Summary

In June 2022, the text of the Data Governance Act (DGA) was officially approved, and it became binding on 24 September 2023. The DGA imposes certain obligations on member states for the further implementation of the regulation. In this context, the Belgian Parliament approved the final version of the law implementing the DGA (DOS 55K3934) on 8 May 2024. On 7 June 2024, the law was published in the Belgian Official Gazette.

The law amends and adds provisions to the Belgian Code of Economic Law (WER), specifically to Book XV (Enforcement) and Book XVII (Special Legal Procedures). It specifies the procedures for the reuse of certain protected public sector data, the registration of a data intermediation service or a data altruism organisation, and the enforcement thereof. Additionally, the law outlines the sanction mechanisms that a supervisory authority can impose when a data intermediation service or a data altruism organisation no longer meets the required conditions.

The law does not provide answers to all outstanding questions. It is crucial to know who is responsible for registering data intermediation services and data altruism organisations, as well as for supervising compliance. The law designates the FPS Economy as both the registration and supervisory body. However, this appointment came too late, and is still not very specific. At the end of May 2024, the European Commission pointed out to Belgium that it was delayed in transposing the DGA, along with seventeen other member states (see INFR(2024)2055). Articles 13, 14, 23 and 24 of the DGA require each member state to designate one or more competent authorities to perform the tasks related to the notification procedure for data intermediation services and the registration procedure for data altruism organisations, and the monitoring of compliance. The Commission had to be informed of this by 24 September 2023 – the date of the DGA's entry into force. Since Belgium did not make this notification, it was included in the Commission's call to correct this as soon as possible. If there is no adequate response, the Commission will issue a "reasoned opinion" within two months of such a call. This is part of the formal infringement procedure, a process that allows the Commission to ensure that EU law is correctly applied and enforced in all member states.

The appointment of the FPS Economy in the text is, however, not concrete enough. The Explanatory Memorandum to the law states that the General Directorate of Economic Inspection (Algemene Directie Economische Inspectie) is the entity within the FPS Economy responsible for supervising companies regarding violations of the Code of Economic Law (Book XV). The supervisory competence will indeed likely fall to this entity. However, the Memorandum distinguishes between the supervisory authority and the task of registering companies, which may fall under the responsibility of other general directorates of the FPS Economy. Since the law does not specify this, it remains unclear which specific entity will perform this task, creating uncertainty about which entit(y)(ies) will fulfill this/these role(s). Nonetheless, there is now a new, clear deadline for the appointment. After the Commission's first call, Belgium has two months before the Commission takes further action.

The absence of a registration and supervisory body also affects actors in Belgium who wish to register as a data intermediation service or a data altruism organization. Without a designated authority, it remains unclear for Belgian companies whether they can officially designate themselves as such. This causes uncertainty, particularly regarding their external profiling and internal organization. Additionally, one might wonder whether the presence or absence of such a registration body, as is already the case in ten other member states (Bulgaria, Denmark, Finland, Hungary, Ireland, Lithuania, the Netherlands, Spain, Czech Republic, and Croatia), could lead to a certain degree of forum shopping.

Finally, the possible sanctions that the future supervisory body for data intermediation services and data altruism organizations can impose may range from a warning to an administrative fine, possibly combined with a penalty, or the publication of the organization's identity on the FPS Economy's website.

Lastly, the Explanatory Memorandum refers to the federal service integrator of the FPS BOSA (FPS Policy and Support) as the central information point for questions regarding requests for reuse (in accordance with Article 8 of the DGA) and as the competent body at the federal level to assist public bodies in handling these requests (in accordance with Article 7(1) of the DGA). This was done through the Law of 13 May 2024 amending the Law of 15 August 2012 establishing and organizing a federal service integrator.