The Constitutional Court ruled on 12 January 2023 that the absence of appeal possibilities for interested third parties against decisions of the Litigation Chamber of the DPA violates the principle of equality. It did so in response to a preliminary question from the Council of State.
Appeals against decisions of the Litigation Chamber: the letter of the law
Article 108, §1 of the Act of 3 December 2017 establishing the Data Protection Authority (DPA Act) awards exclusive jurisdiction to the Market Court to hear appeals against the decisions of the Litigation Chamber of the DPA. In 2017, the legislator deliberately chose to have appeals before the Market Court rather than before, say, the Council of State, because of its specific experience and expertise.
However, such an appeal is only open to parties in the proceedings before the Litigation Chamber. According to the Market Court, interested third parties who were not a party in the proceedings before the DPA but who are nevertheless adversely affected by a decision cannot appeal that decision before the Market Court. This point of view is based on the text of the DPA Act, which provides that the Litigation Chamber “shall notify the parties of its decision and of the possibility to appeal within a period of 30 days from the notification to the Market Court”.
Interested third parties also did not have any other remedies elsewhere. Indeed, the Council of State, seized by an appeal by such an interested third party, ruled that the Market Court has exclusive jurisdiction over appeals against decisions of the Litigation Chamber. Consequently, interested third parties end up in a vacuum where they have no way of challenging the legality of decisions of the Litigation Chamber and can only invoke a violation of their subjective rights before the ordinary courts and tribunals. The Council of State asked a preliminary question about this situation in its referral judgment of 5 May 2022.
The position of the Constitutional Court: the legal framework violates the principle of equality
In response to a preliminary question as to whether this situation is compatible with the principle of equality, the Constitutional Court ruled on 12 January 2023 that the legislator cannot deny a certain category of litigants (e.g. interested third parties) the possibility of appeal against the decisions of the Litigation Chamber without reasonable justification.
According to the Court, it is not pertinent that no appeal exists against the decisions of the Litigation Chamber for persons who were not parties to the litigation phase that led to a decision of the Litigation Chamber but who nevertheless suffer a personal, direct, certain, actual and legitimate disadvantage as a result of the decision. Moreover, the parliamentary preparation of the DPA Act gave no indication that the legislator deliberately wanted to exclude this group of interested third parties from appealing to the Market Court. Therefore, there is no reasonable justification to refuse an appeal before the Market Court.
According to the Constitutional Court, the violation of the principle of equality stems from a lacuna in article 108 of the DPA Act. The Constitutional Court ruled that it is now up to the legislator to provide a specific possibility for interested third parties. After all, they are not notified of the decision by the Litigation Chamber on an individual basis, which means that the 30-day appeal period after notification of the decision will not work for them.
Position of the interested third party: period for appeal
Pending legislative action, the Constitutional Court ruled that interested third parties – by analogy with the parties in proceedings before the Litigation Chamber – have a 30-day period to file an appeal against a decision of the Litigation Chamber with the Market Court. This period begins to run (i) from the day on which the interested third party can be deemed to have become aware of that decision; and at the earliest (ii) from the day on which the ruling of the Constitutional Court is published in the Belgian Official Gazette. This means that interested third parties will have 30 days from the publication of this judgment of the Constitutional Court in the Belgian Official Gazette ̶ which has not yet taken place on the date of publication of this article ̶ to challenge before the Market Court a decision of the Litigation Chamber that predates the publication of this judgment.
This important decision of the Constitutional Court thus opens the proceedings before the Market Court to a range of stakeholders who face disadvantageous effects because of a decision of the DPA’s Litigation Chamber but were not themselves parties before the DPA.
