Why a new Brussels appellate judgment could trigger much higher GDPR fines

Very soon higher GDPR fines in Belgium? A recent judgment by the Court of Appeal of Brussels said that the Belgian DPA’s methodology for calculating fines was unclear, but that symbolic victory by one controller may create a significant risk for others…

In a judgment in which it *confirmed* the Belgian DPA’s decision on the merits, the Market Court (division of the Brussels Court of Appeal) nevertheless *reduced the fine* – 10k EUR in that case – to a symbolic Euro.

The Market Court reasons as follows:
“The Market Court tries to detect which methodology the Litigation Chamber [of the Belgian DPA] applies that allows it to render objective the choice of sanction, including the amount of possible fines.
The Market Court agrees with [the relevant controller] that the Litigation Chamber has in a manifestly insufficient manner taken into account, in the determination of the amount of the fine, the specific situation and context […] and the following mitigating circumstances
[+ list of various circumstances in that case]
Based on that, the Market Court says that the data protection fine is not “properly” justified, from a factual perspective or from a legal perspective.

So far, the Belgian DPA’s manner of calculating fines had indeed not always been easy to understand. But today the Belgian DPA has a clear formula at its disposal – the methodology proposed by the European Data Protection Board.
That methodology is not without its flaws – flaws that lawyers such as myself will likely point out in litigation to challenge fines – but there is no denying that it is readily available and supported on paper by every supervisory authority in the EU.
[Read some of our comments on that here: https://lnkd.in/ee_W2baE ]

A recent decision by the Belgian DPA referred to that methodology in passing (see https://lnkd.in/eA-XEvjS ), but it is now very likely the next one will be more strongly influenced.
And if you are a controller or processor facing that prospect, know that it means a much higher risk – so be sure to prepare your defence well.

Edit: more complete analysis here: https://lnkd.in/eUBTgUtB

Link to Market Court judgment (in Dutch): https://lnkd.in/e66N2nXs