On 7 February 2024, the Belgian Official Gazette published the Act of 7 September 2023 amending the Act of 3 December 2017 establishing the Data Protection Authority (“DPA Establishment Act") regarding the possibility for third-party stakeholders to intervene in proceedings before the Disputes Chamber and to lodge an appeal against a decision of the Litigation Chamber.
Old Article 108 DPA Establishment Act
Before the act was amended, only parties to proceedings before the DPA’s Litigation Chamber could appeal to the Market Court. The Market Court interpreted this to mean that third-party stakeholders who were not parties but were nevertheless adversely affected by a decision of the DPA Litigation Chamber could not appeal the decision.
In our earlier post, we explained that on 12 January 2023, the Constitutional Court ruled that the lack of an appeal option for third-party stakeholders constituted a violation of the principle of equality. The Constitutional Court ruled that the legislature denied an appeal option to that category of litigants without reasonable justification.
Pending legislative intervention, third-party stakeholders could, within a period of 30 days after the publication of the Constitutional Court’s ruling in the Belgian Official Gazette, appeal against a decision of the Litigation Chamber of the DPA to the Market Court.
New Article 108 DPA Establishment Act
Meanwhile, the legislator has worked out a procedure which now also allows third-party interested parties to intervene in the proceedings before the Litigation Chamber itself. This goes beyond the decision of the Constitutional Court, which only ruled on the intervention of third-party stakeholders in an appeal procedure before the Market Court. By this means, the legislator wants to avoid a situation where certain discussions would only come up for the first time before the Market Court.
In addition, any third-party interested party who suffers a personal, direct, certain, actual and legitimate disadvantage due to a decision of the Litigation Chamber of the DPA, and demonstrates this interest by lodging an appeal against that decision, may start an appeal procedure before the Market Court. This is possible within 30 days of the publication of the decision on the DPA’s website.
The new regulation will enter into force on 17 February 2024.
Eubelius will be happy to assist you if you wish to file an appeal against a decision of the DPA that is unfavourable to you.
