View source for Rb. Rotterdam - C/10/576091/HA RK 19-701

{| class="wikitable" style="width: 25%; margin-left: 10px; float:right;"
! colspan="2" |Rb. Rotterdam - C/10/576091/HA RK 19-701
|-
| colspan="2" style="padding: 20px; background-color:#ffffff;" |[[File:courtsNL.png|center|250px]]
|-
|Court:||[[:Category:Rb. Rotterdam (Netherlands)|Rb. Rotterdam (Netherlands)]]
[[Category:Rb. Rotterdam (Netherlands)]]
|-
|Jurisdiction:||[[Data Protection in the Netherlands|Netherlands]]
[[Category:Netherlands]]
|-
|Relevant Law:||[[Article 15 GDPR]] 
[[Category:Article 15 GDPR]]
|-
|Decided:||21.01. 2020 
[[Category:2020]]
|-
|Published:||23.01. 2020
|-
|Parties:||n/a
|-
|National Case Number:||C/10/576091/HA RK 19-701
|-
|European Case Law Identifier:||<small>ECLI:NL:RBROT:2020:483</small>
|-
|Appeal from:||n/a
|-
|Language:||Dutch
[[Category:Dutch]]
|-
|Original Source:||[https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2020:483&showbutton=true&keyword=AVG (in NL)]
|}

21 January 2020, the Rotterdam Court of First Instance considered that the data subject's request to order the State to grant an access to procedural files was not admissible. The court ruled that data subject do not automatically have the right to inspect or copy the documents or files containing their personal data, under Article 15 GDPR. However, there is a right to a complete overview, in comprehensible form, of all personal data.

==English Summary==

===Facts=== 
The plaintiff asked from the Erasmus University Medical Centre Rotterdam (“EUMCR”) to provide her the DNA material of a person died in 2018 alleging that this person was her father. The deceased man had participated in a medical-scientific research at the EUMCR, prior to which he had filled in a “patient consent form”. According to this form, he expressed his wish that his body material would be treated confidentially. The EUMCR refused to provide the plaintiff the DNA material claiming that:

*there is no legal basis under which it is obliged to provide this material,
*the man’s wish had been expressed unambiguously, thus such a disclosure would contravene the GDPR and
*it is bound by professional secrecy.

===Dispute=== 
The Court had to balance the plaintiff’s right to personality which includes her right to know her parents and the right of the deceased man and his family to privacy which is here protected by the EUMCR’s duty of confidentiality.

===Holding===
The Court went through this balancing exercise and first invoked [[Article 1 GDPR #r1|Recital 1 GDPR]] and [[Article 1 GDPR #r4|Recital 4 GDPR]] and the definition of processing under [[Article 4 GDPR#4|Article 4(2) GDPR]]. 

Then, it noted that according to [[Article 9 GDPR]] and [[Article 4 GDPR #r35|Recital 35 GDPR]] genetic data must be protected as sensitive data. The man’s consent to processing was only referred to the purposes of the research he participated in. Further, none of the requirements in [[Article 9 GDPR#2|Article 9(2) GDPR]] is fulfilled. 

The Court concluded that in this case the interest of the EUMCR must outweigh the plaintiff’s interest and the EUMCR must not provide her the DNA material. 

The Court rejected the plaintiff's claim.

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==English Machine Translation of the Decision==

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

<pre>
disposal
ROTTERDAM COURT

Trade and port team

Case number / petition number: C/10/576091 / HA RK 19-701

Decision of 21 January 2020

in the matter of

[applicant] ,

living in Delft,

petitioner,

appeared in person,

and

the public-law entity

THE STATE OF THE NETHERLANDS,

Ministry of Justice and Security,

more specifically, the General Administration of the Court [name of court] ,

having its registered office at [place of business] ,

defendant,

attorney at law M.M.C. van Graafeiland in The Hague.

The parties will hereinafter be referred to as [applicant] and the State.
1 The procedure
1.1.

An application dated 30 January 2019, with productions 1 to 10, was received at the Registry of the District Court [name of the District Court] on 31 January 2019.
1.2.

By order of 21 May 2019, the Subdistrict Court of the District Court [name of court] referred the case, as it stands, to the Commercial Team of the District Court [name of court] .
1.3.

By order of 14 June 2019, the district court [name of district court] referred the case, as it stood, to the Rotterdam District Court.
1.4.

By letter dated 1 October 2019, Mr. Van Graafeiland acted on behalf of the State.
1.5.

Contrary to her letter of 1 October 2019, by letter of 13 November 2019, Mr. Van Graafeiland stated that she exclusively stood up on behalf of the State in the present case and in the cases with case numbers C/10/576071 / HA RK 19-693, C/10/576074 / HA RK 19-694, C/10/576079 / HA RK 19-696, C/10/576096 / HA RK 19-703 and C/10/576129 / HA RK 19-708.
1.6.

A statement of defence containing productions 1.1 to 2c was received at the Registry of this Court on 2 December 2019.
1.7.

Also on 3 December 2019 a letter from [the applicant] with annexes was received at this court.
1.8.

On 10 December 2019 this case was heard orally at the same time at the public hearing with the petition proceedings pending before this court with case number C/10/576071 / HA RK 19-693 C/10/576074 / HA RK 19-694, C/10/576079 / HA RK 19-696, C/10/576083 / HA RK 19-697, C/10/576085 / HA RK 19-698, C/10/576094 / HA RK 19-702, C/10/576096 / HA RK 19-703, C/10/576110 / HA RK 19-706, C/10/576126 / HA RK 19-707, C/10/576129 / HA RK 19-708, C/10/576131 / HA RK 19-709 and C/10/576134 / HA RK 19-710.
1.9.

Finally, the decision has been adopted today.
2 The dispute
2.1.

The applicant seeks an order that the State be ordered to grant [the applicant] access to the case-file in which he is involved. In support of his application, [the applicant] submits that the State failed to provide information on the action taken on the application without delay and within the time limits laid down in the General Data Protection Regulation (EU) 2016/679 (AVG) following receipt of his application. On the occasion of the oral hearing, [the applicant] claimed that the relevant case files in which he was involved contained forgeries. By granting access to those case-files, [the applicant] wishes to prove his innocence.
2.2.

The State puts forward a defence and claims that [the applicant] should be declared inadmissible in his application, or at least that his application should be rejected, and that [the applicant] should be ordered to pay the costs. The State claims in that regard that the State has already decided on [the applicant's] applications. Nor has [the applicant] stated and explained why the content of those decisions is incorrect. Moreover, the applications of [the applicant] do not form part of these proceedings.
2.3.

The arguments of the parties are discussed in more detail below, in so far as they are relevant.
3 The assessment
3.1.

The starting point for the assessment of any civil dispute is that the court examines the case and decides on the basis of what the parties have put forward in their requests. Pursuant to the provisions of Article 21 of the Code of Civil Procedure, the parties are obliged to fully and truthfully state the facts relevant to the decision. This also means that the parties must submit the documents relevant to the decision.
3.2.

In the opinion of the District Court, [the applicant] has not done so. For instance, no documents have been submitted showing that [the applicant] has submitted an application for inspection to the State and that he has received a possible response from the State to this application. In these circumstances, it is not possible to decide on the substance of the application, so that [the applicant] is declared inadmissible in his application.
3.3.

The District Court considers it superfluous that in case [the applicant] would have been admissible in his application, the application would not have been allowable either.
3.4.

The right of inspection that was previously laid down in article 12 of the Privacy Directive 95/46 has now been included in article 15 of the AVG. The purpose of this right is to enable the data subject to have access to the personal data collected about him or her and to check that these data are accurate and lawfully recorded. For the time being, there are no indications that under the AVG the objective and scope of this right of access has changed compared to the Privacy Directive, so that case law on the right of access that was established at the time of the Privacy Directive still applies now that the AVG is in force.
3.5.

Article 15 paragraph 3 of the AVG gives the right to a copy of the personal data being processed. Documents as such are not personal data and the AVG does not refer to the provision of a copy of the documents in which the personal data have been processed. The right of inspection therefore does not mean that the person concerned has a right of inspection or copies of the documents or files as such if they contain his or her personal data. However, there is a right to a complete overview, in comprehensible form, of all personal data. In other words, in a form that enables the data subject to inspect his or her data and to check that they are correct and have been processed lawfully. Insofar as this can be met by another form of disclosure, the data subject cannot derive the right from the AVG to obtain a copy of the original document or file containing the data (ECJ 17 July 2014, ECLI:EU:C:2014:2081). The concrete material form in which the data must be provided therefore depends on the concrete circumstances.
3.6.

On the occasion of the oral hearing, [the applicant] explicitly and unequivocally stated that he requests access to procedural files that the court [name of the court] or the State has dealt with in relation to [the applicant]. The court thus understands that access is requested to procedural files in cases in which [applicant] was involved as a party to the proceedings. The application would, in case of admissibility of [applicant] in his application, not be granted. The parties to legal proceedings have their own case-file containing the procedural documents and copies of letters in the case in question.
3.7.

The District Court is of the opinion that the application would not qualify for granting either, because [the applicant] is making an abuse of rights within the meaning of Article 3:13 of the Civil Code by frequently submitting applications on the basis of the AVG. The purpose of the right of inspection is to enable the data subject to take cognizance of the personal data collected about him and to check whether those data are correct and have been processed lawfully. On the occasion of the Oral Hearing, [the applicant] stated that he submitted the applications solely to prove his innocence with documents relating to procedural files in which he was involved as a party to the proceedings. In so far as it must be established that the purpose pursued by [the applicant] is not to verify the accuracy and lawfulness of his personal data, but to obtain information which he wishes to use in order to provide (further) evidence of his innocence in any proceedings to be brought against the State. The purpose of [the applicant]'s right of inspection does not concern the protection of personal data, so that there is an abuse of rights.
3.8.

Now that [the applicant] has been declared inadmissible in his application, he will be ordered to pay the State's legal costs. To date, the costs of the proceedings on the part of the State have been estimated at an amount of € 639.00 in court registry fees and zero lawyer's salary. Now the State in the present case and in the cases with case number C/10/576071 / HA RK 19-693, C/10/576074 / HA RK 19-694, C/10/576079 / HA RK 19-696, C/10/576096 / HA RK 19-703 and C/10/576129 / HA RK 19-708 conducted the same defence, one point was awarded to the lawyer's salary in the case with case number C/10/576071 / HA RK 19-693. In the other cases, such as the present one, no point is therefore awarded to an attorney at law salary.
4 The decision

The court
4.1.

Declares [the applicant]'s application inadmissible;
4.2.

orders [the applicant] to pay the costs of the proceedings, assessed on behalf of the State at

€ 639,00.

This decision was taken by Mr A.F.L. Geerdes and pronounced in public on 21 January 2020.

2897/676
</pre>