Hof van beroep Brussel - 2020/AR/329

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Hof van beroep Brussel - 2020/AR/329
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Court: Hof van beroep Brussel (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: GBA
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[edit | edit source]

Facts[edit | edit source]

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[edit | edit source]

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[edit | edit source]

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[edit | edit source]

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.