X1 – Court Ruling (Belgium, 2020)

Contested decision: The complainant's personal data would be processed in the context of a fan page on Facebook bearing her name and first name. The management rights of this fan page are assigned to at least one of the joint controllers (X1 and X2). The Litigation Chamber deems it sufficient to first of all contact the joint controllers in order to warn them to stop any violations against the GDPR and to act on the complainant's request to data portability. Written procedure: In view of the health risks posed by the COVID-19 pandemic and the urge for digitalisation, the Market Court was pioneering the use of the written procedure. However, the DPA made a decision after receiving a complaint through the standard form on its website and without giving the defendant the opportunity to make its point of view known (in writing). DPA's position: The DPA contests the admissibility of the appeal on the grounds that the contested decision is not subject to annulment since the decision was taken in the course of the proceedings preceding the decision on the merits. These decisions are temporary prima facie decisions, without any substantive assessment of the merits. According to the DPA's view there is no legally binding decision at stake and decisions taken at preceding the decision on the merits should be excluded from the right to an effective remedy (read: appeal), according to recital 143 of the preamble of the GDPR. * The court states that a warning (with publication) constitutes a sanction and that it follows from the mere fact of it being a corrective measure that it may be liable to have an adverse effect on the person to whom it is addressed * The court held that, although the litigation chamber may be an administrative body, it has far-reaching power, making it a semi-judicial body. As a consequence, the general principles of sound administration apply on the process * The Court of Appeal cannot use its full jurisdiction when it receives an appeal against provisional and corrective measures. In the case at hand the court annulled the decision of the DPA's litigation chamber for failure to observe principles of sound administration, more specifically because the duty to be heard was disregarded.