Court of Appeal of Brussels - 2020/AR/582

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Court of Appeal of Brussels - 2020/AR/582
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Court: Court of Appeal of Brussels (Belgium)
Jurisdiction: Belgium
Relevant Law: Article 20 GDPR
Article 58(2)(a) GDPR
Article 58(2)(c) GDPR
Article 755 Ger.W.
Decided: 28.10.2020
Published: 28.10.2020
Parties: X1
X2
ADP/GBA
National Case Number/Name: 2020/AR/582
European Case Law Identifier:
Appeal from: APD/GBA (Belgium)
Bevel nr. 14/2020
Appeal to: Not appealed
Original Language(s): Dutch
Original Source: ADP/GBA Belgium (in Dutch)
Initial Contributor: Matthias Smet

The Brussels Court of Appeal held that for the purposes of assessing the admissibility of the appeal, it is sufficient that the decision "may be" liable to have an adverse effect. The court also stated that it cannot substitute itself for the DPA's Litigation Chamber, except within the framework of full jurisdiction.

Regarding the litigation chamber of the Belgian DPA, although it may be an administrative body, it has far-reaching powers, making it a semi-judicial body. When dealing with a complaint, the DPA must at all times observe and respect the elementary rules of sound administration.

English Summary[edit | edit source]

Facts[edit | edit source]

Contested decision:

The complainant's personal data would be processed in the context of a fan page on Facebook bearing her name and first name. The management rights of this fan page are assigned to at least one of the joint controllers (X1 and X2). The Litigation Chamber deems it sufficient to first of all contact the joint controllers in order to warn them to stop any violations against the GDPR and to act on the complainant's request to data portability.

Written procedure:

In view of the health risks posed by the COVID-19 pandemic and the urge for digitalisation, the Market Court was pioneering the use of the written procedure. However, the DPA made a decision after receiving a complaint through the standard form on its website and without giving the defendant the opportunity to make its point of view known (in writing).

DPA's position:

The DPA contests the admissibility of the appeal on the grounds that the contested decision is not subject to annulment since the decision was taken in the course of the proceedings preceding the decision on the merits. These decisions are temporary prima facie decisions, without any substantive assessment of the merits.

According to the DPA's view there is no legally binding decision at stake and decisions taken at preceding the decision on the merits should be excluded from the right to an effective remedy (read: appeal), according to recital 143 of the preamble of the GDPR.

Dispute[edit | edit source]

Holding[edit | edit source]

  • The court states that a warning (with publication) constitutes a sanction and that it follows from the mere fact of it being a corrective measure that it may be liable to have an adverse effect on the person to whom it is addressed
  • The court held that, although the litigation chamber may be an administrative body, it has far-reaching power, making it a semi-judicial body. As a consequence, the general principles of sound administration apply on the process
  • The Court of Appeal cannot use its full jurisdiction when it receives an appeal against provisional and corrective measures.

In the case at hand the court annulled the decision of the DPA's litigation chamber for failure to observe principles of sound administration, more specifically because the duty to be heard was disregarded.

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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.

Court of Appeal Brussels - 2020/AR/582 - p. 2




ON:


1. X1 [...]


2.X2, [...]


requesting parties,

both represented by [...].


IN RETURN FOR:


1. THE DATA PROTECTION AUTHORITY, public institution with legal personality, ON

0694.679.950, with registered office in 1000 BRUSSELS, Drukpersstraat 35,
defendant,


represented by mr. CLOOTS Elke, Mr ROETS Joos and Mr SOTTIAUX Stefan, lawyers in 2018
ANTWERP, Oostenstraat38 bus 201.





                                             * * *



1. Jurisdiction of the Market Court.

1.1.

The Court of Appeal derives its jurisdiction from an application lodged with the registry of the Court of Appeal in
Brussels on April 22, 2020 by X1 and X2 against the

DATA PROTECTION AUTHORITY (hereinafter "DPA").

By this application they appeal against the decision 14/2020, of 14 April 2020 of the

Disputes room of the GBA known under file number DOS-2020-01192, send them by e-mail at
notified on 14 April 202.














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1.2.
In the petition, X1 and X2 ask:
        Declare this appeal admissible, admissible and well-founded;

        In order to set aside the grounds of appeal cited above, the contested decision and
        again doing justice:
        - declare the respondent (GBA) incompetent to take cognizance of the
        original complaint of the person concerned;
        - to declare at least the original complaint of the person concerned inadmissible;
        - more subordinated to dismiss the original complaint as unfounded.

       To pay the legal costs to the respondent, including the
       role rights and justice allowance, budgeted on the standard and basis
       legal aid for non-monetary matters;

1.3.

On March 5, 2020, Mrs. Z would have filed a complaint with the GBA against X2 and X1.

The complaint would relate to the processing of the complainant's personal data via a
fan page on Facebook that bears her name and first name. It would be the fan page that

to find is via the hypoink [...].

According to the complainant, the rights to manage the fan page have been assigned to at least one
of the joint controllers. The complaint argues that the

processing is not lawful in accordance with Article 6 of the GDPR. The complainant wishes that these rights
the management of the fan page can be transferred to her, so that she can manage it herself
exercise over the fan page that bears her name and first name.

The complainant and at least one of the joint controllers should

of the complainant's professional artistic activities over a period of many years
have had agreements and agreements, in which the management of the fan page came about.

The complaint alleges possible violations of Articles 6; 7; 12, paragraph 3; 20 and 21 GDPR fixed

to be set. The complainant asks the Data Protection Authority to start an investigation,
to impose a sanction on the defendants and to order the defendants to retain the rights for administration
from the fan page on Facebook to make the complainant about

                                                            1
On March 10, 2020, this complaint was declared admissible on the basis of Article 58 WOG and
transferred to the Disputes Chamber, which will be sent to the Disputes Chamber on 14 April 2020, the date on which the complaint is filed according to X1 and
X2, was first brought to their notice without ever having any defense in this regard
could have conducted, and the contested decision was taken on that date.



1Law of 3 December 2017 establishing the Data Protection Authority


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                  • '
            L _JCourt of appeal Brussels -2020/AR/582- p. 6




2. The written procedure (Article 755 Judg. W.).

Partly in view of the health risks that the COVID-19 pandemic entails and at the same time

in order to take an active step towards a modernization of the judiciary and a
adapting the legal process to the digital evolutions of the past decades, the Marktenhof
pioneer for the application of the written procedure as provided for in Article 755 Ger. w.


To this end, the parties to the proceedings were invited to make use of the

written procedure.

By e-mails dated 2 June 2020, the respective parties to the proceedings have agreed to settle the case

be dealt with by written procedure.



3. The claims before the Market Court.

By statement lodged at the registry on August 17, 2020, X1 and X2 claim:
        Declare this appeal admissible, admissible and well founded;

        To set aside the grounds of appeal cited above, and to renew the contested decision
        doing justice:

               - declare the respondent {GBA) incompetent to take cognizance of the
               original complaint of the person concerned;
               - declare at least the original complaint of the person concerned inadmissible;

               -more subordinate to dismiss the original complaint as unfounded.
        To pay the legal costs to the respondent, including the RA/rights and

        legal action fee, budgeted on the standard and basic legal action fee for
        not in monetary value;"


By summary conclusion filed on September 17, 2020, the GBA claims:
        In principle, declare the applicants' application inadmissible, at least unfounded
        explain;

               In any event, order the applicants to pay the costs, including
        of the basic amount of the legal compensation, estimated at 1,440 euros."



4. The facts.


In the contested decision, the GBA provides the following statement of facts:




2cf. Richard SUSSKIND, Online Courts and the Future of Justice, Oxford University Press, 2019.



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    Pursuant to Article 95, §2 of the Law of 3 December 2017 establishing the

    Data protection authority, the Geschlllenkamer sets the joint
    controllers Informed that a file is pending as a result of a complaint

     Is.


    The complaint concerns the processing of the complainant's personal data via a fan page on
    Facebook that bears her name and first name. It mainly concerns the fanpaglna that can be found
    cusp the hyperlink [...]. The rights to manage the fanpaglna are according to the

    complainant assigned to at least one of the joint controllers.
    The complainant argues that the processing is not lawful in accordance with Article 6 of the GDPR.

    The complainant wishes that these rights to manage the fan page be given to her
    transferred, so that she herself can exercise control over the fanpaglna that heren

    first name.


    The complainant and at least one of the joint controllers had
    of the complainant's professional artistic activities over a period of many years
    agreements and agreements, in which the management of the fan page was established.


    On March 5, 2020, the complainant, represented by her counsel, submits a complaint to the

    Data Protection Authority. The complaint alleges possible Violations of Article 6; 7; 12, paragraph
    3; 20 and 21 GDPR can be determined. The complainant requests the Data Protection Authority to

    initiate an investigation, impose a sanction on the defendants and order the defendants to
    transfer the rights to manage the fan page on Facebook to the complainant.


    On March 10, 2020, the complaint was declared admissible on the basis of Article 58 WOG and was
    transferred to the Disputes Chamber in accordance with Article 62, §1 WOG.



    5. T he legal framework of the jurisdiction of the Marktenhof.


5.1. 3
The matter is regulated by the GDPR:



3
  Regulation (EU) 2016/679 of 27 April 2016 of the European Parliament and of the Council on the
protection of natural persons with regard to the processing of personal data and concerning
the free movement of such data and repealing Directive 95/46/EC (General Regulation
data protection).


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6. Admissibility of the action against a decision of the Disputes Chamber of the

      GBA in the context of Articles 94 to 97 WOG.

6.1.
                   The GBA contested the admissibility of X1 and X2's story. Sides:

        "First plea of defense: the appeal is inadmissible since the contested decision was not
       is subject to annulment - at the very least the appeal is unfounded as the contested

       decision is not grounded in appeal (defense against the applicants' first to fourth pleas)
       13. The contested decision is not subject to annulment, at least the contested
       decision does not constitute a complaint on the part of the applicants.

       14. Indeed, the contested decision was taken by the Disputes Chamber of the
       Data Protection Authority, in the context of the procedure prior to the

       decision on the merits (Articles 94-97 WOG). This 'light procedure' was introduced by the
       WOG, with a view to an effective enforcement policy. This is confirmed in the

       Explanatory Memorandum of Article 95
       WOG:
               "This article describes the cases in which the litigation chamber can act on

               a file relatively quickly and with a limited number or even without
               investigative measures of its own accord, insofar as the inspection service has already

               investigative measures. It is therefore a "procedure light"
               which also involves limited notice to the parties involved. The
               The legislator therefore meets the requirements at various stages in a complaint handling process

               need for the Data Protection Authority to be able to act selectively with
               with a view to an effective and efficient enforcement policy, in particular:

                      • in the initial handling of a complaint or request by the
                      frontline service;

                      • by the powers of the Inspector General at the conclusion of the
                      file;
                      • by entering a "procedure light" at the level of the

                      litigation room.
       Pursuant to Article 95, § 1, 4-6° of the WOG, the Disputes Chamber is, among other things, authorized to

       to make the following decisions in this light procedure:
       - formulate warnings (4);
       - order compliance with the data subject's requests to exercise his/her rights
                 °
       exercise (5);
       - order that the person concerned is informed of the security problem (6);

       These decisions are therefore merely provisional prima facie decisions of the
       Disputes Chamber, in which no substantive assessment is yet made on the merits. In
       these decisions, the controller is merely informed that -ilike

       each legal subject - is obliged to comply with the obligations of the GDPR, and that
       he may have committed a violation of the GDPR.




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A warning (with publication} is actually a sanction, an order to exercise the right of a complainant
honoring goes to the heart of the matter, and so according to the Marktenhof it is not with the AVG and the
European law reconcilable in principle to enforce the decisions taken in the previous phase

concluding the right to an effective judicial remedy as the GBA wrongly tries
to do.


6.3.
                                   ° °
The measures of article 95 § 1, 4 to 6 WOG are corrective measures that have an impact
may have on the person to whom the recommendations are addressed, in evidence of which Article 95 § 2
WOG immediately provides rules for taking cognizance of the complaint. From the mere factual fact that

it concerns corrective measures, it follows that they can be "grievous" for the
person to whom they are addressed.


In order to assess admissibility, it is sufficient that the decision "may" contain grounds for appeal, it will
in particular belong to the court to determine whether or not the decision is ground for complaint, this

relates to the merits of the decision, not to the admissibility of the appeal
set story.


6.4.
The Disputes Chamber of the GBA was aware of this, because in the decision it
has expressly stated that a remedy against the decision may be brought before the

Market Court.


6.5.
The story set by X1 and X2 is admissible.



7. The merits of the claim for annulment of the decision of the
                                   15
      Disputes Chamber of the GBA •

7.1.
X1 and X2 contest the decisions of the Disputes Chamber of the GBA, stating that

there is a violation of the rights of defense and a lack of justification.






15
  The GBA is an administrative authority, the Disputes Chamber is not an administrative judge in itself, but
only a (non-autonomous) body of an administrative authority that has the power to
administrative sanctions of a criminal nature (without these sanctions being effective criminal law)
sanctions) to be imposed.



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7.2.
They argue that the decision of the Disputes Chamber of the GBA was taken completely unilaterally

without knowing X1 and X2 to some extent and without sufficient motivation.

According to them, this is a violation of fundamental rights and the rights of the defence.


The data show that X1 and X2 were not informed of any complaint and that through
the contested decision without notice and without the possibility of any contradiction

measures were imposed which affect and have changed their legal position.


They argue that it is wrong that no investigation was conducted, that no party
was heard and that no opportunity of defense was provided.


In its conclusion, the GBA does not defend against this plea.

7.3.

In accordance with article 92 WOG, the Disputes Chamber may be seized:


       1 °by the frontline service, in accordance with Article 62, § 1, for the treatment of a
       complaint;
       2 °by a party concerned who lodges an appeal in accordance with Articles 71 and 90

       against measures taken by the inspection service;
       3 °by the inspection service after it has concluded an investigation in accordance with article
       91 2.


In this regard, it follows from the text of the contested decision:
        Pursuant to Article 95, §2 of the Law of 3 December 2017 establishing the

        Data protection authority, the Geschlllenkamer sets the joint

        controllers Informed that a file is pending as a result of a complaint
        Is.


and further:
        On March 5, 2020, the complainant, represented by her counsel, submits a complaint to the

        Data protection authority. The complaint alleges possible Violations of Article 6; 7; 12, paragraph
        3; 20 and 21 GDPR can be determined. The complainant requests the Data Protection Authority to

        to initiate an investigation, to impose a sanction on the defendants, to order the defendants to
        rights for the management of the fanpaglna on Facebook to make complainant about.


        On March 10, 2020, the complaint was declared admissible on the basis of Article 58 WOG and was

        transferred to the Disputes Chamber in accordance with Article 62, §1 WOG.



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It does not reflect elementary care, elementary reasonableness, and elementary
ensure impartiality and respect for equality when an administrative authority
makes a decision without having previously informed the party against whom it is making this decision

informed about the existence of a complaint and about the possibility that a decision - albeit in
the preceding phase, but still with the impact of the measures of Article 95 § 1, 4 and/or
 °
5 WOG-will or could be affected.

It shows a failure to comply with the duty of hearing if the party to whom a

decision will or could be made is not given the opportunity to state his position in writing
to be announced with regard to the decision to be taken (see the aforementioned article 95 § 1, and/or 5° WOG) and

moreover, they are not given the opportunity to be heard about this.

It appears from the motives of the contested decision (see extenso above) that the

Disputes Chamber immediately after cognizance of the complaint - and thus after only one single point of view
have read and then via a standard form on the GBA website - a decision

Has taken. This is contrary to the most basic rules of good governance.

7.5.

The ignorance of the basic rules of good administration - which, incidentally,
credibility of the independence of the Dispute Chamber is questioning - it suffices that

the contested decision would be annulled without further investigation into its content
until a different decision could apply.


7.6.
X1 and X2 demand that the Market Court, after the decision of the Disputes Chamber of the GBA,

destroyed would again do justice and decide that the Disputes Chamber has no jurisdiction
to take cognizance of the original complaint of the person concerned, or the

would declare the original complaint of the person concerned inadmissible and at least unfounded.

This measure cannot be granted hic et nunc. It does not belong to the Marktenhof to

to take the place of the Disputes Chamber of the GBA unless within the framework of the full
jurisdiction.


Since the story in this regard is for provisional corrective measures in accordance with article
58. 2 a and c AVG and 95 § 1, and 5°WOG, there is no reason for the Marktenhof to

would exercise full jurisdiction.


To the extent that the request extends further, ishic et nunc is unfounded.

7.7.

The statement of the Dispute Chamber of the GBA:



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    From a procedural economic point of view, the desirability of the profession can therefore be questioned
    put. Indeed, the applicants were given every opportunity to make a claim in the proceedings on the merits before the

    Disputes Chamber to conduct their defence. It cannot therefore be the intention to
    to submit an appeal to the Court of Appeal on the merits of the Disputes Chamber Mutatis mutandis
    Furthermore, your Court stated that it is not a matter of being "averse to the rules regarding prior
                                                                                     }"16
    to conduct a disguised procedure on the merits immediately before the Court

is not serving.


The fact that a citizen will "later" have the opportunity to claim a
respect for the rules of good administration can never be a safe-conduct for the
administrative authority to- pending what will come 'later' or to intervene -

have meanwhile violated the basic rules of good governance and the rights of citizens
not yet guaranteed.


The rules of good administration and of respect for citizens' rights must at all times
and unconditionally respected. The Marktenhof also monitors this in the
under the GDPR required an effective remedy.



8. The court costs.


The GBA is the unsuccessful party, it is obliged to pay the legal costs in
under X1 and X2 to be estimated on the basis of legal compensation for non-cash
appreciable disputes, being €1,440.00.



FOR THESE REASONS,

THE COUNCIL,

Judging by contradiction,


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

Declares the story set by X1 and X2 admissible and valid;


Does the decision of the Dispute Chamber of the Data Protection Authority of April 14, 2020
known under number 14/2020 - file number DOS-2020-01192, in the context of the procedure

prior to the decision on the merits (ticks 94-97 WOG).



16Marktenhof16 September 2020, roll number 2020/AR/1160, p. 4.


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              L _JCourt of appeal Brussels -2020/AR/582- p. 24




Orders the Data Protection Authority to pay the court costs for X1 and X2
on the contribution to the Budget Fund of €20.00, the rollover fee of €400.00 to be collected by the FPS
Finance in accordance with the Royal Decree of 28 January 2019 on the implementation of the

Code of Registration, Mortgage and Court Fees and €1,440.00
court fee.

                                       * * *


This judgment was rendered by the 18N Chamber of the Court of Appeal in Brussels, composed of:
M.BOSMANS Councilor dd.chairman
A-M. WITTERS Councilor

0.DUGARDYN Deputy Counselor
who have attended all the hearings and who have deliberated on the matter.
assisted by A. De Clerck, registrar,











A.A-M. WITTERS O.D

Mrs. W. Counselor A-M. WITTER finds it impossible to pronounce the pronounced

to sign.

The chairman of the 18N Chamber has pronounced this judgment in accordance with art. 782bis, first paragraph
Ger.W.in public session of October 28, 2020.

M. BOSMANS Councilor dd.chairman
A.DE CLERCK Registrar












                                                    M. BOSMANS



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