Third parties can now appeal Belgian DPA decisions before the Market Court

The Belgian Constitutional Court ruling no. 05/2023 of 12 January 2023 grants third parties the right to appeal decisions -- even in disputes they were not involved in -- from the Belgian Data Protection Authority (DPA) before the Market Court.

Facts

The Market Court had rejected the action for annulment against a decision of the litigation division of the Belgian Data Protection Authority (“DPA”), lodged by a private company that was a third party to the dispute that led to said decision. The Market Court justified its finding that the appeal was inadmissible by stating that it is only competent to handle appeals against decisions of the DPA by parties of the said dispute, not by third parties. The private company in question also challenged the disputed decision of the DPA before the Belgian Council of State, which referred a question to the Constitutional Court for a preliminary ruling. The question was whether depriving third parties of the right to appeal a DPA decision harming them before the Market Court complies with Articles 10 and 11 of the Belgian Constitution.

Legal context

Article 78, §1 of the EU GDPR reads, “without prejudice to any other administrative or non-judicial remedy, each natural or legal person shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them”.

Article 108 of the Belgian law of 3 December 2017, establishing the Belgian DPA, provides that the decisions of the latter’s litigation division may be appealed before the Market Court of the Brussels Court of Appeal by the parties to the dispute in question. However, this provision does not entitle third parties who are not parties to the dispute but who’d have claims against it to appeal it before that specific court.

Court decision

In its ruling, the Constitutional Court:

1. rules that the fact that Article 108 of this law does not include a rule of appeal for third parties not involved in the initial dispute in question is inconsistent with Articles 10 and 11 of the Constitution. The court reached this conclusion by pointing out that the legislator’s intention, as evidenced in the law’s preparatory work, was (a) to confer jurisdiction over appeals against decisions of the DPA to the Market Court in the context of an objective and complete competence, (b) including for third parties who were not parties to the administrative litigation phase that led to the litigious decision;
2. gives a clear indication of the remedy to be set by the legislator, i.e. to extend the appeal to the Market Court to third parties, based on terms and conditions yet to be defined, and
3. more surprisingly, organises a transitional regime that appears to allow all third parties harmed by a decision of the litigation division of the DPA to appeal it before the Market Court as of today: time for appeal of 30 days from the date on which one can reasonably consider that one has knowledge of the decision, and at the earliest 30 days from the publication of the decision of the present Constitutional Court in the Belgian Official Gazette as regards old decisions.

Third parties affected by a decision of the Belgian DPA (even very old ones) resulting from a litigation to which they were not part thus seem to be granted a new 30-days term of appeal by this decision that will start in the coming days.