An increase in the number of cars being driven coupled with limited car parking spaces has put pressure on available parking spaces. Typically this has been dealt with by introducing time limits and/or fees to public parking spaces, as well as by building private (underground) parking facilities. However, people do not always pay the required fee. This has prompted the Belgian Data Protection Commission to produce an interesting opinion as well as interesting case law on the lawful identification of people who owe fees for parking vehicles.
Public versus private parking facilities
Municipal authorities have the power to organise paid parking on their territory pursuant to a law passed on 22 February 1965. This can be done by passing and publicising a municipal council decision. More recently, some municipal authorities have entered into agreements with private partners to manage public parking facilities. This is done by awarding public concessions to the private partner. In such a scenario the private partner agrees to provide the public parking services at his own cost and risk in return for being able to charge a fee from those who want to park there. In both cases the parking expenses are legally qualified as charges.
In addition, private parking facilities may be provided by companies. The user of the private parking facility will enter into an agreement with the company, which provides a (private) service. The payment given, i.e. the parking fee, is the contractually agreed price.
The identification of people owing charges or payment for parking vehicles
Problems may arise when a person using the parking facilities does not pay the charge or parking fee. This happens when a car is parked on the public road in a paid zone, but without a parking ticket. It could also happen when a car leaves a parking facility without paying. The user needs to be identified to recover payment but generally to do this it is necessary to link the number plate of the car to its owner. This can be done through the “Register of Vehicles”, a national database, linking vehicle number plates to owner personal data.
Article 6 of the Royal Decree of 20 July 2001 concerning the registration of vehicles provides a detailed list of purposes for which the information in the “Register of Vehicles” may be used. One of the purposes is “the identification of the physical or legal persons owing taxes or charges concerning the purchase, registration, use or termination of use of a vehicle”.
The position of the Data Protection Commission
In earlier opinions, the Data Protection Commission had already qualified number plates as being personal data. The processing of number plates, i.e. the matching of number plates to names and addresses by means of the “Register of Vehicles”, therefore falls under the Law of 8 December 1992 on privacy protection in relation to the processing of personal data (“the Law”)
The Data Protection Commission distinguished several circumstances in its opinion:
(a) Processing performed by municipal authorities
Municipal authorities have the authority to levy charges for parking. Therefore, they are permitted to access to the Register of vehicles in order to identify people who have not paid their charges.
(b) Processing performed by a concession holder
If the activity of (municipal) paid parking services is awarded by means of a concession to a private partner, the Data Protection Commission considers the access to the Register of Vehicles by the concession holder, unlawful. The Data Protection Commission considers that the payment for the parking services to the concession holder is of a contractual nature and thus not a charge.
(c) Processing performed by a private company providing services to the municipality on a contractual basis
Municipal authorities sometimes contract with a private service provider that assists them with the management of municipal parking facilities. The Data Protection Commission considers that these private partners may not recover charges, but that the municipal authorities must do so instead.
(d) Processing performed by a private company for private parking facilities
The Data Protection Commission considers the access to the Register of Vehicles by a private company unlawful, as payment for contractual services rendered by the private company cannot be qualified as a charge.
The judgment of the Justice of Peace of Zelzate
The judgment of the Justice of Peace of Zelzate of 3 June 2004 concerns the recovery of parking charges by a concession holder. In its reasoning, the Justice of Peace of Zelzate explicitly refers to the opinion of the Data Protection Commission on the matter.
The concession agreement between the concession holder and the municipality, however, provided a specific mechanism for access to the Register of Vehicles: the Register of Vehicles was not directly accessed by the concession holder, but rather by the municipal authorities, which then forwarded the necessary information, i.e. personal data, to the concession holder.
The Justice of Peace held this mechanism to be lawful, because it fell within the scope of the task of the municipal authorities and the concession agreement. In other words, the Justice of Peace of Zelzate considered the concession agreement to be a data processing agreement under Article 16 of the Law. Under the data processing agreement, the municipal authorities could communicate the necessary information to the concession holder.
 Opinion nr. 37/2003 of 28 August 2003 concerning the access to the Register of Vehicles of the Directorate-General Mobility and Traffic Safety of the Ministry of Transportation for the purpose of identifying physical or legal persons owing taxes or charges for parking vehicles.