Belgian DPA’s Litigation Chamber publishes procedural rules
Happy Data Protection Day!
As we found out last year, data protection remains on the rise. In the meantime, many data subjects found their way to the Belgian supervisory authority, the Data Protection Authority (the DPA) and the Belgian guardian of the fundamental principles of data protection became fully operational. The DPA’s Inspection Service started several investigations (following complaints filed or on its own initiative) and the DPA’s Litigation Chamber pronounced multiple decisions.
In these decisions, the Litigation Chamber already had to occasion to fine-tune or clarify the limited procedural rules laid down in the Act of 3 December 2017 on the establishment of the DPA (the DPA Act).
End of last year and beginning of 2021, the DPA however went a step further and issued procedural guidelines on the operations of the Litigation Chamber, which must be considered as administrative disputes body and is not subject to the Code of Civil Proceedings or administrative rules. Three policies were published respectively on 23 December 2020 and 7 January 2021: (i) a policy with respect to the publication of the decisions taken by the DPA's Litigation Chamber; (ii) a policy with respect to penalties; and (iii) a policy regarding the language of the proceedings before the Litigation Chamber.
Below we will discuss each one of those policies briefly and highlight the key-takeaways.
Publication of decisions of the Litigation Chamber
The DPA sets out that the publication of its decisions may serve two distinct purposes: (i) the general interest (transparency of the DPA's activities, accountability of the DPA, consistency of case law) and (ii) sanctioning ('naming and shaming').
In principle, all decisions of the Litigation Chamber shall be published in view of the general objective of transparency, but also visibility and accountability.
The Litigation Chamber states that all decisions include several personal data, including direct references to parties, their counsel and third parties. Publication of the decision therefore entails a processing of personal data for which the Litigation Chamber argues that it can rely on the public interest as legal basis (Art. 6 (1) (e) GDPR).
As regards the disclosure of the personal data through publication of the decision, there are three possible scenarios that the Litigation Chamber describes: (i) the anonymisation of personal data; (ii) the pseudonymisation of personal data and (iii) the publication of personal data.
The DPA first points out that true anonymisation – in the strict sense of the GDPR – is not achievable. When personal data in a decision are simply omitted or replaced by a letter of the alphabet, anonymisation does not occur since (i) the decision often still contains indirect identification data and (ii) the non-redacted decision always remains available on the DPA's own server. Hence, two options remain.
- The general rule will be pseudonymisation, whereby the personal data of all individuals will be removed or replaced. In any case, the name, national registration number and address of the natural persons are removed. Other data that make identification possible, such as the person's function, will be analysed on a case-by-case basis.
- The publication of personal data of individuals is justified for reasons of lawfulness and proportionality of processing only in certain cases. Only in those cases where the publication is effectively intended as a sanction will publication be undertaken. However, even if it is decided to publish personal data, some of them will certainly have to be deleted to guarantee the principle of data minimisation.
The Litigation Chamber also draws attention to the issue of sensitive data. For this type of data, the basic principle is that this information should be removed from the decision prior to publication. In the rare cases where this type of data must be published (if, for example, it is essential to understand the decision), a thorough prior analysis must be made of the purpose, legal basis, and proportionality of the intended publication.
As regards data of legal entities, the Litigation Chamber points out that – strictly speaking – this does not constitute a processing of personal data. Nevertheless, the Litigation Chamber confirms that the publication of such data may cause significant (reputational and other) damage to legal entities. The basic principle for data of legal entities is that they will always be deleted, with a few exceptions, in particular (i) if the publication is imposed as a sanction; (ii) at the (express) request of the legal entity itself; or (iii) if the identification of the legal entity is in the general interest.
If a decision to be published contains information that may affect the valuation of the security of a listed company, a suspension of that security may be considered, which is supported by the Financial Services and Markets Authority (FSMA).
Finally, the Litigation Chamber points out that it considers pseudonymisation and de-identification as an obligation of means and that it shall not be liable for possible re-identification.
Tips? When confronted with a threatening decision of the Litigation Chamber that might have a negative influence on your business (e.g., because of reputational damage), we in any event recommend communicating the wish for pseudonymisation in the form to respond to the envisaged administrative fine. You may also wish to draw the Litigation Chamber’s attention to specific elements that may facilitate the identification of your company (e.g., indirect identifiers, such as a description of the business of the company) and ask the Litigation Chamber to ensure such elements are omitted from the decision when published.
Pursuant to Art. 100 § 1, 12° DPA Act, the Litigation Chamber has the possibility to impose a penalty payment (“dwangsom” / “astreinte”) in the proceedings on the merits. If the Litigation Chamber has doubts as to whether the party in question will spontaneously comply with the decision, it may impose a penalty payment. A penalty payment is a financial sanction imposed in addition to the main sanction (e.g., an order to cease and desist a certain infringing practice) and which only becomes due in case the main sanction is not complied with. In such case, clarity of the decision – and especially the main sanction – is essential for the defendant to be able to effectively comply with the terms thereof and avoid the obligation to make penalty payments.
As regards the frequency, the penalty may be a fixed amount, an amount per time unit (e.g., per day of non-compliance) or per infringement.
As a rule, the Litigation Chamber opts to impose an amount per time unit as it is the most effective way to quickly put an end to the violation. The Litigation Chamber may however deviate from this rule.
As regards the actual amount of the penalty, to safeguard legal certainty and the principles of good administration, the Litigation Chamber established the following maximum amounts:
- for a legal entity: EUR 25,000 per day or 5% of the average daily turnover (based on the total worldwide annual turnover in the previous financial year) per day, starting from the day determined in the decision, whichever is higher; and
- for individuals: a maximum of EUR 25,000 per violation or per day from the day specified in the decision with an overall maximum of EUR 1,000,000.
Finally, the Litigation Chamber provides the criteria on which it shall base its decision to impose a penalty payment, namely:
- the financial strength of the defendant;
- the nature and gravity of the infringement;
- the financial benefits if the infringement would be continued;
- the repetitive character of the infringement;
- the expected resistance or cooperation of the party/parties in the execution of the main sentence; and
- the deterrent effect of the penalty payment.
Tips? The Litigation Chamber has foreseen in a mechanism to ensure the rights of defence are respected. As for administrative fines (following the case law of the Market Court), a penalty form shall be sent to the defendant. The defendant will then be given the possibility for formulate its remarks as regards the Litigation Chamber’s intention to impose penalty payments.
Language of the proceedings before the Litigation Chamber
According to Art. 57 of the DPA Act, the DPA uses the language of the proceedings according to the circumstances of the case. Nevertheless, the Litigation Chamber found it necessary to provide some further clarification to ensure legal certainty. In doing so, it explicitly excludes the application of the Act of 1935 on the use of languages in judicial matters and the Act of 18 July 1966 on the use of languages in administrative matters, in view of the specific nature of the Litigation Chamber. The policy clearly states which language will be used, both for Belgian proceedings and for international proceedings where the DPA is the leading supervisory authority.
The working languages used by the Litigation Chamber are in principle French or Dutch. German-speaking complaints are also accepted and dealt with in accordance with article 60 of the DPA Act. However, the Litigation Chamber reserves the right to deal with a German language complaint in French or Dutch.
Which language is chosen depends on the place of residence of the natural person or legal entity, whereby it should be noted that in most cases this can be deviated from after submitting a motivated request. In case the residence or registered office is in the bilingual area of the Capital Region of Brussels Capital, the language is chosen by the plaintiff. An exception is made in case the defendant is a public authority, where the language will automatically depend on the location of the defendant. If there are several plaintiffs, the language of the majority of the plaintiffs will be considered.
The language of the proceedings is determined when the Litigation Chamber is seized, after the complaint has been declared admissible. The parties are informed of this by letter. If the proceedings are commenced without a complaint having been lodged (i.e., in the event of an investigation on its own initiative or on the initiative of the Executive Committee), it will be the Inspection Service that determines the language of the proceedings.
However, the language of the defendant is also considered, which means that in certain situations, it is possible to deviate from the principle that the language of the proceedings is the language of the plaintiff:
- if the defendant is an individual and is domiciled in a language area other than the language area of the plaintiff, the defendant may simply request the Litigation Chamber to use the language of the defendant;
- if the defendant is a legal entity and has its seat in a language area other than the language area of the plaintiff, this is only considered in certain circumstances (infra);
- if the defendant is a public authority and is in a language area other than the language area of the plaintiff, the language of the proceedings is, in principle, the language of the defendant (supra);
- if there are other reasons to assume that the defendant has insufficient knowledge of the language of the proceedings, this can also be considered; and
- If there are multiple defendants, the majority of defendants will be considered or in case of a complaint, in principle the language of the plaintiff, but this can also be deviated from.
If, following a complaint, the Litigation Chamber has sent the matter to the Inspection Service for further investigation, the defendant can request to use another language than the language of the proceedings. In that case, the Inspection Service will determine the language to be used.
The hearings shall take place in the language of the proceedings. If the defendant wishes to use a different language during the hearings and makes this known through a motivated request, this can be allowed in certain circumstances. Unlike in court cases, it is only possible to have an interpreter present at the hearing in exceptional circumstances. The interpreter's costs shall be borne by the Litigation Chamber.
As already mentioned, in most cases the Litigation Chamber is open to reviewing the language of the proceedings if a motivated request is submitted. For example, the Litigation Chamber may consider both the position of the defendant (private individual, small or large company, public authority) and the position of the plaintiff (direct interest in the measure to be imposed) and any specific circumstances of the case.
Tips? In case you are confronted with proceedings before the Litigation Chamber which are conducted in another language than your own, we suggest submitting a motivated request to obtain a change of language.
Lydian’s Information Governance & Data Protection (Privacy) team remains at your disposal to assist you in connection with investigations by the Inspection Service and proceedings before the Litigation Chamber. Do not hesitate to contact us.