View source for Rb. Amsterdam - C/13/677172 / HA RK 19-435

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|Jurisdiction=Netherlands
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=Rb. Amsterdam
|Court_With_Country=Rb. Amsterdam (Netherlands)

|Case_Number_Name=C/13/677172 / HA RK 19-435
|ECLI=ECLI:NL:RBAMS:2020:2183

|Original_Source_Name_1=Rechtspraak.nl
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2020:2183
|Original_Source_Language_1=Dutch
|Original_Source_Language__Code_1=NL

|Date_Decided=02.04.2020
|Date_Published=07.12.2021
|Year=2020

|GDPR_Article_1=Article 82 GDPR
|GDPR_Article_Link_1=Article 82 GDPR



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|Initial_Contributor=Martijn Staal
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The District Court of Amsterdam rejected a claim for compensation of immaterial damages under [[Article 82 GDPR]], because the data subject could not provide any evidence that the control of their personal data was lost at any point.

== English Summary ==

=== Facts ===
Data subject and their spouse applied for membership of the Nederlands Israëlitische Hoofdsynagoge (the Dutch Israeli Main Synagogue), the controller, in 2014. On 22 March 2019 data subject requested that the membership of him and his family be terminated immediately and that all personal data be destroyed as soon as possible. They repeated this request 31 October 2019 after having received no substantive reply of the data controller. On the same day, the data controller replied that they did not store the data subject's personal data any longer than required, but that it is necessary to retain their personal data indefinitely, even after termination of the membership, because this personal data is required to verify "halachic status of [data subject's] descendants".

Data subject replied that this had no effect to his request. In response the controller said that they would not be granted. On 17 November 2019, data subject filed a complaint with the AP (Dutch DPA). The complaint was still under consideration at the time of this court case. On 19 December, data subject filed a case and requested the District Court to order the data controller to delete their personal data, and pay claimant €1,500 in damages on the basis of [[Article 82 GDPR]]. Data subject argued to have had €250 in material damages for the costs of the trial, €500 in immaterial damages because of "loss of control of their personal data", and €750 in immaterial damages because of stress and uncertainty relating to the trial.

=== Holding ===
The District Court rejected all claims. 

First, the Court held that data subject no longer had any interest in the erasure request, because the controller deleted the personal data before the Court gave its verdict. Furthermore, the Court ruled that the claimed €250 in material damages were legal costs, and, therefore, do not qualify for damage compensation. Moreover, it held that the claim of €750 in immaterial damages is inherent to filing a court case and finds no basis for compensation in [[Article 82 GDPR]]. Lastly, the Court stated that the other claim of €500 in immaterial damages because of "loss of control of personal data", is unsubstantiated. Data subject based this claim on case law where the controller provided personal data unlawfully to third parties, but in this case no such evidence was provided.

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

<pre>

                                
                            
        



    Body
    Court of Amsterdam
    Date of judgment
    02-04-2020

    Date of publication
    
07-12-2021

    Case number
    
C/13/677172 / HA RK 19-435

    
    Jurisdictions
    
Civil rights
    
    Special characteristics
    
First instance - single
Order
    
    Content indication
    
AVG claim. Request deletion of personal data and material and intangible compensation pursuant to art. 82 GDPR due to unlawful processing of personal data. No more interest in removal request due to amicable settlement. Rejection of compensation.

    Locations
    
Rechtspraak.nl
    
        
        
            Enhanced pronunciation
        





    
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            Pronunciation
        
        
  
    
      
        
          
        
      
      
        
          
        
      order
    COURT OF AMSTERDAM
    
    
      Department of private law
     
    
    
    
    
      case number / claim number: C/13/677172 / HA RK 19-435
     
    
    
      
        Order of April 2, 2020
      
     
    
    
    
      in the case of
     
    
    
      
        
          [applicant]
        ,
      residing at [residence] ,
      applicant,
      lawyer mr. I. Brouwer in Amsterdam,
     
    
    
      in return for
     
    
    
      the denomination possessing legal personality
      
        DUTCH ISRAELITE MAIN SYNAGOGE,
      Based in Amsterdam,
      defendant,
      lawyer A.T. Eisenmann in Amsterdam.
     
    
    
  
  
    
      1 The procedure
    
      1.1.
      The course of the procedure is apparent from:
      
        -
          the application, with exhibits, received at the registry on 19 December 2019,
        
        -
          the order of the court of January 30, 2020 determining an oral hearing,
        
        -
          the official report of the oral hearing held on February 18, 2020 and the documents referred to therein
        
        -
          the fax from mr. I. Brouwer dated 12 March 2020 with comments on the aforementioned official report,
        
        -
          the fax from mr. A.T. Eisenmann in response to the aforementioned fax from mr. I. Brouwer.
        
      
      
    
    
      1.2.
      The decision has been made today.
      
      
    
  
  
    
      2 The facts
    
      2.1.
      On September 28, 2014, [applicant] and his wife signed the NIHS Membership Application Form. In so far as relevant, it states the following:
      
      
        The undersigned hereby acknowledges that he/she and the following persons belonging to the family are applying for membership of the Jewish Community of Amsterdam (NIHS), and hereby states the relevant personal data. The undersigned gives permission for both himself and the persons belonging to the family to record the personal data and/or changes relating to the membership administration of the NIHS and authorizes the NIHS to use it in accordance with the provisions and guidelines for such administration in within the framework of the Personal Registration Act.'
       
      
    
    
      2.2.
      On February 16, 2015, [applicant] and his wife wrote to the NIHS requesting that they terminate their membership with immediate effect and that all personal data be deleted and kept deleted.
      
    
    
      2.3.
      By e-mail dated 16 February 2016, [applicant] requested that the termination be withdrawn.
      
    
    
      2.4.
      On March 22, 2019, [applicant] again requested by e-mail to terminate the membership of him and his family with immediate effect and to destroy all personal data as soon as possible.
      
    
    
      2.5.
      
        [Applicant] has received an acknowledgment of receipt of his request from the NIHS with the announcement that his request will be returned to at a later date.
      
    
    
      2.6.
      
        [Applicant] did not hear anything until October 31, 2019 and by letter of that date again submitted a request for the destruction of the personal data of himself and his family.
      
    
    
      2.7.
      In response, [applicant] received an e-mail from the NIHS on the same day, referring to the NIHS privacy regulations, containing the following passage:
      
      
        The NIHS does not store your personal data longer than necessary for the purpose for which it was provided or required by law. However, it is necessary for the functioning of the NIHS that your personal data is kept indefinitely by it, even after you have terminated your membership with the NIHS. This is because your personal data is reasonably necessary, among other things, to check the halachic status of descendants. To the extent permitted by law, you have the right to view, correct, delete or limit your personal data.'
       
      
    
    
      2.8.
      
        [Applicant] subsequently informs the NIHS that his request remains unchanged.
      
    
    
      2.9.
      On November 7, 2019, [applicant] contacted the NIHS, whereby the NIHS informed him that it would not grant the request.
      
    
    
      2.10.
      On 14 November 2019, [applicant] submitted a complaint to the Dutch Data Protection Authority, which complaint is still being processed.
      
      
    
  
  
    
      3 The request and the defence
    
      3.1.
      
        [applicant] requests by decision:
      
        
          order the NIHS to destroy and keep the personal data of [applicant] and his wife [name of wife], as well as of his children, destroyed and to hand over evidence thereof on pain of a penalty of EUR 1,000.00 per day that the NIHS in failure to comply with the order;
        
        
          order the NIHS to pay damages of EUR 1,500.00 pursuant to Article 82 GDPR within 14 days of the decision;
        
        
          to determine a day and time for the oral hearing of the petition;
        
        
          declare the decision to be issued provisionally enforceable;
        
        
          ordered the NIHS to pay the costs.
        
      
    
    
      3.2.
      
        In summary, [applicant] based his request that the processing of the personal data is based on the explicit consent when entering into membership. The processing after the withdrawal of this consent with the request for the destruction of all personal data on March 22, 2019, is without a legal basis and therefore unlawful within the meaning of the GDPR. In addition, there are special personal data as referred to in Article 9 of the GDPR and their processing is prohibited now that the exception in Article 9 paragraph 2 under d of the GDPR does not apply either. Moreover, an invocation of the privacy regulations by NIHS cannot be regarded as a legal basis as referred to in Article 6 of the GDPR. [applicant] further claims material and immaterial compensation on the basis of Article 82 of the GDPR, now that, according to him, there is unlawful processing of personal data.
      
    
    
      3.3.
      The NIHS defends and requests that the [applicant]'s request be rejected and the [applicant] is ordered to pay the costs of these proceedings. The NIHS takes the position that the processing of personal data is based on the consent of [applicant] and also on the basis of a legitimate interest pursuant to Article 6 paragraph 1 sub f AVG and if necessary Article 9 paragraph 2 sub f AVG.
      
    
    
      3.4.
      Insofar as relevant, the parties' arguments are discussed in more detail below.
      
      
    
  
  
    
      4 The assessment
    
      4.1.
      If not contradicted, it is assumed that [applicant] withdrew the consent given to the NIHS on September 28, 2014, for the processing of the personal data of him and his family, on March 22, 2019. The dispute between the parties concerns the question of whether or not the NIHS subsequently processed the personal data in question lawfully.
      
      
        
          receptiveness
        
       
      
    
    
      4.2.
      If a controller – not being an administrative body – does not discontinue the processing of personal data as a result of a submitted objection, the interested party can submit a request to that effect to the court.
      
      
      
        This request must be submitted within six weeks of receipt of the controller's response to the objection pursuant to the provisions of Article 35, paragraph 2 of the GDPR Implementation Act. It is not disputed between the parties that [applicant] submitted his request within the prescribed period. It follows that the [applicant]'s request is admissible.
       
      
      
        
          Interest request
        
       
      
    
    
      4.3.
      
        [applicant] requests the removal of the personal data in question and their removal by the NIHS. At the hearing, the NIHS submitted a letter from the NIHS dated February 17, 2020 with the following statement: “As of January 12, 2020, the Jewish Community of Amsterdam (Dutch Isr. Hoofd Synagogue Amsterdam) has removed the personal data of the [applicant] family from its systems. .” At the hearing, the parties agreed on a supplement to this statement, which reads as follows: “The Respondent will request the system administrator by letter within two weeks from today to remove and keep the digital history of the personal data of the Applicant. It will furthermore inform any third parties within two weeks after today, if applicable, of the deletion of this personal data and request them to act accordingly. The defendant also declares that it will keep the personal data removed. The applicant declares to agree to this.”
      
    
    
      4.4.
      In view of the aforementioned statements, [applicant] no longer has an interest in his request to order the NIHS to remove and keep the personal data removed. As a result, the court will deny this request.
      
      
        
          Compensation
        
       
      
    
    
      4.5.
      
        If and insofar as it is established that there is unlawful processing of personal data by the NIHS, on which [applicant] invokes, [applicant] claims material and immaterial compensation on the basis of Article 82 of the GDPR.
        The NIHS primarily disputes the unlawful processing of personal data. In the alternative, the NIHS disputes the material and immaterial damage claimed.
       
      
    
    
      4.6.
      The question of whether there is unlawful data processing by the NIHS can be left open, in view of the following.
      
    
    
      4.7.
      
        
          [applicant] claims to have suffered material damage because the repeated requests to delete the data cost him time, money and effort. The costs include travel and telephone costs, sending e-mails as well as visiting the Legal Counter and his lawyer, and amount to EUR 250.00, according to [applicant] .
        Now that there is no substantiation of these costs, the court will reject them for that reason. It should also be noted that spending time for legal proceedings, as the NIHS rightly argued at the hearing, is indispensable when conducting legal proceedings and the costs thereof are (partly) included in the costs of the proceedings. For that reason too, these costs are not eligible for compensation.
       
      
    
    
      4.8.
      
        The claimed non-material compensation consists of two components, according to [applicant] . An amount of EUR 500.00 is claimed for the loss of control of personal data. However, [applicant] has not sufficiently explained his claim that he suffered immaterial damage as a result of loss of control of his personal data. Nor has it been shown that the NIHS has provided its personal data to third parties, as was the case in the case law that [applicant] invokes in connection with the award of compensation under the GDPR.
        In addition, [applicant] claims an amount of EUR 750.00, which relates to the stress of conducting legal proceedings, the uncertainty about whether or not they will be successful and feeling misunderstood. However, this is inherent in conducting legal proceedings to settle a dispute and as such has no basis for compensation on the basis of Article 82 GDPR.
        On the basis of the foregoing, the court concludes that the full amount claimed for intangible compensation will be rejected.
       
      
    
    
      4.9.
      The court sees reason to have the parties each bear their own legal costs.
      
      
    
  
  
    
      5 The decision
    The court denies the requests.
    
    
    
      This decision was given by mr. P.J. van Eekeren, judge, assisted by mr. M.W.J. Kerren, Clerk, and pronounced in public on April 2, 2020.1
    
  
  
1
    type: Eve
    col: MK
  


    
</pre>