The Belgian Supreme Court ruled in a judgment of Oct. 7, 2021 that a data subject has the right to lodge a complaint with the Data Protection Authority against a processing practice that violates the GDPR (in this case, the data minimization principle in Article 6 of the GDPR), even where the data subject's personal data were not processed.

In the underlying case, a company required customers to have their electronic identity cards read by the company's computer system in order to obtain a loyalty card and to enjoy discounts on purchases. It was not possible for customers to provide their personal data by alternative means – for example by providing strictly necessary personal data only on a paper form.

A customer of the company filed a complaint against this processing practice with the Belgian Data Protection Authority. That customer had refused to provide the company with his identity card and refused to consent to the processing, and therefore had been denied a loyalty card. The complaint was investigated, and the Data Protection Authority found that the practice did in fact give rise to a breach of the data minimization principle – the principle that processing of personal data must be limited to what is necessary to achieve the relevant purposes.

Previously, the Belgian appellate court had found that no actual breach had been demonstrated. The court's reasoning was based on the fact that the customer had not provided his electronic identity card and therefore there had been no processing of his personal data.

The Belgian Supreme Court did not follow the appellate court's reasoning. The Belgian Supreme Court stressed that a breach of the GDPR also arises when a controller requires data subjects to have their personal data processed in a non-compliant manner, in order to enjoy a benefit or service. When the Data Protection Authority determines that a practice gives rise to a breach, it may take corrective measures and – where appropriate – impose an administrative fine, even if the personal data of the complainant were not actually processed.

Note: In the same judgment, the Belgian Supreme Court also ruled on the conditions for valid consent under the GDPR.

Source: Cass. 7 October 2021, Data Protection Authority v. Verreydt bv, C.20.0323.N.

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