RvS - 202001809/1/A3

RvS - 202001809/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 16 GDPR
Decided:	04.11.2020
Published:	04.11.2020
Parties:	President of the bar of Eastern Brabant
National Case Number/Name:	202001809/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2020:2642
Appeal from:	Rb. Oost-Brabant (Netherlands) 19/1919
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Council of State ruled that the rectification request to have the incomplete personal data completed cannot be extended to supplementing documents.

English Summary

Facts

On 15 December 2017 appellant filed a disciplinary complaint against a lawyer who previously assisted him in a criminal case. In a letter from 17 September 2018, the president of the local bar shared his position statement on the complaint. On 6 May 2019 appellant submitted a request for rectification under Article 16 of GDPR, because, according to appellant, a specific sentence was missing in the statement. In the decision of 24 May 2019, the president of the bar of Eastern Brabant rejected the appellant’s request to rectification.

Dispute

The president of the bar of Eastern Brabant is of the opinion that his position statement does not constitute personal data of the appellant, which means the right to rectification is not applicable. Appellant believes that the right to rectification must be respected and that the president of the bar interprets the term “rectification” too narrowly, excluding the completion of incomplete data.

Holding

The Council of State ruled that the rectification request to have the incomplete personal data completed cannot be extended to supplementing documents. The president of the bar was correct: Article 16 GDPR does not allow appellant to add a sentence in the president’s statement.

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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.

202001809/1 / A3.

Date of judgment: November 4, 2020

SECTION

ADMINISTRATIVE LAW

Judgment on the appeals of:

1. [appellant sub 1], residing in [place of residence],

2.the President of the Bar Association in the East Brabant district,

appellants,

against the decision of the East Brabant District Court of 6 February 2020 in case no.19/1919 in the proceedings between:

[appellant sub 1]

in

the blanket.

Process course

By decision of 24 May 2019, the President rejected a request from [appellant 1] for rectification.

By decision of 21 June 2019, the President declared the objection made by [appellant under 1] to this unfounded.

By judgment of 6 February 2020, the court declared the appeal lodged against it by [appellant under 1] to be well-founded, quashed the decision of 21 June 2019 and determined that the legal consequences of the quashed decision remain valid. This statement is attached.

[Appellant 1] has lodged an appeal against this decision.

The Dean has given a written statement. The Dean also lodged an incidental appeal.

[appellant under 1] has given an opinion on the cross-appeal.

[appellant sub 1] has submitted further documents.

The Department heard the case on October 13, 2020, where the Dean, represented by [attorney], appeared.

Considerations

preface

1. In a letter dated 15 December 2017, [appellant sub 1] filed a disciplinary complaint against [lawyer], who previously assisted him as a lawyer in criminal proceedings. In a letter of 17 September 2018, the dean issued a so-called dean position. By letter of 6 May 2019, [appellant 1] requested the President on the basis of Article 16 of the General Data Protection Regulation (hereinafter: the GDPR) to rectify the President's position, because, according to him, the following is missing:

"2009" prosecution notifications had already been put forward for defense in the council chamber of the District Court of Breda on 13 January 2010 "lawyer with tax adviser des client", simply omitted by [lawyer] in his appeal, which caused [lawyer] to be suspended as legal counsel in the execution proceedings. "

Decisions of the blanket

2. In the decision of 24 May 2019, the President rejected the request for rectification. The President has stated that the request for rectification is based on the assertion of [appellant under 1] that [lawyer] omitted "lawyer with tax adviser to the client" in the appeal in cassation drawn up by him. According to the President, this does not concern personal data, so that he cannot rectify it on the basis of Article 16 of the GDPR.

3. In the decision of 21 June 2019, the President declared the objection of [appellant under 1] unfounded. He has maintained his position that the addition requested by [appellant under 1] is not personal data. He has taken the position that the conclusion in the blanket position and the complaint description are not personal data for which an addition or improvement can be requested as referred to in Article 16 of the GDPR. It is about his judgment as a dean. In the dean's position, only the dean's own view on the complaint is set out.

The President has decided not to hear [appellant under 1] because, according to him, the objection is manifestly unfounded as referred to in Article 7: 3, opening lines and under b, of the General Administrative Law Act (hereinafter: the Awb).

Attacked verdict

4. The court considered that [appellant under 1] explained at the hearing that with his request for rectification he intends that the President designates him in the text of the President's position as "legal assistance provider". Although the Dean has rightly taken the position that the blanket position as a document and in its entirety is not personal data, this does not mean that personal data is never included in a blanket position. That is why there is a lack of motivation in the decision of 21 June 2019. The court has therefore declared the appeal well-founded and has annulled the decision due to violation of article 7:12 of the Awb. The court has seen reason to uphold the legal consequences of the annulled decision. To this end, the court considered that the capacity of legal assistance provider could be personal data that is added to personal data in the context of a request for addition. However, no personal data of [appellant sub 1] is mentioned in this specific blanket position. The nature and content of the blanket position mean that [appellant sub 1] himself does not appear in it with any personal data, except in the addressing. The address is not the place to state a (pretense) professional practice. Furthermore, [appellant sub 1] is referred to as "you" in the opinion of the chairman. The President's position deals exclusively with the behavior of [lawyer] as the former lawyer of [appellant under 1]. When explicitly asked about where the completion should be affixed, [appellant under 1] indicated that this should be done at the beginning of the blanket position, in the first paragraph. This paragraph does not contain any personal data of [appellant under 1]. It is therefore not possible to complete that paragraph. The President was therefore right to reject the request for rectification, but on incorrect grounds.

The court further considered that the Dean wrongly refrained from hearing [appellant under 1]. In view of the nature of the lack of reasoning attached to the decision of 21 June 2019, it cannot be said that it was immediately clear that [appellant 1] 's objections are unfounded and that there is no doubt about this. Moreover, the Dean acknowledged at the hearing that the request of [appellant under 1] was not (so) clear before. This means that there was sufficient reason to discuss the matter at a hearing. The court has overruled this defect in application of Article 6:22 of the Awb.

Assessment (incidental) appeal

5. The President argues that the District Court failed to recognize that what [appellant sub 1] put forward at the hearing cannot be regarded as an explanation of his request for rectification of 6 May 2019. Both that request and the objection show that [appellant sub 1] wanted a substantive adjustment of the blanket position. For the first time at the court hearing, [appellant under 1] stated that the term 'legal assistance provider' should be added to the first paragraph of the blanket position. This is a new request and is not an explanation of the request of 6 May 2019. The court also wrongly considered that the decision of 21 June 2019 has a lack of motivation. The dean has never stated that a dean position cannot contain personal data. However, this was not the case, because [appellant sub 1] requested a substantive adjustment of the deans position, according to the dean.

5.1. The request for rectification of 6 May 2019 cannot reasonably be read in any other way than that [appellant sub 1] requests the President to supplement the President's position with the assessment of a particular aspect. It was clear to the President what [appellant under 1] meant by the phrase "lawyer with tax adviser to the client" in the request. It is therefore important that in the context of other proceedings many documents had already been exchanged between [appellant sub 1] and the President. It is also important that [appellant sub 1] refers for the above-mentioned phrase to a decision of the Breda District Court dated 13 January 2010 attached to the request on a claim of the public prosecutor. That decision contains a similar phrase, namely "the counsel and / or tax adviser of […] client of [[appellant sub 1]]". In short, the point is that [appellant under 1] states that his former lawyer [lawyer] wrongly failed to include in his cassation proceedings in criminal proceedings about harassment that [appellant under 1] acted for his client and approached persons who were a lawyer or tax adviser to his client. According to him, this omission of [lawyer], as [appellant 1] sees it, should have been assessed by the dean in the dean's position. The dean rightly states that it was [appellant sub 1] to make a substantive change to the dean's position. Insofar as the statements made by [appellant under 1] at the hearing before the court should already be interpreted in such a way that he only wants him to be designated as legal assistance provider in the blanket position, this cannot be seen as an explanation of the request for rectification of 6 May 2019 .

5.2. In itself, the court has correctly considered that a blanket standpoint may also contain personal data. The blanket does not dispute this and has not done this before. The Dean rightly argues that the court wrongly considered that there is a lack of reasoning on this point in the decision of 21 June 2019. Now that [appellant sub 1], as considered above, with his request for rectification asked for a substantive change to the dean's position, the President had to answer the question whether Article 16 of the GDPR provides a basis for this. So did the blanket.

The argument succeeds.

6. The dean's appeal is well-founded for this alone. Because the court has assumed an incorrect reading of the request for rectification in its further assessment, the attacked judgment must be quashed for this reason alone. It is not necessary to go into the other grounds of the appeal of the President.

7. [appellant sub 1] no longer has an interest in assessing his appeal. After all, the attacked judgment must be quashed anyway. Moreover, his appeal is only directed against parts of the contested decision in which the above incorrect reading of the request for rectification was taken as the starting point. This reading of the request cannot be discussed in these proceedings. The appeal of [appellant sub 1] is inadmissible.

8. In doing what the court should do, the Division will hereafter assess the appeal of [appellant under 1] against the decision of the President of 21 June 2019.

Appeal assessment

9. [appellant under 1] argues that the President has given too limited an explanation of the term 'rectification'. According to him, this also includes giving a supplement in case of incompleteness, as is also apparent from the English, French and German text of the GDPR. Questions must be referred to the Court of Justice for a preliminary ruling on the interpretation of this concept, according to [appellant under 1].

9.1. Article 4 of the GDPR reads: "For the purposes of this regulation:

1) "personal data" means any information relating to an identified or identifiable natural person ("the data subject"); an identifiable person is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or one or more elements characteristic of the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person;

[…]"

Article 16 states: "The data subject has the right to obtain from the controller without delay rectification of incorrect personal data concerning him / her. Taking into account the purposes of the processing, the data subject has the right to have incomplete personal data completed, including by means of a supplementary statement. to provide."

9.2. It follows from the text of Article 16 of the GDPR, also in the Dutch version, that the right to rectification also includes the right to completion of incomplete personal data. However, it is not the case that this provision generally gives the right to supplement documents. In this case, [appellant under 1] is of the opinion that the President has not been complete in the assessment of the disciplinary complaint, as stated in the position of the President. According to [appellant under 1], the Dean should have included another aspect in his assessment. According to him, the blanket position should be supplemented with an assessment of this aspect. However, this is not an addition to [appellant sub 1] concerning personal data, but a substantive addition for which Article 16 of the GDPR is not intended. There can reasonably be no doubt about this, so that, in view of the judgment of the Court of Justice of 6 October 1982, Cilfit, ECLI: EU: C: 1982: 335, paragraph 16, there is no reason to refer questions to the Court for a preliminary ruling of Justice. The President has therefore rightly taken the position that Article 16 of the GDPR does not give any right to supplement his opinion in the President's position.

The argument fails. 

10. [appellant under 1] further argues that the President wrongly decided not to hear the objection.

10.1. Pursuant to Article 7: 3, opening words and under b, of the Awb, an interested party may not be heard if the objection is manifestly unfounded. This provision may only be applied if there is no reasonable doubt in advance that the objections cannot lead to a different decision. The decision on this must be taken on the basis of what is stated in the notice of objection (see, for example, the judgment of the Division of 25 April 2018, ECLI: NL: RVS: 2018: 1365).

10.2. In his notice of objection, [appellant under 1] states that the concept of personal data must be interpreted more broadly than the Dean did in his decision of 24 May 2019. The President rightly states that there was no reasonable doubt that this objection could not lead to a different decision, because it is evident that the substantive assessment of the disciplinary complaint is not personal data.

The argument fails.

11. The appeal of [appellant under 1] against the decision of 21 June 2019 is unfounded.

Litigation costs

12. There is no reason for an order for costs.

Decision

The Administrative Law Division of the Council of State:

I. declares the appeal of [appellant under 1] inadmissible;

II. declares the appeal of the President of the Bar Association in the East Brabant district to be well-founded;

III. sets aside the decision of the East Brabant District Court of 6 February 2020 in case no. 19/1919;

IV. declares the appeal lodged with the court by [appellant 1] to be unfounded.

Laid down by mr. GTJM Jurgens, member of the single-judge chamber, in the presence of mr. H. Herweijer, registrar.

The member of the single judge is prevented from signing the decision.

The registrar is unable to sign the decision.

Released in public on November 4, 2020

640.