Uncategorized Archives - STUDIO LEGALE

As a data subject whose personal data is processed, you invariably have the right to access. However, this right of access is not absolute. We clarify what this means, how you exercise this right and what response should be given.

First of all, the terminology used is somewhat misleading as it creates the impression that you can actually inspect the processing itself, when the reality is more nuanced. Rather, it concerns a right to know about the processing of your personal data. You can exercise this right at any time, regardless of whether you were informed about the processing of your personal data at the start of the processing.

Article 15 GDPR clarifies what information you are entitled to, beyond the actual personal data itself, when exercising your right to access:

the purposes of processing;
the categories of personal data concerned;
the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
the period for which the personal data are expected to be stored or, if that is not possible, the criteria for determining that period;
the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;
the right to lodge a complaint with a supervisory authority;
where the personal data are not collected from the data subject, any available information as to their source;
the existence of automated decision-making, including profiling, and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject;
when transfers are made to a third country or international organisation, the appropriate safeguards taken.

In principle, you are entitled to one free copy; for additional copies, the controller may charge a reasonable fee in proportion to the administrative costs.

If you make your request for access in electronic form (e.g. by e-mail), it is sufficient for the controller to send you the copy in electronic form as well, unless you explicitly request otherwise.

However, your right to access is not absolute. Article 15.4 GDPR clarifies that this must not infringe on the rights and freedoms of others.

For example, if you exercise your right of access vis-à-vis your (former) employer, the latter has the right and actually even the duty to anonymise/censor the evaluation forms as the personal data of others (e.g. the evaluator, colleagues) must also be protected under the GDPR. In this view, the controller also has the right to request a clarification of your request. After all, if you are already employed for a long period of time, it may be disproportionate and impose an excessive burden to have to anonymise/censor and copy all data over the entire period in order to comply with your request. A concrete assessment must always be made in this regard.[1]

In the recent ECJ judgment of 4 May 2023, the Court clarified that the right of access can extend very broadly in the sense that copies of the underlying documents or extracts must be provided. However, never should one lose sight of the rights and freedoms of others in doing so:

“the right to obtain from the controller a copy of the personal data undergoing processing means that the data subject must be given a faithful and intelligible reproduction of all those data. That right entails the right to obtain copies of extracts from documents or even entire documents or extracts from databases which contain, inter alia, those data, if the provision of such a copy is essential in order to enable the data subject to exercise effectively the rights conferred on him or her by that regulation, bearing in mind that account must be taken, in that regard, of the rights and freedoms of others.”[2]

Your request in itself is not subject to any formal conditions. However, with a view to dealing with it efficiently, you are well advised to already clearly identify yourself since every controller obviously has a duty to proceed with identification before providing any information.

Subsequently, the Controller has in principle one month to comply with your request. Within this period, he must either provide the data or inform you of the reason why he believes he should/could not do so and inform you of your right to lodge a complaint with the supervisory authority (GBA) and the possibility of a subsequent appeal to the court (Market Court). The period can be extended by an additional two months if the controller notifies you of this before the expiration of the original period.

If you have any further questions about (the exercise of) your right of access, you can always contact us by e-mail: gpdr@studio-legale.be or by telephone on 03/216.70.70.

[1] For example: Beslissing ten gronde 15/2021 van 9 februari 2021 van de geschillenkamer van de GBA

[2] HvJ 4 mei 2023, C-487/21, nr. 45.

NEWSFLASH: LEGAL INTEREST RATES RISE SUBSTANTIALLY

Newsflash: Legal interest rates rise substantially

Belgian legal interest rates on late payments do not escape the current economic and financial climate either and undergo a substantial increase as from 1 January 2023 both in terms of the ordinary legal interest rate as well as that applicable to trade transactions.

The FOD Finance has just communicated the legal late payment interest rate applicable as from 1 January 2023.[1] You can find the information sheet here.

The ordinary legal interest rate rises from 1,50% to no fewer than 5,25% as from 1 January 2023.

The interest rate for ” trade transactions ” in turn increases from 8% to 10.50%. The application of this interest rate is limited to “commercial transactions” which are defined in accordance with the Late Payment Act[2] as: “A transaction between companies or between companies and public authorities leading to the supply of goods, the provision of services or the design and execution of public works and building and civil engineering works against remuneration.”

As a debtor, you will therefore have to more than ever pay attention to your payment deadlines as the interest always provided for by law as compensation for late payment has risen substantially, regardless of what may be contractually provided.

This may possibly be an appropriate time for you as a company to have your general terms and conditions as concerning late payments reviewed. In addition, there have been important legal changes that should also be taken into account during such a review in relation to unlawful clauses. See our prior article on this subject on Jubel.[3]

For further questions on this subject, you can always contact us by e-mail: joost.peeters@studio-legale.be or by phone: 03/216.70.70.

[1] See: https://financien.belgium.be/nl/over_de_fod/structuur_en_diensten/algemene_administraties/thesaurie/rentevoet_betalingsachterstand_handelstransacties

[2] Wet van 2 augustus 2020 betreffende de bestrijding van de betalingsachterstand bij handelstransacties.

[3] https://www.jubel.be/onrechtmatige-bedingen/

Siblings have the right to grow up together

As of June 19, 2021, the (old) Civil Code has a new chapter ‘brothers and sisters’. The chapter was placed under Book I ‘Persons’, Title IX ‘Parental authority and foster care’ and contains 3 new legal provisions.

The new chapter applies to measures taken within the context of parental authority, foster care and the placement of a minor non-emancipated child in the context of youth assistance and youth protection.

The new legislative provisions give minor siblings two explicit rights:

the right not to be separated from each other and thus to grow up together in the same family. This may seem obvious, but in practice it often turns out differently after a separation of the parents or placement in youth care;

the right to have personal contact with each other at any age. This right already existed for grandparents and any other person who demonstrates a special affective bond with a child.

These rights derive from Article 8 ECHR (right to respect for private, family and family life).

Exceptions to these rights may only be made when it is in the best interest of the child itself, which is assessed for each individual child. If it is in the best interest of the child to be separated from his/her siblings, maximum efforts should still be made to maintain personal contact with the siblings, unless this is also against the best interest of the child. In this way, if necessary, a tailor-made arrangement can be worked out in the interest of all siblings. For example, the law explicitly provides an exception when a child is placed in a juvenile facility as a result of committing a juvenile offense. Logically, the offender’s siblings will then not also be placed in a facility.

The legal provisions do not only apply to siblings in the traditional sense of the word, but also to children who are raised together in the same family and who have developed a special affective bond with each other as a result of living together. In this way, newly composed families are also taken into account. At first sight, there seems to be a broad scope of application, but it should be noted that there is no definition of ‘brother’ and ‘sister’ in the Belgian legislation. The scope of the new legislation can therefore be disputed. In legal literature, a definition of brother and sister is proposed: someone with whom one has at least one common parent by descent or full adoption.

In order for the new legislative provisions to fully achieve their goal of allowing siblings to grow up together, a number of other legislative provisions were also amended:

374 §2 paragraph 4 (old) Civil Code was amended in the sense that the Family Court, when working out a living arrangement for the children after separation of the parents, must now strive for the same living arrangement for all siblings. If this is not possible, the Family Court must clarify how personal contact between the siblings is to take place;
393, paragraph 2 (old) Civil Code has been amended in the sense that when placing children under guardianship, the Justice of Peace should preferably appoint the same guardian for all siblings, unless this is not in the best interest of the child. If this is not possible, the Justice of Peace must clarify how personal contact between the siblings is to take place.

The new legislation has an important symbolic value. After all, 6 bills have already been submitted in the past and only now there is finally a general, legal recognition of the special bond between siblings. However, the new legislation does not provide in any sanctions. The question therefore arises as to what happens when siblings are nevertheless separated from each other and cannot have contact with each other. The earlier bills were intended to allow minors to be able to enforce these newly acquired rights themselves in court. This however would make a minor gain “litigious capacity” which was met with much opposition and ultimately not included in the final amendment of the law.

Therefore, the actors in the field will have to apply the legislation effectively so that the new provisions do not remain hollow phrases.

Attention! Asbestos certificate obligatory from 23 November 2022

Attention! Asbestos certificate obligatory from 23 November 2022

As of November 23 this year, an owner in Flanders must provide an asbestos certificate to the buyer when selling his home if the home dates from before 2001.

In principle, this obligation applies to any transfer among living persons relating to a property right – such as any sale or gift – or any establishment or transfer of a right of usufruct, emphyteusis, superficies or a right of use in rem.

Moreover, a landlord will be required to transmit a copy of the asbestos certificate to his (potential) tenants, if the certificate is available.

By 2032, however, every owner of a building or residence older than 2001 will be required to have an asbestos attestation.

The asbestos certificate lists all asbestos-containing materials in the building and includes:

a description of the building and which materials/building components contain asbestos
what the condition of the asbestos is
how it can be safely removed or managed[1]

To obtain the attestation, the owner will need to hire a certified asbestos expert to conduct an asbestos inventory of the building. The attestation will probably cost between 395 and 850 euros, depending on the size of the building.

In the case of a sale, the seller transfers the attestation to the buyer before signing the compromise.

Although removing asbestos is always a healthy choice, there are no specific obligations attached to the substantive outcome of the attestation. The asbestos-containing materials do not have to be removed.

The purpose of the asbestos attestation is primarily to sensitize the buyer or user. It also enables the mapping of Flemish properties with asbestos presence.

If you have any question regarding the asbestos certificate, do not hesitate to contact us!

[1] J. CEENAEME, “[Kopen en verkopen] Vastgoed en bijkomende verplichtingen” in J., DAMBRE, M., VANDROMME, T., CEENAEME, J., DEFOOR, W., VANMUYSEN, J., CLABOTS, A., VANBIERVLIET, W., VANOPPEN, K., Vastgoedzakboekje, Mechelen, Wolters Kluwer Belgium, 2022, 158-160.

The smoking ban: an overview

On May 15, 2022, the law amending the law of April 27, 2018 on the police of the railroads for completely smoke-free platforms was introduced. This law makes train stations, including the platforms, smoke-free zones as of January 2023.

In response to this change of law, we hereby provide you with an overview of the places where smoking is prohibited.

Closed areas that are accessible to the public

First of all, it is prohibited to smoke in closed areas accessible to the public. The law lists non-exhaustively the following places:

Government places;
Stations;[1]
Airports;
Commercial establishments;
Places where services are provided to the public, including food and beverages;
Hospitals and elderly homes;
Schools;
Theatres;
Places where sports are practiced;
…

A clear no-smoking sign must be displayed at the entrance and within each area.

The operator of a closed publicly accessible area does have the option of installing a smoking room. This must meet a number of conditions:

The smoking room may not be a transit area;
The smoking room must be fitted out in such a way that the discomfort caused by the smoke is limited as much as possible for non-smokers;
The smoking room must be clearly marked as such so that it can be recognized and located;
The surface of the smoking room must be less than 1/4 of the total surface area;
The smoking room must be equipped with an extraction or ventilation system.

In case of non-compliance with the smoking ban, both the operator of the public place and the smoker himself can be sanctioned. Both can be punished with a fine of 26,00 Euro to 1,000.00 Euro and/or with imprisonment of 8 days to 3 months. The operator may also incur a mandatory closure of up to 6 months.

The workplace

Every employee has the right to have smoke-free workplaces and social facilities (bathroom, dining place etc.). The employer must take the necessary measures and ensure that these are complied with, both by the employees as by third parties. Failure to do so exposes him to criminal prosecution (under the Social Penal Code). The officials of the Social Inspectorate are responsible for monitoring these obligations of the employer.

The employer also has the possibility, after prior advice from the Committee for Prevention and Protection at Work, to install a smoking room in the workplace.

Vehicles

In addition, it is prohibited to smoke in a vehicle as soon as a minor (<18 years) is present in the car. The prohibition also applies when the windows or the roof of the car are open. Smoking is only allowed in a convertible where the roof is completely tucked in.

Smoking is also permanently prohibited in all vehicles used for public transport, even when they are temporarily not in service.

The rules surrounding the smoking ban are included in the law of 22 December 2009, which came into force on 1 January 2010. This means the famous smoking ban has been in place for more than 10 years now!

[1] Including the platforms as from January 2023.