How a new legislative amendment shifts the Belgian DPA toward a judicial approach

Belgian Data Protection Authority moving towards more judicial approach? In a newly adopted law, the Belgian legislator makes various changes to BDPA, notably requiring the President of the Litigation Chamber to be “a magistrate” and increasing the Litigation Chamber’s power to adopt interim decisions.

For over 4 years now, Hielke Hijmans has been in charge of the Litigation Chamber. While the BDPA has had its share of challenges (not least for budgetary reasons), and while Hielke and I have very frequently been on entirely opposite sides of a legal debate, I have witnessed the Litigation Chamber mature: its decisions became better written, procedural errors made early on started to be avoided in later cases, the legal arguments on the merits became more nuanced, etc.

I still consider many of their positions to be excessive or legally incorrect (after all, I *am* often a lawyer for companies that are on the receiving end of BDPA decisions), but I do respect the significant efforts that the Litigation Chamber has poured into improving as an administrative authority.

Going forward, the Belgian legislator clearly wants these efforts to continue and for the Litigation Chamber to be increasingly judicial-like in its approach, such as by strengthening the institutional separation between the Litigation Chamber (in charge of deciding) and the Inspection Service (in charge of investigations) and also by requiring the President/Director of the Litigation Chamber to be a magistrate.

But the legislator seems also to have recognised that the experience acquired by Hielke Hijmans can be of use – despite his lack of a prior magistrate-type position, a transitional provision includes a derogation for the current President of the Litigation Chamber from the magistrate requirement, also in case of renewal of his position.
[Given the removal of the external members of the Litigation Chamber at the end of their mandate, we’ll have to see if there is sufficient diversity of viewpoints though.]

So… game on, Hielke – looking forward to pleading more cases before you, and more jousting when a client appeals decisions of the Litigation Chamber!

Link to text of the adopted law (with far more BDPA changes than just these ones):
– PDF download (FR & NL): https://lnkd.in/esR4EcCT
– Full legislative file:
— NL: https://lnkd.in/e7M6VnaM
— FR: https://lnkd.in/ey6egyWR

data protection gdpr eprivacy privacy

Edit: see in the comments for more thoughts on the fact that the Litigation Chamber will no longer feature external members.