Authors: Heidi Waem – Nicolas Becker

Following a reference for a preliminary ruling by the Belgian Council of State, the Belgian Constitutional Court ruled that an interested third party should be able to bring an appeal against a decision of the Litigation Chamber (the sanctioning body within the Belgian Data Protection Authority). As article 108, §1 of the Act on the establishment of the Data Protection Authority of 3 December 2017 does not foresee this possibility, it is considered unconstitutional.

Currently, only persons (both natural and legal persons) who are a party to the proceedings before the Litigation Chamber can appeal a decision. Persons who are not a party to the proceedings but who nevertheless suffer adverse consequences, so-called “interested third parties” do not have this right.

The Constitutional Court was invited to review this difference in treatment in light of Articles 10 and 11 of the Constitution and Article 78 GDPR paragraph 1, which grants natural and legal persons the right to “an effective judicial remedy against a legally binding decision of a supervisory authority concerning them”.

The Constitutional Court assessed the objectives pursued by the Belgian legislator and the preparatory work of the Act of 3 December 2017. It concluded that it was not relevant, nor was it the intention of the legislator, that the appeal against decisions of the Litigation Chamber is not open to third parties who suffer personal, direct, certain, actual, and legitimate damage as a result of such a decision.

The Constitutional Court concluded that the difference in treatment submitted to the Court between parties to the proceedings and interested third parties breached Articles 10 and 11 of the Belgian Constitution. Article 108 of the Act of 3 December 2017 was further deemed unconstitutional, as it does not include a rule whereby interested third parties may appeal before the Market Court. The Constitutional Court invited the legislator to fill this gap in Article 108 of the Act of 3 December 2017 by creating a specific time limit regime regarding appeals for interested third parties.

Pending the intervention of the legislator, the Constitutional Court provides for a transitional measure allowing interested third parties to file an appeal against a decision of the Litigation Chamber within thirty days (i) of the day that they are presumed to have been aware of the decision or (ii) of the day of the publication in the Official Gazette (for older decisions of the Litigation Chamber for which the other criterium lapsed before said publication). In other words, this appeal is potentially available for older decisions (without limitation in time).

This decision is important for companies whose rights or interest may be directly or indirectly impacted by decisions of the Belgian Data Protection Authority involving other parties, e.g. where there is a finding in a decision on the qualification of an interested party which impacts its situation or where there is a decision on the unlawfulness of a tool or processing activity which is used or performed by an interested third party.