It has become common policy for municipalities to “outsource” the collection of parking fines on their territory to private companies. These are either acting as concession holders or as contractual service providers.
In the case of concession holders, the private partner is granted the right to operate the public parking facilities of the municipality against a fee which the private partner is entitled to collect itself from the parking users. Contractual service providers will only assist the municipalities with their parking management. Such assistance will usually not include the collection of parking fines.
Whether concession holders can lawfully identify the vehicle-owners who owe parking fees to them has always been subject to debate. Identification of the vehicle-owners can be done by matching the number plates to the names and addresses that can be found in the Register of Vehicles. This Register is a computerised database operated by the federal Ministry of Transport. It contains information (i.e. personal data) on the owners of number plates.
The Privacy Commission qualifies number plates as being personal data. As a consequence, any processing of number plates needs to comply with the provisions of the Data Protection Act of 8 December 1992 (“the DPA”). This inter alia means that number plates can only be processed for specified, explicit and legitimate purposes and cannot be further processed in a way incompatible with those purposes.
Article 6 §2 of the Royal Decree of 20 July 2001 concerning the registration of vehicles provides a list of purposes for which the information of the Register of Vehicles may be used. One of these purposes is “the identification of the natural or legal persons owing taxes or charges concerning the purchase, registration, use or termination of use of a vehicle”.
Already in August 2003, the Privacy Commission issued a specific opinion with regard to the access to the Register of Vehicles for the purpose of identifying the natural and legal persons that owe parking taxes or charges. In this opinion, the Privacy Commission held that any access to the Register of Vehicles by a concession holder was to be considered unlawful as the parking fee to be paid by parking users to such concession holder is of a contractual nature. In other words, such parking fee is not a tax or charge as referred to in Article 6 §2 of the Royal Decree of 20 July 2001.
The issue was recently brought to the attention again following press articles about a judgment (of 31 December 2007) of the Justice of Peace in Ostend that had declared the collection of a parking fine by a private company (acting as concession holder) unlawful.
From the judgment, it appears that the infringer was identified on the basis of a picture of his car number plate taken by an agent of the concession holder. The picture was passed on to the municipal police for identification of the vehicle-owner. The personal data of the vehicle-owner were then circulated to the concession holder for the purpose of collecting the parking fine. This procedure was laid down in the concession agreement between the municipality and the concession holder.
The Justice of Peace in Ostend held that, at this point, the concession agreement was infringing Article 8 §3bis of the Private Security Act of 10 April 1990. This provision prohibits the identification of persons by private security agents when these are controlling goods on the public domain on behalf of a public authority or of a concession holder for such authority.The judgment explicitly refers to the Privacy Commission’s aforementioned opinion. The concession holder will most probably appeal this decision.
This is, however, not the first judgment of its kind. In June 2004, for instance, the Justice of Peace in Zelzate decided in a totally different way when it was called to hear a case with regard to a parking fine imposed by a private concession holder. Here also, it appeared from the concession agreement between the municipality and the concession holder that it was not the concession holder who was collecting the personal data of the vehicle-owners, but the municipality itself. The municipality retrieved the information from the Register of Vehicles and then passed it on to the concession holder (who was thus only acting as a “data processor” to the municipality). The Justice of Peace in Zelzate considered this mechanism to be lawful. The judge also explicitly referred to the aforementioned opinion of the Privacy Commission and to the DPA.
The recent judgment of the Justice of Peace in Ostend may now revive the public debate over the identification of vehicle-owners for the collection of parking fines. It may also lead to amendments to the legal provisions governing the access to the Register of Vehicles. Although such amendments may bring more clarity, it seems unlikely that the Privacy Commission would allow any expansion of the access rights to the Register of Vehicles without the implementation of strict safeguards in relation to the privacy of the vehicle-owners.
The recent judgment will in any case bring new ammunition to all citizens wanting to contest their parking fines imposed by concession holders. This may rather quickly lead to case law at a higher level (including the Supreme Court).