7 September 2023

Brussels Markets Court rejects IAB Europe’s immediate request to suspend enforcement. The Court will rule on the merits after the CJEU rules.

Today the Brussels Markets Court has rejected IAB Europe’s immediate request that enforcement of the Belgian Data Protection Authority’s decision of 2 February 2022 against its “Transparency & Consent Framework” (TCF) consent system be suspended. The TCF system plagues Europeans on nearly all websites and many apps with popup consent spam.

The Markets Court also admitted the complainants’ appeal against the Belgian Data Protection Authority’s acceptance of IAB Europe’s proposed remedies to the TCF. We argue that the Belgian Data Protection Authority is obliged to share IAB Europe’s proposals with us and allow us to make detailed submissions about whether IAB Europe’s proposal is sufficient.

In parallel, the Markets Court has also admitted IAB Europe’s appeal against the Belgian Data Protection Authority’s decision to require it to implement remedies to the TCF. IAB Europe argues that the Belgian Data Protection Authority should wait for answers from the European Court of Justice to the preliminary questions that the Markets Court referred to it at our request in its judgement of 7 September 2022.

The Markets Court will consider the merits both of our and IAB Europe’s appeals after the European Court of Justice has delivered its judgement. The hearing before the European Court of Justice will take place on 21 September 2023. A judgement from the European Court may follow soon, as no opinion of the Advocate General will be issued.

Background 

This case arises from proceedings initiated by complainants at the Belgian Data Protection Authority, coordinated by the Irish Council for Civil Liberties. The group of complainants includes: Dr Johnny Ryan of the Irish Council for Civil Liberties, Katarzyna Szymielewicz of the Panoptykon Foundation (Poland), Stichting Bits of Freedom (the Netherlands), Ligue des Droits Humains (Belgium), Dr Jef Ausloos, and Dr Pierre Dewitte. The Belgian procedure follows complaints about the insecurity of the online advertising “Real-Time Bidding” (RTB) system that Dr Ryan initiated in 2018.

On 2 February 2022 28 EU data protection authorities, led by the Belgian Data Protection Authority as the leading supervisory authority in the GDPR’s one-stop-mechanism, ruled that IAB Europe’s TCF infringes the GDPR in multiple ways. Google, Microsoft, Amazon, Oracle, TikTok, etc. rely on the TCF as a form of GDPR compliance theatre.

However, in January 2023 the Belgian Data Protection Authority accepted a remedy proposed by IAB Europe without allowing the complainants to examine or make submissions about the proposed remedy. The complainants made an appeal to the Markets Court against this in February 2023. That appeal has been merged into a parallel appeal taken by IAB Europe against the Belgian Data Protection Authority’s decision to require IAB Europe to implement the remedy before related questions are answered by Europe’s highest court, the Court of Justice of the European Union. Those questions, which we proposed, were referred by the Markets Court to Court of Justice of the European Union in September 2022.

We wish to thank our lawyers, Frederic Debusseré and Ruben Roex of Timelex.

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