Proximus – Court Ruling (Belgium, 2020)

Proximus appeals the provisionally enforceable aspect of its appealed decision of the Belgian DPA. Is the decision of the Belgian DPA provisionally enforceable even though it is under appeal? The Court of Appeal decided the following: Article 66 GDPR gives the possibility for a procedure of urgency and from this article (and Article 66 and Article 62 GDPR), the European lawmaker did not intend to make decision of a DPA provisionally enforceable. The Court continues to explain that decisions are provisionally enforceable during an appeal when the appealing courts entirely reviews the case (rules regarding independency and impartiality of judges are the same). The DPA however, is a body created by an administrative body of the government and its judges are appoint by vote of the Chamber of Representatives and thus the same rules regarding judges do not apply. The Court of Appeal does not entirely review the administrative decision, but only its merits regarding applicable law and good governance. In cases of urgency and when requested, the provisional enforceable aspect of the decision can be suspended. The appeal against an administrative decision can only be effective if there is no pressure o the appealing party to immediately pay a fine or to align itself with the appealed decision. The Court of Appeal states that the DPA failed to adequately motivate its decision and thus the provisionally enforceability cannot be granted automatically. When the DPA sends a document to a defending party, principles of good governance must allow for a reply by the party and the DPA must take the reply into consideration in its decision. The name of the 'document' of the reply does not matter, as the procedure for administrative bodies are not as stringent as those for courts. If the DPA only considers the 'formal conclusion' when motivating its decision (and not the aforementioned 'document'), the duty of motivation is breached. If the DPA would be able to 'chose' to which