, Oxford University Press, (1117) 1123).
r PAGE 01-00001721242-0012-0028-02-01-�
L _JCourt of Appeal Brussels - 2020/AR/329 -p. 13
�·�.�= --------------------------
This plea -lacks factual basis to the extent that - as stated above - the complaint submitted
declared admissible by the ELD of the GBA (and also by the Dispute Resolution Chamber). The plea
fails in law in so far as it seeks to apply Article 47 HGEU in respect of the decisions of the
the Dispute Resolution Chamber of the CBA in so far as that article relates to the effective remedy of a dispute.
which can be brought before a court of law. The Dispute Resolution Chamber of the GBA is not an administrative
judge but only a (non-autonomous) body of an administrative authority. Although it is of course
recommended that all those who judge the legal subjects - even if they are an organ of an administrative authority - comply with the rules of legal protection and of
administrative authority - would spontaneously comply with the rules of legal protection and respect for fundamental rights, the
fundamental rights, this legal protection by the subject of the law is only legally enforceable by a judge.
legally enforceable only before a judge (who is a member of the judiciary) who is
is the only one who judges independently and impartially on the rights sensu fata of the
legal subjects). The legal possibility to appeal/recover to the Market Court
The legal possibility to lodge an appeal/recourse before the Market Court is intended to provide the litigant with the guarantee of Article 6.1 of the ECHR and more specifically of the remedy provided for in
and more specifically of the remedy provided for in Article 47 HGEU. A judge of the judicial order must be the
last see to it that, when imposing sanctions (sensu fata) by (bodies of) administrative
authorities, the protection of the citizen/lawyer guaranteed by supranational legislation is not violated.
citizen/petitioner is not infringed. This judge (in this case the Market Court) must
be able to rule on the decision of the administrative authority with full jurisdiction
and must be able, not only to reverse the decision by annulling it, but also to
but must also have the power to amend the substance of the decision by
taking its own decision and substituting it for the decision of the
administrative authority.
8. T he assessment: violation of Article 57.4 AVG (third plea in law from X).
X submits that the decision violates Article 57.4 of the AVG where this provision is concerned:
"Where requests are manifestly unfounded or excessive, in particular due to their
repetitive nature, the supervisory authority may charge a reasonable fee based on the administrative costs or refuse to comply with the request.
charge a reasonable fee, or refuse to comply with the request.
It is for the supervisory authority to prove the manifestly unfounded or excessive nature of the request.
of the request.
The plea lacks factual basis. The ELD of the GBA 'acted' on the complaint because
it declared the complaint admissible and forwarded it to the Dispute Chamber for further action (see above).
Dispute Chamber (see above).
The dismissal decision is a consequence that can only be given to an admissible complaint.
The decision to dismiss is separate from Article 57.4 of the AVG. The possibility of dismissing a complaint is one of the
consequences that can be given to a complaint pursuant to Article 95 and 100 § 1, 1) WOG.
4 As far as the Dispute Resolution Chamber is concerned, at least implicitly so, because one of the consequences reserved for a complaint by article 95
95 WOG reserves for a complaint was applied by the Disputes Chamber, namely a dismissal.
a dismissal.
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L _JJustice of Appeal Brussels -2020/AR/329-p. 14
X does, however, rightly assert that the fact that it is up to the Disputes Chamber of the GBA
to prove the manifestly unfounded or excessive nature of the request implies that also
the decision to close the case must be substantiated (see below, point 9).
9. The assessment: infringement of the duty to state reasons by the fact that the decision is not well-founded
(fourth plea in law ofX).
9.1.
X states (conclusion no. 59): '.... In view of Articles 77 AVG, 47
Charter and 57.4 AVG cannot dismiss complaints because they do not have a wide-ranging social impact [...].
For the same reason, it cannot strike out complaints on the ground that they do not have a broad social impact.
for the reason that it wishes to avoid an alleged double investigation with a deontological complaint that has a different finality. By
Yet by invoking such unlawful motives, it is invoking improper motives."
9.2.
The contested decision is based on the following considerations:
"Mrs. X files a complaint against ZBVBA.
The Complainant is a 100 % shareholder in a personal private limited company and with this company he is a 50 % partner in the partnership W-X, associated notaries.
50 % partner in the partnership W-X, associated notaries (hereinafter 'the Partnership').
Partnership'). The latter Partnership has since been dissolved (but has not yet been liquidated).
because the Plaintiff and her former business partner (Mr W) no longer work together.
The complainant filed a complaint against the accountancy firm Z BVBA for two reasons:
1. "Refusal to provide access to "personal information data". Mrs V of Z BVBA allegedly refused her access to her personal data.
V of Z BVBA would have refused her access to
documents concerning the Partnership's accounts because, according to her, the complainant's former business partner
According to her, the former business partner of the complainant (Mr W) had to give his consent.
must give his consent.
2. 'Unauthorised disclosure of particularly voluminous and detailed personal data to third parties'.
2. 'Unauthorised dissemination of very extensive and very detailed personal data to third parties'. Mrs. V of Z BVBA sent in an email
information about the (BVBA of the) complainant to both the complainant and her former business partner, while the latter did not have this information.
while the latter did not have this information.
should have received this information.
Pursuant to art. 95, §1, 3 of the Act of 3 December 2017 establishing the
Data Protection Authority, the Litigation Chamber decides to dismiss the present complaint.
dismissed. Based on the information available to the Litigation Chamber at this time,
it does not consider it appropriate at this stage (1) to pursue the matter further,
as the complaint does not contain any grievances that have a wide social impact.
In addition, the complainant states that with regard to "the deontological and professional errors committed by
V" a complaint is pending with "the competent authority" and the Dispute
authority" and the Litigation Chamber wishes to avoid a possible double investigation.
5Read" settled"
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L _JJustice of Appeal Brussels -2020/AR/329 - p. 20
of the case, there is no broad social impact. It should also
clarify what the Dispute Resolution Chamber understands by "broad social impact" so that the
Court of Appeal can check whether or not the facts at hand (which the decision must state)
16 covered by the definition.
The statement "based on the information currently available to the Dispute Resolution Chamber, ..." is not sufficient.
is not sufficient, this "information" should at least be summarised or briefly mentioned in the decision itself so that the
This "information" should at least be summarised or briefly mentioned in the decision itself so that the Market Court can verify it.
9.7.
The motive "a complaint has also been submitted to the competent authority and the Dispute Resolution Chamber wishes to avoid a possible double investigation" cannot be assumed as it is in general terms.
dispute resolution chamber wishes to avoid a possible double investigation" cannot be accepted as it is stated here in general terms.
terms here.
The legal principle of ne bis in idem must of course be respected, but this requires first of all that
a first decision has already been taken - which is not the case here since apparently
The Institute of Accountants and Tax Consultants has not yet taken a decision - and secondly
secondly, that there is a "bis", i.e. that the same infringement would be penalised twice.
be sanctioned twice. The decision does not explain how and to what extent a possible
deontological infringement committed by a member of the Institute of Company Auditors would have (and could have) the same
object (and could have) as a complaint to the GBA. Once again, the
Court does not express an opinion on whether or not there can be a double decision in this case, but the Court does state that the
decision or not, but the Court merely finds that the contested decision is not sufficiently
adequately reasoned.
X moreover states: "On 22 February 2020, the applicant filed a complaint about this
to the Institute of Accountants and Tax Consultants (document 7)", whereas the
Geschillenkamer already on 28 January 2020 (the Market Court underlines) mentions a bis in idem.
in idem. The motive invoked is also manifestly wrong in terms of the passage of time. It is sad to
It is sad to see that manifestly incorrect elements have been included in the decision. This is no
problem of appreciation within the framework of a discretionary assessment, but manifestly
injudicious assessment.
9.8.
The motive (in footnote) that "taking into account the means available to the Litigation Chamber
has at its disposal, [....] it must make choices as to the type of cases it will pursue.
is an adequate motive.
An administrative authority is at the service of the citizen and must ensure that it spends its resources properly.
resources properly.
16However, the Market Court does not recharacterise the facts or test whether the Court would reach the same decision on the basis of the
It is the judge's task to decide on an 'ordinary' appeal.
on an 'ordinary' appeal) but the Market Court does check whether the facts as they are
can be described in accordance with the definition.
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L � _JCourt of Appeal Brussels -2020/AR/329 - p. 23
The Market Court shall carefully monitor the effectiveness of any provision relating to a
potential breach of the processing of personal data in line with the fundamental principles of
contained in the GTC17-
9.12.
X's pleas in law 5 to 10 cannot result in any other sanction than the annulment of the
contested decision. Accordingly, there is no reason to examine these pleas here.
10. The assessment:,Ce jurisdiction of the Market Court (fifth plea in law of the GBA - eleventh
m i- del by X:
10.1.
X holds that if the Market Court annuls the contested decision, it must in the main
be decided that the dossier is ready for processing on the merits within the meaning of article 95, §1, 1° GBA
GBA-act and the GBA must be ordered to process the file on the merits within the meaning of
of article 98 et seq. of the GBA Act.
10.2.
The GBA states:
"22. In her eleventh plea, the applicant submits that if Your Court were to set aside the contested decision, Your Court should
Court should order that the file is ready for processing on the merits in the sense of
Article 95, §1, 1°GBA-Act and that the GBA be ordered to process the file on the merits.
the merits of the case in accordance with article 98 et seq. of the GBA Act. According to the applicant, the Court
not only annul the CBA's decision, but can also substitute its own decision for the annulled decision.
decision in place of the annulled decision. In her twelfth plea
17
Recital 141 of the AVG is stated as follows: "Every data subject should have the right
have the right to lodge a complaint with a single supervisory authority, in particular in the Member State in which he or she normally resides, and to seek an effective remedy before a court of law
Member State where he has his habitual residence and to seek effective remedy before a court in accordance with Article 47 of the Charter if he considers that his rights have been violated.
in accordance with Article 47 of the Charter if he/she considers that his/her rights under this Regulation have been infringed or if he/she considers that his/her rights have been violated
rights under this Regulation or if the supervisory authority fails to act
following a complaint, rejects or dismisses a complaint in part or in full [in
French: "la rejette" ; in English: "discismisses"], or if it fails to act when such a complaint is
action is necessary in order to protect the rights of the person concerned. The investigation
carried out following a complaint shall not go beyond what is appropriate in the specific
appropriate to the specific case and may be subject to judicial review. The supervisory
authority shall inform the data subject within a reasonable period on the progress and outcome of the complaint.
progress and outcome of the complaint. If the case requires further investigation or coordination with
with another supervisory authority, interim information should be provided to the data subject.
provided to the data subject. Each supervisory authority should take measures to facilitate the
facilitating the submission of complaints, such as the provision of a complaint
complaint form that can also be completed electronically, without excluding other means of communication.
means of communication are not excluded. This shows that it was the intention of the
European legislator in order to also be able to subject a decision to close a case to judicial review.
subject to judicial review.
�
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However, in exercising this full jurisdiction, the Market Court must respect the limits of
judicial debate. Within the limits of the rules of public policy and
within the limits of the interpretation to be given to the pleas relied upon before the Court
Court, the Court must make its assessment, i.e. - substitute its own decision, if necessary
substitution of its own decision for that of the applicant
21-
the grounds put forward by the applicant and the pleas in law put forward by the opposing party.
In short, the Market Court may substitute its decision for that challenged by the Court of Justice, provided that the Court of Justice
In short, the Market Court may substitute its decision for the contested decision annulled by the Court, provided that the Court does not raise disputes which have not been subject to
which have not been subject to adversarial proceedings before the Court, and provided that
it does not give a decision on which the parties have not expressed their views.
in the proceedings before the Court".
In other words, the unlimited jurisdiction is limited only by the rules of public order and the interpretation to be given to the
that must be given to the means invoked. The Market Court must take into account any
The Market Court must limit the possible substitution of its own decision to the grounds adduced by the applicant and the
grounds put forward by the requesting party and the means of defence of the opposing party.
This definition corresponds to the possibilities that the Court of Cassation keeps in mind with respect to the substitution of its own decision.
This definition corresponds to the possibilities that the Court of Cassation prevents in the assessment by the appellate court of public policy pleas raised by the
judge
10.4.
Now Xquestions:
"In the main order: to decide that the dossier is ready for treatment on the merits in the sense of
Article 95, §1. 1°GBA-Act and to order theGBA to process the dossier on the merits
within the meaning of Article 98 et seq. of the GBA Act;"
and the GBA behaves in accordance with the wisdom of the Market Court in this regard, it is appropriate to
to uphold the claimed measure (see the operative part), since the Market Court - at the
risk of infringement of the separation of powers - still wishes to verify X's claims
against the contradiction by the GBA, the Market Court claims that the GBA within the period
21
22Compare Cour des marchés 22 January 2020, 2019 AR 1470, no 26.
See, for example: Cass. Sept. 14, 2017, http://www.cass.be on date, judgment
number C.16.0526.N; RABG 2018, 1028, note BOLS, P.; RABG2018, 1028, note THIRIAR,
P., where it is considered: "The court is bound to settle the dispute in
in accordance with the rules of law applicable to it. He must consider the legal nature of
He must examine the legal nature of the facts and acts relied on by the parties, and may, regardless of the legal
the legal description given to them by the parties, supplement the reasons given by them of its own motion, provided that
of his own motion, provided that he does not raise objections which the parties have rejected in their pleadings, and provided that he does not rely on the reasons stated in the pleadings.
parties have excluded by way of conclusion, that he relies only on elements that have been
properly submitted to it, that it does not alter the subject-matter of the claim and that it
does not disregard the rights of defence of the parties. It is his duty, of his own motion
to raise the legal remedies which are required to be applied by the facts which the parties have
He has the duty to raise, of his own motion, the pleas in law required by the facts which the parties have pleaded in support of their claims. These are
These are the same as the facts that the judge himself brings to light from the elements regularly submitted to him.
are regularly put before it.
r PAGE 01-00001721242-0025-0028-02-01- �
L _JJ Court of Appeal Brussels -2020/AR/329 - p. 26
as provided for in the explanatory section of this judgment, would take a position on
the claim as stated by X in her complaint.
In the exercise of this full jurisdiction, the Market Court respects the limits of the judicial debate.
judicial debate. Within the limits of the rules of public order and within the limits of
the interpretation to be given to the pleas relied upon before the Court, the
Court to substitute its own decision23g for the grounds put forward by the applicant
and to the pleas in defence put forward by the other party -
In order to prevent the Market Court from raising disputes that have not been
In order to avoid a situation where the Market Court raises disputes that have not been subject to adversarial proceedings and to ensure that no decision is reached on which
In order to avoid that the parties to proceedings have not been able to defend themselves during the proceedings before the Court, the
limited reopening of debates.
11. Court costs.
To the extent that the Court partially adjourns the case it also adjourns the costs.
For these reasons,
The court,
Deciding in rebuttal;
Having regard to Article 24 of the Act of 15 June 1935 on the use of languages in judicial matters,
Declares that the action brought by X against the Data Protection Authority is brought
admissible and in the following degree well-founded:
- overturns the decision of the Dispute Resolution Chamber of the Data Protection Authority of 28
DOS 2019-06201;
- Orders the Data Protection Authority's Dispute Resolution Chamber to render a new decision within a reasonable period of time to
adopt a new decision on the complaint lodged by X within a reasonable period of time;
- sets the reasonable period at five months from the notification of the present judgment by e-mail
to the Counsel for the parties to the proceedings;
- adjourns the case in order to examine whether the Dispute Resolution Chamber of the
Disputes Chamber of the Data Protection Authority within the prescribed period
and in order to allow Xdesgevallen to still claim the full jurisdiction of the Market
jurisdiction of the Market Court, should the Dispute Resolution Chamber of the
Data Protection Authority has not taken a new decision;
- sets the case for review (relay hearing - 20 minutes) at the public hearing on
Wednesday 24 February 2021, at 9.30 a.m. - room 1.32 ;
23Verify Cour des marchés 22January 2020, 2019 AR 1470, no. 26.
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