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GDPR Guide to National Implementation: Belgium

A practical guide to national GDPR compliance requirements across the EEA

Belgium

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In this chapter:

Q1/ Applicable legislation

Q2/ Personal data of deceased persons

Q3/ Legal bases for processing

Q4/ Consent of children

Q5/ Processing of sensitive personal data

Q6/ Data relating to criminal offences or convictions

Q7/ Exemptions

Q8/ Restrictions on data subjects’ rights

Q9/ Joint controllership

Q10/ Processor

Q11/ Data protection Impact Assessments

Q12/ Prior authorisation and public interest

Q13/ DPOs

Q14/ International data transfers

Q15/ DPAs

Q16/ Claims by not-for-profit bodies

Q17/ Administrative fines, penalties and sanctions

Q18/ Freedom of expression and information

Q19/ National identification numbers

Q20/ Processing in the context of employment

Q21/ Other material derogations

Q22/ Current legal challenges

Q23/ Enforcement

Q24/ Regulatory Guidance

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Q1/ Applicable legislation

(a) Have the requirements of the GDPR been addressed by introducing a new law, or by updating existing legislation?

New legislation has been passed.

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(b) Relevant legislation includes:

  • Law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data (the “Law of 30 July 2018”)
    • Date in force: 5 September 2018
    • Links: French version: see here / Dutch version: see here
  • Law of 5 September 2018 establishing the information security committee and modifying various laws regarding the implementation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC
    • Date in force: 10 September 2018
    • Links: French version: see here / Dutch version: see here
  • Law of 3 December 2017 establishing the DPA
    • Date in force: 25 May 2018
    • Links: French version: see here / Dutch version: see here
  • Law of 21 March 2018 amending the existing Act of 21 March 2007 on camera surveillance
    • Date in force: 25 May 2018
    • Links: French version: see here / Dutch version: see here

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(c) What is the status of national pre-GDPR data protection law?

The relevant pre-GDPR legislation has been repealed in full.

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Q2/ Personal data of deceased persons

Does national law make specific rules regarding the processing of personal data of deceased persons?

There are no specific rules governing this issue.

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Q3/ Legal bases for processing

(a) Does national law make specific rules regarding the processing of personal data in compliance with a legal obligation?

If the federal police transfer personal data to any other public authority or private organisation on the basis of Art. 6(1)(c) GDPR, this transfer must be formalised by an agreement between the federal police and the controller who receives the data.

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(b) Does national law make specific rules regarding the processing of personal data for the performance of tasks carried out in the public interest?

There are no specific rules governing this issue.

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(c) Does national law make specific rules regarding the processing of personal data in the exercise of official authority vested in the controller?

There are no specific rules governing this issue.

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(d) Does national law contain criteria in addition to those listed in the GDPR, to determine whether processing for a new purpose is compatible with the purpose for which the personal data were initially collected?

There are no specific rules governing this issue.

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Q4/ Consent of children

At what age can a child give their consent to processing in relation to ISS?

13 years of age.

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Q5/ Processing of sensitive personal data

(a) Are there any sensitive personal data which cannot be processed on the basis of a data subject’s consent?

All categories of sensitive personal data can be processed if the data subject’s valid consent has been obtained.

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b) Does national law contain any specific requirements regarding the processing of sensitive personal data in respect of the following:

(i) Employment, social security and/or social protection law

There are no specific rules on processing this category of data.

(ii) Substantial public interest

According to the Law of 30 July 2018, the following processing activities should be considered as necessary for reasons of substantial public interest:

  • processing by entities whose corporate purpose is the defence and the promotion of human rights and fundamental freedoms, on the condition that the data processing corresponds to that purpose and has been authorised by the King;
  • processing by the foundation of public utility “Child Focus” in order to receive and send the data to the public authority and to observe the data concerning persons who are suspected to have committed a criminal offence of kidnapping or sexual exploitation, under the condition that the purpose of the processing is the evaluation, support and treatment of those persons and that the processing has been authorised by the King; and
  • the processing of data concerning sex life, by entities whose corporate purpose is the evaluation, the support and treatment of persons whose sexual behaviour is considered a criminal offence and who are subsidised by the government.

The processing for reasons of substantial public interest is subject to the following additional conditions:

  • the controller (and, where applicable, the processor) must maintain a list of the categories of persons having access to the personal data, including a description of their role in connection with the processing of the data, and that list must be disclosed on request to the relevant DPA; and
  • the controller (and, where applicable, the processor) must make sure that the people designated are bound by a legal, statutory or contractual obligation of confidentiality with respect to the personal data that they process.

(iii) Preventative or occupational medicine; employee working capacity, medical diagnosis, provision of health or social care, or management of health or social care systems or services

There are no specific rules on processing this category of data.

(iv) Public interest in the area of public health

There are no specific rules on processing this category of data.

(v) Archiving purposes, scientific or historical research purposes or statistical purposes

The processing of this category of data is subject to several safeguards stipulated in the Law of 30 July 2018 in order to protect the rights and freedoms of the data subject (e.g., the obligation of anonymisation or pseudonymisation when processing this category of data, and the stipulation that only in limited circumstances can non-pseudonymised data be diffused and reproduced).

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(c) Has national law introduced any further conditions and/ or limitations with regard to the processing of genetic data, biometric data, or health data?

Processing of genetic data, biometric data or health data is subject to the following additional requirements:

  • the controller (and, where applicable, the processor) must maintain a list of the categories of persons having access to the personal data, including a description of their role in connection with the processing of the data, and that list must be disclosed on request to the concerned DPA; and
  • the controller (and, where applicable, the processor) must make sure that the people designated are bound by a legal, statutory or contractual obligation of confidentiality with respect to the personal data that they process.

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Q6/ Data relating to criminal offences or convictions

Under what conditions does national law permit the processing of personal data relating to criminal convictions?

The processing of personal data relating to criminal convictions and offences is authorised under the following circumstances and by the following persons: 

  • processing by a natural person, or a public or private legal person, as required for the management of their own disputes and litigation;
  • processing by lawyers, or other legal counsel, as required for the defence of their clients;
  • processing by other persons for the performance of a task carried out in the public interest, by virtue of national law, decree, ordinance or EU law;
  • processing by any person, to the extent required for the scientific or historical purposes, or statistical purposes, or for archiving purposes;
  • processing by any person, if the data subject explicitly authorised in writing the processing of his or her data for one or several specific purposes, and provided that the processing is limited to such purpose(s); and
  • processing by any person, if the data subject made the data manifestly public, at his or her own initiative, for one or several specific purposes, and provided that the processing is limited to such purposes.

The controller and the processor of this category of data are subject to the following additional obligations:

  • the controller (and, where applicable, the processor) must maintain a list of the categories of persons having access to the personal data, including a description of their role in connection with the processing of the data, and that list must be disclosed on request to the concerned DPA; and
  • the controller (and, where applicable, the processor) must make sure that the people designated are bound by a legal, statutory or contractual obligation of confidentiality with respect to the personal data that they process.

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Q7/ Exemptions

(a) Does national law specify exemptions to a data subject’s right to erasure?

There are no specific exemptions to the right to erasure.

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(b) Does national law specify exemptions to a data subject’s right to be provided information under Art. 14 GDPR where the personal data has not been obtained from the data subject?

There are no specific exemptions to the right to be provided information.

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(c) Does national law specify exemptions to a data subject’s right to not be subject to a decision based solely on automated processing, including profiling?

There are no specific exemptions to the right to not be subject to automated individual decision-making.

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Q8/ Restrictions on data subjects’ rights

Aside from the exemptions noted in Q7, does national law contain any other restrictions on the rights of data subjects under Chapter III GDPR?

Where the relevant processing relates to information originating—directly or indirectly—from certain Belgian authorities (e.g., intelligence agencies, police forces, the customs and excise administration, etc.), the data subject’s rights under Chapter III of the GDPR and the principle of transparency are restricted. In addition, exceptions to the right to be informed and the right of access apply to controllers who communicate personal data to such authorities.

Where personal data are processed as part of a judicial investigation or a criminal procedure, the data subject’s rights are subject to the Judicial Code, the Code of Criminal Procedure and the special laws relating to criminal procedure as well as the implementation decrees.

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Q9/ Joint controllership

Does national law provide rules or guidance on the apportionment of responsibility between joint controllers?

There are no additional rules on apportionment of liability between joint controllers.

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Q10/ Processor

In addition to the contract between controller and processor, are there any pieces of legislation which govern processing by a processor?

There are no additional pieces of legislation.

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Q11/ Impact Assessments

Are there any circumstances in which national law requires an Impact Assessment to be carried out, where the GDPR would not otherwise require such an assessment?

In the event of processing by a federal authority, a specific data protection Impact Assessment must be conducted prior to the start of the processing activity, even if a general data protection Impact Assessment has already been conducted.

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Q12/ Prior authorisation and public interest

Are there any circumstances in which national law requires controllers to consult with, or obtain prior authorisation from, the DPA in relation to processing for the performance of a task carried out by the controller in the public interest (including processing in relation to social protection and public health)?

Prior authorisation from the DPA is only required in accordance with the provisions of the GDPR.

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Q13/ DPOs

(a) Does national law require controllers to appoint a DPO in circumstances other than those in Art. 37(1) GDPR?

DPOs are mandatory in the following circumstances (in addition to those specified in the GDPR):

  • in the event that a private body processes personal data on behalf of a federal public authority, or receives personal data from a federal public authority, if the processing of such personal data is likely to result in a high risk to the rights and freedoms of natural persons; and
  • in the event of data processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, if the processing of personal data is likely to result in a high risk of violating the rights and freedoms.

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(b) Does national law impose secrecy and confidentiality obligations on DPOs and if so, in what circumstances do they apply?

DPOs are subject to secrecy obligations under national law and can be held criminally liable for the offence of violation of professional secrecy under Belgian law if they violate this confidentiality obligation.

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Q14/ International data transfers

(a) Does national law make specific rules about transfers of personal data from public registers?

Data transfers from public registers are not subject to specific rules.

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(b) Does national law restrict the transfer of specific categories of personal data to third countries?

Data transfers are not subject to restrictions beyond those set out in the GDPR.

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Q15/ DPAs

(a) Details of the DPA(s).

  • Name of DPA: Data Protection Authority (in Dutch: Gegevensbeschermingsautoriteit; in French: Autorité de protection des données)

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(b) If more than one national DPA has been established, what is the rationale behind multiple DPAs?

In Belgium, there is only one lead DPA (i.e., the “Gegevensbeschermingsautoriteit” / “Autorité de protection des données”). However, other Belgian relevant authorities exist to which tasks of data protection supervision have been delegated in specific fields.

The following specific authorities exist:

  • the supervisory body on police information in the context of data processing by federal and non-federal police forces;
  • the Standing Committee I in the context of data processing by intelligence services; and
  • Committee P, together with Standing Committee I, for data processing in the context of the coordination Unit for Threat Assessment.

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(c) How does national law ensure consistent application of the GDPR by the various DPAs in accordance with Art. 63 GDPR?

The Law of 30 July 2018 opted for a one-stop-shop mechanism in order to ensure consistency of application between the various authorities in Belgium. In the event of concurring competences between the supervisory authorities, the lead DPA will be the central contact and communication point for the processing of advice, recommendations and complaints. The various authorities each have a duty of close cooperation.

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(d) Does national law grant the relevant DPA additional powers beyond those set out in Art. 58 GDPR?

The inspection committee within the DPA enjoys the following additional investigation powers:

  • the power to identify persons;
  • the power to interview persons;
  • the power to conduct written interrogations;
  • the power to consult information systems and copy the data contained herein (this is a broader investigation measure than provided for in Art. 58(1)(e) GDPR);
  • the power to consult information electronically;
  • the power to seize or seal goods or computer systems; and
  • the power to request the identification of the subscriber or the normal user of an electronic communication service or of the electronic means of communication used. The sanctioning body of the DPA has the following additional corrective powers:
  • the power to close a case with no further action;
  • the power to dismiss the case;
  • the power to suspend judgment on the case;
  • the power to propose a settlement;
  • the power to impose penalty payments;
  • the power to transfer the case to the Brussels public prosecutor office; and
  • the power to decide to publish the decision on the website of the Belgian DPA.

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(e) What national appeals process exists to enable parties to challenge the decisions of the DPA?

Decisions of the DPA may be appealed to the Market Court (i.e., a Chamber of the Brussels Court of Appeal specialised in market cases), within 30 days of the receipt of written notice of the decision.

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(f) Have specific national rules been adopted regarding the DPA’s power to obtain information from controllers or processors that are subject to obligations of professional secrecy (or equivalent)?

The DPA can only search the offices of controllers or processors who are subject to professional secrecy with prior permission from the data subject or the investigation judge.

Moreover, controllers or processors can only communicate medical personal data to the DPA in accordance with the relevant rules on medical professional secrecy.

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Q16/ Claims by not-for-profit bodies

Does national law specify any not-for-profit bodies that are entitled to bring claims on behalf of individuals without the specific mandate of those individuals?

There are no not-for-profit bodies that are specifically mandated to bring such claims. Under Belgian law, not-for-profit bodies are only entitled to conduct proceedings on behalf of individuals if those individuals have specifically mandated them for such procedure.

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Q17/ Administrative fines, penalties and sanctions

(a) Does national law lay down rules on whether and to what extent administrative fines may be imposed on public authorities for breaches of the GDPR?

No administrative fines for breaches of the GDPR can be imposed on the government or on its servants or agents, except for legal persons under public law (in Dutch: “publiekrechtelijke rechtspersoon”; in French: “personnes morales de droit public”) that offer goods or services on the market.

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(b) Does national law impose penalties/sanctions in addition to those set out in the GDPR, for breaches of the GDPR not subject to administrative fines (e.g., criminal penalties)?

Additional sanctions apply as follows:

  • administrative sanctions can be imposed in the event of breach of Belgium’s laws implementing the GDPR (e.g., a breach of the conditions for processing sensitive personal data, etc.);
  • criminal fines are limited to the following particularly serious breaches:
    • if personal data are processed in breach of fundamental processing requirements (e.g., the lack of a valid legal basis under Art. 6 GDPR);
    • if the controller or processor (or a person acting under their authority) unlawfully communicates the processing of personal data to the data subject; and
    • breach of confidentiality by the personnel of the DPA. In addition:
  • the data subject can seek an injunction to prevent the relevant processing activities; and
  • where criminal fines apply, the courts can order publication of the judgment.

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Q18/ Freedom of expression and information

(a) What (if anything) does national law do to balance the provisions of the GDPR against the right to freedom of expression and information?

Specific derogations exist with respect to the processing of personal data for journalistic purposes and the purpose of academic, artistic or literary expression in order to balance the provisions of the GDPR with fundamental rights. In general, Belgian law seeks to balance the right to data protection against the right to freedom of expression and information.

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(b) What derogations have been introduced by national law concerning the processing of personal data for the purpose of academic, artistic or literary expression?

In respect of personal data processed for academic, artistic or literary purposes, the following derogations apply:
 

  • in the case of processing based on consent, the data subject has no right to revoke his or her consent (i.e., an exception to Arts. 7 & 8 GDPR);
  • sensitive personal data can be processed for the purpose of academic, artistic or literary expression (i.e., an exception to Arts. 9(1) & 10 GDPR);
  • a data subject who has provided additional information enabling his or her identification has no right to access, rectify, erase or restrict the processing nor does he or she have the right to data portability or to be notified regarding rectification or erasure of personal data or restriction of processing (i.e., an exception to Art. 11 GDPR);
  • a data subject has no right to be informed when his or her personal data are collected, nor has he or she the right to access, rectify data, restrict processing nor the right to data portability (i.e., an exception to Arts. 13-16, 18 & 20 GDPR);
  • the controller is not obliged to communicate rectifications, erasures or restrictions to third parties (i.e., an exception to Art. 19 GDPR);
  • the data subject has no right to object to the processing of his or her personal data for the purpose of academic, artistic or literary expression (i.e., an exception to Art. 20(1) GDPR);
  • certain obligations of the controller with respect to the DPA do not apply if the application of these obligations would hinder the publication of, or would constitute a measure of control prior to the publication of, an article (exception to Arts. 30(4), 31, 33 & 36 GDPR);
  • the provisions with respect to transfers of personal data to third countries or international organisations do not apply to the transfer of personal data for the purpose of academic, artistic or literary expression, to the extent that the right of data protection should be balanced against the right to freedom of expression and information (i.e., an exception to Arts. 44-50 GDPR); and
  • the investigative powers of the DPA do not apply to the processing of personal data for the purpose of academic, artistic or literary expression if the application would provide identification of the sources of information, or constitute a measure of control prior to the publication of an article (i.e., an exception to Art. 58 GDPR).

The same derogations apply to processing of personal data for journalistic purposes. The Law of 30 July 2018 limits the derogations for these purposes to persons abiding by the requirements of journalistic ethics, which appears to be too restrictive in light of the recent jurisprudence of the European Court of Justice (cf. Case C–345/17, 14 February 2019, Buivids v. Datu valsts inspekcijan).

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Q19/ National identification numbers

Does national law stipulate specific conditions for the processing of a national identification number, and if so, what are the conditions?

The processing of Belgian national registry numbers are regulated by the Law of 8 August 1983 concerning the organisation of a National Registry for natural persons, and must be authorised by the Minister of the Interior and this authorisation may only be granted if the processing is necessary for the performance of tasks of public interest.

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Q20/ Processing in the context of employment

(a) For what purposes can employees’ personal data in the employment context be processed under national law?

Belgian law does not provide for specific rules with respect to the processing of employee data. Nevertheless, certain specific privacy issues regulated in collective agreements negotiated between employees and employers’ associations remain applicable. Those issues are:

  • the processing of personal data pursuant to the collective agreement N°38 on the recruitment and selection of workers;
  • the processing of personal data pursuant to the collective agreement N°68 on the protection of workers’ privacy with regard to CCTV in the workplace;
  • the processing of personal data pursuant to the collective agreement N°81 on the protection of workers’ privacy with regard to the control of networked electronic communication data; and
  • the processing of personal data pursuant to the collective agreement N°100 on the implementation of a preventive policy regarding alcohol and drugs inside the company.

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(b) Does national law provide safeguards for employees’ dignity, legitimate interests, and fundamental rights?

There are no specific safeguards of this nature.

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Q21/ Other material derogations

Are there any other material derogations from, or additions to, the GDPR under national law?

There are no other material derogations.

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Q22/ Current legal challenges

Are there any current legal challenges (e.g., court cases or regulatory appeals) regarding the validity or operation of the national GDPR implementation law (e.g., claims that the law incorrectly applies the GDPR; claims that the law is incompatible with constitutional principles; etc.)?

On 6 March 2019, an action for annulment of Art. 221, s. 2 of the Law of 30 July 2018 was introduced before the Constitutional Court by the non-profit organisation for Belgian enterprises. The annulment action is currently pending and challenges the exclusion of the government, its servants or agents from the applicability of administrative fines for breaches of the GDPR (see Q17(a)).

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Q23/ Enforcement

Has the local DPA issued any material fines or taken any material enforcement action to date for breaches of the GDPR?

On 28 May 2019, the DPA issued its first administrative fine since the GDPR came into force. The case concerned a mayor who used data (namely, email addresses) obtained in the performance of his function to send an election message the day before the local elections. The DPA decided that a mayor has an exemplary role in terms of compliance with the GDPR and sentenced him to a fine of €2,000.

On 17 September 2019, the DPA issued its second administrative fine, in the amount of €10,000. That case related to a breach of the GDPR by a store that only allowed individuals to receive loyalty cards if they disclosed certain data on their ID cards.

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Q24/ Regulatory Guidance

Has the DPA issued any significant guidance on the application of the GDPR or national implementation law?

At present, the DPA has only issued guidance on the application of the GDPR. This guidance is relatively general:

  • an overview of the background of the GDPR as well as principles and obligations of professionals subject to the GDPR (see here (in Dutch) / see here (in French); and; and
  • a (general) overview of the rights of citizens under the GDPR (see here (in Dutch) / see here (in French).

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White & Case contributors

Nathalie Colin

Nathalie Colin
Partner, White & Case
T +32 2 239 25 32
E [email protected]

Nathalie has been a commercial litigator since 1994, with extensive experience in cross-border and domestic litigation in both the banking and corporate sectors. She has comprehensive experience in national and international complex arbitration, contract law, law of obligations and torts, commercial and construction law.

Her practice encompasses both judicial proceedings before courts and arbitration proceedings under the aegis of the ICC or CEPANI.

Nathalie also specialises in white collar crime and regulatory investigations. She has represented large financial and corporate institutions in high-profile white collar and corporate litigation, including securities litigation.

Other areas of expertise include procedures before the Supreme Court of Belgium.

Nicolas Vande Velde

Nicolas Vande Velde
Associate, White & Case
T +32 2 239 25 46
E [email protected]

Nicolas joined White & Case in 2019 as an associate in the Dispute Resolution Practice of our Brussels office.

He advises, represents and defends domestic and international clients on all types of litigation matters, with a particular focus on the following core areas: complex international civil, corporate and commercial disputes; international arbitration; white collar crimes and regulatory investigations.

After completing his Master in Law at the Université Libre de Bruxelles, he obtained an LL.M. from the University of Chicago, where he was a BAEF Scholar.

Elien Claeys

Elien Claeys
Associate, White & Case
T +32 2 239 25 17
E [email protected]

Elien is an associate in the Dispute Resolution Practice of our Brussels office.

She advises, represents and defends domestic and international clients on all types of litigation matters, with a particular focus on the following core areas: complex international civil, corporate and commercial disputes; international arbitration; white collar crimes and regulatory investigations.

Apart from holding a Degree in Law from the KU Leuven, Elien obtained an LL.M. from the University of Edinburgh, where she specialised in white collar crimes.

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Other chapters

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See also:

Our Global Data, Privacy & Cybersecurity Practice »

GDPR Handbook: Unlocking the EU General Data Protection Regulation »

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