On 12 January 2023, the Belgian Constitutional Court judged that Article 108 of the Law on the establishment of the Data Protection Authority is unconstitutional because it does not grant interested third parties the right to lodge an appeal against a decision of the Litigation Chamber of the Belgian Data Protection Authority (the DPA) before the Markets Court.

Article 108 of the Belgian Law on the establishment of the DPA (the Law) provides that the Litigation Chamber of the DPA should notify its decision to the parties and inform them of the possibility to appeal that decision within thirty days as of the notification before the Markets Court.

The judgement of the Constitutional Court relates to a decision of the Litigation Chamber of the DPA against the Federal Public Service Mobility and Transport (the FPS Mobility and Transport) (see here in French and here in Dutch). The FPS Mobility and Transport was considered the controller of the personal data contained in the Crossroads Bank for Vehicles (the CBV). The CBV is the database where information about the registration of vehicles in Belgium is compiled, including personal data relating to the holders of the registration certificates. Aninformation platform company (the Information Platform) provided access to the personal data originating from the CBV to its clients, i.e. insurance companies, which then processed the data to draft personalised price offers for potential policyholders. The Litigation Chamber of the DPA held, amongst others, that this processing activity did not have a legal basis and violated the principle of purpose limitation under the GDPR. In its capacity of administrator of the CBV and controller of the personal data contained in the CBV, the Litigation Chamber of the DPA held that the FPS Mobility and Transport was responsible for ensuring that the personal data contained in the CBV was processed in a manner that is compliant with the GDPR, including for the processing by the Information Platform.

The Information Platform lodged an appeal with the Markets Court against the decision of the Litigation Chamber of the DPA. However, the Markets Court held that Article 108 of the Law only provided a right of appeal to the parties in the proceedings on the merit before the Litigation Chamber of the DPA. As the Information Platform was not a party in the proceedings on the merit, the Markets Court declared that its appeal was inadmissible.

The Information Platform then filed an appeal for annulment of the decision of the decision of the Litigation Chamber of the DPA before the Council of State. In the context of this appeal proceedings, the Council of State asked the Constitutional Court whether, amongst others, Article 108 of the Law violated the constitutional principles of equality and non-discrimination, if interpreted in the sense that the Council of State does not have the judicial power to decide on the appeal for annulment that is lodged by an interested third party.

In its judgement of 12 January 2023 (see here in French and here in Dutch), the Constitutional Court held that:

  • generally, when the legislator provides a right of remedy, it cannot deny such right to certain categories of individuals without a reasonable justification; and that
  • the fact that Article 108 of the Law did not provide for a right of appeal with the Markets Court to third parties that have a personal, direct, certain, actual and legitimate disadvantage as a consequence of a decision, it violated the constitutional principles of equality and non-discrimination.

The Constitutional Court held that the legislator should rectify this gap by amending the Law in order to to provide for the possibility to lodge an appeal against decisions of the Litigation Chamber of the DPA before the Markets Court and a term for doing so. Pending the adoption of these legal provisions, the Constitutional Court held that interested third parties have the right to appeal a decision of the Litigation Chamber of the DPA within thirty days of the day that they are deemed to be aware of a decision, which at earliest will be the day on which the judgement of the Constitutional Court will be published in the Belgian Official Gazette.

Interested third parties will now have the possibility to lodge an appeal against decisions of the Litigation Chamber of the DPA before the Markets Court, even if they were not involved in the proceedings on the merits, provided that they have a personal, direct, certain, actual and legitimate disadvantage as a consequence of such decision. It is noteworthy that interested third parties potentially have a right to appeal any decision within thirty days of the publication of the judgement of the Constitutional Court in the Belgian Official Gazette, which leaves the door open to lodge appeals against older decisions.