Can you appeal a procedural interim decision by the Data Protection Authority?

When the Litigation Chamber of the Data Protection Authority (DPA) is conducting an investigation, interim decisions are sometimes made, such as about splitting a case. Can a concerned company go immediately to the Market Court to challenge such a procedural decision? The short answer is no. The Market Court confirms in a ruling of Nov. 26, 2025 that appeals against mere preparatory acts are inadmissible unless the act itself permanently alters the party's legal position.

The facts and procedural context

The case originated in an individual's complaint against several companies for alleged violations of data protection laws in direct marketing and database sales.

During the proceedings, the DPA Litigation Chamber decided by email on April 24, 2025 to split the case into two separate cases. The reason for this was efficiency and the fact that the infringements were different in nature (marketing vs. selling data).

On the same day, the Litigation Chamber issued a substantive decision (Decision 76/2025) with respect to certain parties, but not with respect to the appealing party in this case. However, the appellant party felt aggrieved by the procedural decision to split the case and appealed to the Market Court, both the substantive decision (to which it was not a party) and the decision to split.

Market Court decision

The Market Court, a specialized section of the Brussels Court of Appeal, declared the appeal inadmissible.

The Court distinguished between two acts that occurred on the same day:

• Decision 76/2025: Since the applicant was not the addressee of this sanction decision, it had no interest in its annulment.
• The decision to split (by email): The Court held that this was a preparatory act. Such an act by itself does not change the applicant's legal situation and is therefore not amenable to an immediate appeal.

Legal analysis and interpretation

This ruling is important in terms of the admissibility of appeals against administrative acts. For attorneys and in-house counsel, it is crucial to understand the distinction between an ‘actionable act’ and a ‘preparatory act.

The requirement of a present interest and a ‘grievance’

In order to file an appeal, it must be possible to formulate a grievance against the contested decision. This means that the decision itself affects the legal position of those involved. In principle, a preparatory act, such as splitting a case or setting a hearing date, does not do this. Such an act is only a step toward the final decision.

The Market Court explicitly states:

“A preparatory act that ”in principle causes no prejudice“ cannot be challenged unless it has ”definite effects,“ that is, it partially determines the final remedy.”

The impact of changed composition of the chamber

The applicant argued that the division did cause a prejudice because it put her in a new proceeding. Due to a change in the law (Law of December 25, 2023) and the DPA's new internal regulations, this would mean her case would be heard by the president sitting as a single-member judge, rather than by a three-member board.

The Court rejected this argument. The change in the composition of the chamber (from collegial to single-member) resulted from the law and the rules, not from the decision to split the case. Moreover, the Court held that one cannot prejudge whether single-member consideration would result in a more severe sanction; this is speculation.

The possible irregularities of a preparatory act may still be raised, but only at the time of an appeal against the final decision that causes final prejudice.

What this specifically means

This ruling has strategic implications for businesses that are the subject of a DPA investigation:

• For the defendant party (the company): Do not prematurely respond with heavy legal remedies against DPA procedural emails or interlocutory decisions (such as a split, joinder or postponement). An appeal to the Market Court is likely to be dismissed as premature, resulting in unnecessary costs (court fees).
• Strategic patience: If you believe that a procedural step violates your rights of defense, formally note this objection in your briefs to the Litigation Chamber. You will then save this argument for any appeal on the merits of the final sanction decision.
• Cost risk: The filing of an inadmissible appeal results in an order for costs. In this case, the applicant had to pay the litigation fee of €1,883.72 to the DPA.

FAQ: Frequently asked questions

Can I appeal an email from the DPA?
Generally, no, unless this e-mail contains a final decision that changes your legal position (such as a classification without effect or a penalty). Purely procedural communications by e-mail are preparatory acts and not appealable.

What is the Market Court?
The Market Court is a specialized division of the Brussels Court of Appeal. This court has exclusive jurisdiction over appeals against decisions of certain regulators, including the Data Protection Authority (DPA) and the Belgian Competition Authority (BCA).

When does an interim decision become appellate?
An interim decision is only appellable if it has “final effects” that can no longer be rectified in the final decision. This is very exceptional. In most cases, you must wait for the final decision to raise procedural errors.

Conclusion

The Market Court draws a clear line: litigating against the DPA is done against the final decision, not against every procedural intermediate step. Splitting a case by the Litigation Chamber is considered an organizational measure that does not in itself warrant an appeal. Companies would do well to save their procedural ammunition for when it really matters: the final decision on the merits.