This European country has a serious data privacy problem. And it might not be the one you think of.

Since 2018 and the introduction of the notorious General Data Protection Regulation (GDPR,) all member states have been required to establish a national data protection authority.

The role of these authorities, which are expected to be independent, is to monitor the implementation of data protection legislation through powers of investigation and remedial action. In addition to the ability to issue warnings and administrative fines, these authorities must provide expert advice on data protection issues and serve as the primary point of contact on data protection matters. All this, I repeat, in an independent manner. Yet, Belgium seems to overlook this crucial aspect.

At the root of the problem are the numerous conflicts of interest and dysfunctions within the institution. As the letter sent to the Federal Parliament by the League for Human Rights recalls, some members of the DPA hold positions in public bodies, the federal parliament and, more worryingly, in the “Data against Corona” task force operated by the federal government. In short, with obvious conflicts of interest, some members of the DPA find themselves as judge and jury in some crucial missions.

These allegations, originating directly from one of the leading figures at the head of this institution and from NGOs, are shared at the top of the pyramid. In June 2021, the European Commission sent a letter of formal notice to Belgium for violation of Article 52 of the GDPR, referring in particular to the fact that the supervisory authority must be able to exercise “in full independence the tasks and powers vested in it”, or that “the members of each supervisory authority shall remain free from any external influence, direct or indirect, and shall not seek or take instructions from anyone”. The Commission has given Belgium an ultimatum of 6 months to remedy this problem of independence, after which the country risks being punished for a major violation of the GDPR. Regrettably, it is not the only complaint that targets Belgium’s data management.

At the end of last summer, Belgium declared a state of health emergency and introduced its famous “Pandemic Law” (I’ll skip the laborious process of passing a law in a federal state). Serving as a legal basis for a series of measures taken to limit the spread of the virus, including the introduction of the Covid Safe Ticket, the government ordered the parliament not to submit this project to the national data protection authority, unquestionably violating one of the major principles of the European regulation.

In the end, neither the federal law bill nor the regional ordinances and decrees went through the national data supervisory process, despite the State Council’s reminder of the law.

In the current context, perhaps a symbolic fine from the European Commission could be a blessing in disguise and be the necessary wake-up call for Belgians to understand the democratic importance of an independent data protection mechanism. Meanwhile, Belgium has until January 12, 2022 to meet the conditions imposed by the European Commission, otherwise it would become the first state to be punished for a violation of the GDPR. Yet here, no one seems to really care.

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