On 26 November 2021, a Royal Decree was adopted amending the Royal Decree of July 11, 2003, laying down the functioning and procedure of the Commissioner General for Refugees and Stateless Persons (CGRS). The applicants, a group of NGOs and civil society organisations, requested the suspension of Articles 1 to 6 of this decree because it introduced a new type of processing of personal data, by means of videoconferencing, without clearly specifying how this processing is to be organised or regulated.

On 3 October 2022, the Council of State suspended the application of Article 4(2) of this Decree, which provided that, if grounds of confidentiality preclude it, the guardian appointed in accordance with the Guardianship Act cannot attend the hearing when it takes place remotely. However, it rejected the request for suspension of the rest of the Articles.

On 8 November 2022, the applicants requested the annulment of Articles 1 to 6 of the Royal Decree of 26 November 2021and made two pleas before the Council of State. 

First, they criticised the State for having adopted the contested decree without having previously adopted a clear and precise legal framework for the processing of personal data for determining, inter alia, the identity of the controller, the circumstances in which the administration may process personal data, and the essential elements of that processing. In support of their appeal, the applicants claimed a violation of Article 6 (3) of the GDPR, Article 22 of the Constitution and Article 8 of the ECHR.

Second, the applicants claimed that the contested decree infringed the right of defence and the right to be heard because it provided for the possibility for the CGRS to penalise an applicant's lawyer by depriving him, for reasons of confidentiality, of the possibility of attending a remote hearing. It also provided for the possibility that the guardian of an unaccompanied foreign minor, for the same reasons, may not be physically at his side during his hearing. In support of their appeal, they cited Articles 4 and 18 of the EU Charter, and Articles 22 and 23 (3) of Directive 2013/32.

Regarding the first plea, the Ministry of the Interior argued that the Law of 15 December 1980 gave the King the legal authority required to determine the conditions of the personal interview, including the possibility of a remote interview. As to the second plea, the Ministry held that no penalties were imposed on lawyers or guardians of minors, and that the provisions were merely a guarantee of confidentiality of the interview. It also argued that prior to the entry into force of the contested order, the interviewing officer could already prohibit the lawyer from assisting his client at the hearing for reasons of ensuring confidentiality. Hence, even if the contested order were annulled, the interviewing officer would retain the power to prohibit the lawyer from attending the hearing.

The Council of State partially suspended the decree and referred a question to the Constitutional Court, asking whether the delegation of power to the King was precise enough to respect the Belgian Constitution, GDPR, and ECHR standards. It also found that the decree unlawfully allowed the exclusion of lawyers and guardians from hearings for confidentiality reasons, infringing the applicant's rights to legal assistance and to be heard.

First, the State Council analysed whether the provisions of the contested decree were “sufficiently clear and complete” to respect ECHR and GDPR standards. In that regard, the Council of State recalled that, according to the Constitutional Court, any interference with the right to respect for private life and personal data must be clearly and precisely defined by the legislature, outlining essential elements such as data categories, purposes, and storage limits.

For that reason, the Council of State decided to present a question to the Constitutional Court to determine whether the authorisation given to the King by the Law of 15 December 1980, which allows personal interviews to take place by videoconference and thereby permits the transmission of personal data, violate Article 22 of the Constitution, either alone or in combination with Article 6(3) of the GDPR and Article 8 of the ECHR.

Second, the Council of State addressed whether there had been an infringement of the right to defence and the right to be heard by allowing the CGRS to exclude the presence of the lawyer for reasons of confidentiality. In that regard, it found that the contested decree altered the regulatory framework by introducing the possibility for the CGRS to prohibit lawyers from attending the hearing remotely for reasons of confidentiality, as the previous provisions had allowed this only for the confidential counsellor and not for the lawyer. Moreover, it argued that Article 23 of the Directive 2013/32/EU did not allow for exceptions to the applicant's right to be accompanied by a legal adviser for reasons of confidentiality. Consequently, it considered that the contested decree had incorrectly transposed Article 23 of the Directive 2013/32/EU and that the right to be heard included the right to be assisted by a lawyer within the meaning of that provision. 

In addition, the council held that, if the lawyer's online presence were to jeopardise the confidentiality of the personal interview, it would be necessary for the administration to find a solution which did not infringe the right of the applicant to be assisted by a lawyer, if necessary, by suspending the hearing. It ruled that under no circumstances the administration can prohibit a lawyer from assisting his client.

Finally, it argued that this was the same case for the guardians of unaccompanied minors and that, according to Article 9(2) of Chapter VI ‘Guardianship of unaccompanied foreign minors' of Programme Law (I) of 24 December 2002 the guardian assisting the minor must be present at each of his or her hearings.