The draft law to establish this entity has been approved by the Belgian Parliament on 16 November 2017, and will enter into force on 18 May 2018, apart from the nomination of new members, which will be possible upon publication of the law. Unlike the old Privacy Commission, which had an advisory function, the new Data Protection Authority is to fulfil the function of control- and sanction authority. To achieve this goal, the Data Protection Authority’s Inspection Service has received broad investigative powers.
The Data Protection Authority will consist out of six main organs:
- the Executive Committee which consists out of the directors of each of the other organs;
- the General Secretariat which, amongst other duties, takes care of the daily organization, follows up developments that can impact data protection, and also provides advice on impact assessments;
- the First-line Service which receives requests and complaints, starts mediation procedures, provides information on data protection and works to improve general awareness;
- the Knowledge Center, which consists out of technical experts to advise public institutions;
- the Inspection Service with investigative powers; and
- the Litigation Chamber which can impose sanctions.
The Data Protection Authority remains, as its predecessor, linked to the Chamber of Representatives, but does acquire legal personality, which the Privacy Commission did not have. Separate from the organs of the Data Protection Authority, an advisory board is created, with a composition that reflects society, and with the task of advising the Executive Committee as to the needs and challenges for different actors in society.
The Data Protection Authority’s tasks can, broadly, be summarized in four categories.
- It is to provide information and advice both to private and public persons on privacy law compliance.
- It assists data controllers and processors with preventative measures, including assistance with the conducting of data protection risk-assessments.
- It will review measures taken by data controllers and processors through its Inspection Service, for which it has investigative competences.
- Its Litigation Chamber can impose sanctions ranging from warnings to fines. The Data Protection Authority has the power to bring a case before the Belgian courts, although its core focus is conciliation, not litigation.
As can be seen from the tasks above, it is intended that any person, including physical, legal persons and public institutions can file a request for advice or a complaint.
This new entity’s competences are much broader and clearer than those of its predecessor, and it is to be expected that it will use its newfound flexibility actively. The General Data Protection Regulation was drafted with the cooperation between data controllers, processors and supervisory authorities in mind, to enhance the general level of data protection. This new body is created with the means to achieve this goal, but how this will play out in practice remains to be seen.
Article provided by: Steven De Schrijver (Partner, Astrea Law)