The ministerial order, passed last month, changes the current rules regarding the emergency measures aimed at limiting the spread of the coronavirus was quietly implemented in January.

Ministerial order gives broad powers to track workers

The order gives the National Social Security Office large-scale powers to track employees and freelance workers using data mining and data matching. One of the aims of the order seems to be to process large amounts of sensitive health data, by connecting and combining different databases. This could help authorities better monitor the risk of infection in the workplace, but it also strips data subjects of their rights and freedoms.

The phrasing of Article 8, which lacks detail, gives authorities the power to invade privacy. This article refers to all data stored in the National Public Health Research Institute (Sciensano), including (we believe) data on vaccinations. It also includes a disproportionate amount of data on individuals, whether they have had COVID-19 or not, and a large number health institutions.

Open debate, consultations needed

This article is part of a ministerial order that it is not enshrined in law. This makes it vital that lawmakers address this issue because for it to pass into law would require open public debate, systematic consultations of specialized advisory bodies (such as the Council of State and the Data Protection Authority), a better communication and awareness, as well as a clear procedure.

Since the start of the pandemic, we have been desperately waiting for laws that ensure our democratic bodies work properly and to protect fundamental values. Instead we have had only ministerial orders and special powers, and we are still waiting for a debate on these issue.

We fear that these “temporary” measures will remain even when life gets back to something like normal.

For this reason, the League of Human Rights (LDH) has decided to challenge this ministerial order before the Council of State. The order is so broadly phrased that it allows any public service (police services, mayors, etc.) to access the data it mentions and use it for potentially repressive purposes.

Three goals of the legal action

• Draw attention to how executive power should respect the basic principles of our democratic functioning.
• Emphasize that collecting sensitive health data must comply with constitutional and international rules.
• Call on lawmakers to consider whether collecting data on people’s health is really necessary, and if so that it complies with the legal framework, to ensure the respect for the economic, social and cultural rights (and especially the fundamental right to health or the right to health protection).

Measures that respect fundamental freedoms are badly needed

What is really disappointing here is that these measures could have helped better respect the right to health protection for employees and freelance workers.

It is necessary to collect this kind of data to get a picture of how coronavirus is evolving in workplaces, which allows strategies to be adapted to limit the spread of the disease and bring sanctions when justified. But if the purpose of this Article 8 of this order was really to protect the health and safety of workers, then a social consultation should have taken place beforehand.

Occupational health and safety are major issues, both in terms of public health and in terms of respect for the fundamental rights of data subjects. The ministerial order should have allowed the national labor inspectorate to do a better job. Oversight of health and well-being at work is required by several obligations provided by EU directives that Member States must comply with and enforce.

LDH's hand forced by DPA's dereliction of duty

Unfortunately, Belgium does not seem to appreciate how important these obligations are. This is why LDH has called for the provision to be cancelled, while calling on the lawmakers to protect the health and well-being protection of workers, especially those on the frontline of the fight against COVID-19.

It is also worrying that LDH has been forced to act on this issue, as the official body whose main responsibility to do this, the Data Protection Authority (DPA), has turned a blind eye.

LDH calls on the DPA to fulfill its responsibilities and protect the right to privacy during this critical period. It also calls on Parliament to address the issue and ensure an open democratic debate, which is necessary and urgent.

This legal action is part of a European COVID-19 Contact Tracing App Litigation Project set up by Liberties and financed by the Digital Freedom Fund.