Autorité de protection des données – Court Ruling (Belgium, 2024)

The data subject, a Flemish-speaking Belgian citizen, advanced a complaint, in Flemish, with the Belgian DPA against the controller. The complaint was declared admissible by the DPA and, on 8 December 2022, the parties were informed of the advancement of proceedings, mentioning, in Flemish, the possibility of changing the language of proceedings. Thus, the data subject asked, in Flemish, to change the language of procedure to French, as her lawyer, substituting her previous Flemish-speaking lawyer, was Francophone. The Investigation Chamber of the DPA accepted this request. The controller appealed against this decision of the Investigation Chamber which, in turn, retreated the decision on the merits, but upheld the change of language from Flemish to French. The controller introduced an appeal against this last decision before the Market Court (a bilingual section of the court of appeal) in Brussels, who, in turn, referred two questions for review to the Constitutional Court: 1. Is [https://etaamb.openjustice.be/fr/loi-du-03-decembre-2017_n2017031916.html Article 57 of the law of 3 December 2017] (on the establishment of the DPA), compatible with [http://www.parliament.am/library/parlamentarizm2019/belgia.pdf Article 30 of the Constitution], in that it leaves the DPA itself responsible for determining the use of languages in the procedures carried out before it? 2. Is [https://etaamb.openjustice.be/fr/loi-du-03-decembre-2017_n2017031916.html Article 57 of the law of 3 December 2017], compatible with [http://www.parliament.am/library/parlamentarizm2019/belgia.pdf Articles 10, 11 and 30 of the Constitution], in that it does give rise to a difference in treatment between the people concerned by an administrative procedure before the DPA and the persons concerned by an administrative procedure before the Competition Authority? With Article 30 of the Constitution stating that “the use of languages spoken in Belgium is optional; only the law can rule on this matter, and only for acts of the public authorities and for judicial affair”. In relation to the first question, the court considered that [http://www.parliament.am/library/parlamentarizm2019/belgia.pdf Article 30 of the Constitution] allows the legislator to manage the use of languages when enacting public acts and for court decisions. The court held that the discretion granted to the DPA with regards to the choice of language of proceedings through [https://etaamb.openjustice.be/fr/loi-du-03-decembre-2017_n2017031916.html Article 57 of the law of 3 December 2017] lacks essential regulatory elements. Therefore, there is an overly-broad margin of maneuver as per the change of the languages of the proceedings in front of the DPA. Consequently, [https://etaamb.openjustice.be/fr/loi-du-03-decembre-2017_n2017031916.html Article 57 of Law of 3 December 2017] violates [http://www.parliament.am/library/parlamentarizm2019/belgia.pdf Article 30 of the Constitution] and the legislator shall remedy the found unconstitutionality. The Court also advises to apply by analogy the laws on the use of languages in administrative matters to these procedures. The court considered it unnecessary to delve into the second question referred.