GHSHE - 200.297.497 01

GHSHE - 200.297.497_01
Court:	GHSHE (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 16 GDPR Article 17 GDPR Article 17(3)(b) GDPR Article 17(3)(c) GDPR Article 79 GDPR Article 5.3.5 Wmo
Decided:	13.01.2022
Published:	18.01.2022
Parties:	Veilig Thuis
National Case Number/Name:	200.297.497_01
European Case Law Identifier:	ECLI:NL:GHSHE:2022:80
Appeal from:	Rb. Zeeland-West-Brabant (Netherlands) C/02/381362 / HA RK 21-16
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rechtspraak.nl (in Dutch)
Initial Contributor:	Giel Ritzen

The Court of Appeal 's-Hertogenbosch rejected an erasure request from the mother of a data subject because her interests did not override the interests of the controller. However, it also considered that the mother did not have to pay the cost of proceedings since this would conflict with her right to an effective remedy pursuant to Article 79 GDPR.

English Summary

Facts

Controller is Stichting Veilig Thuis, a public organisation that deals with cases or suspicions of (suspected) domestic violence or child abuse. The data subject is a 11-year-old child that had been missing school several times. After Veilig Thuis received reports from the data subject’s school regarding truancy, it sent the mother an email, in which it stated (among other things) that “Veilig Thuis has made the agreement with the obligatory education officer that she will contact Veilig Thuis if the safety of the child is jeopardised again or continues to be so (e.g. when you do not accept the help that is offered)”. The mother did not agree with the wording and requested to rectify the dossier, pursuant to Article 16 GDPR, by removing the word “again”. Moreover, she requested to have the whole dossier erased, pursuant to Article 17 GDPR. Veilig Thuis rejected both requests, which led the mother to bring the matter before court.

The District Court of Zeeland-West-Brabant, however, rejected the appeal. Regarding the deletion request, it decided that it cannot be assumed that the interests of the child’s legal representative (the mother) and the child will always coincide. Moreover, it noted that Veilig Thuis had been involved with the family for some time, had concerns about the child’s school negligence. Thus, it found that Veilig Thuis had a reasonable chance to judge that the substantial interest of the child required that Veilig Thuis saved the data, and that this substantial interest of saving the data outweighed the interest of the mother to erase the data. Regarding the rectification request, the Court considered that the right to rectification is not meant to correct or remove impressions, opinions, research results and conclusions with which the person concerned does not agree. The District Court, however, did not order the mother to bear the cost of proceedings.

Both the mother and Veilig Thuis appealed this judgement: the mother on the grounds that the erasure request must be honoured, and Veilig Thuis on the grounds that they should not pay their own costs of proceeding since they won the case.

Holding

First, the Court of Appeal rejected the appeal. It considered that Veilig Thuis processes personal data and carries out a task in the public interest and for reasons of public health, as follows from the Dutch Social Support Act 2015 (Wmo). Therefore, Article 13(3)(b) and Article 17(3)(c) GDPR apply, and the deletion request must be assessed on basis of the Wmo. After the assessment, the Court confirmed District Court’s Decision, since it considered that the substantial interest of Veilig Thuis outweighed the interest of the mother.

Second, the Court of Appeal did not order the mother to pay the cost of proceedings made both in the first instance and in the appeal proceedings. It considered that the right to an effective remedy, pursuant to Article 79 GDPR, entails that “irrespective of the outcome of the substantive side of the appeal, if a difference of opinion regarding the implementation of the [GDPR] is actually at issue.” The Court considered the height of the costs (€ 5,856.00) and found that it was disproportionate to order the mother to pay the costs of proceedings because this would preclude her right to an effective remedy.

Comment

The costs consideration was an exceptional situation. They took into account the fact that the mother was an individual (and not a company) and that she was litigating "on behalf of her daughter" against an evidently unwanted registration of personal data. Also, "Veilig Thuis" wanted that the mother would have to bare these costs to prevent other parents from complaining or requesting the same. The Court then argued that this argument by Veilig Thuis implied that high costs for applicants did stand in the way of effective remedy. Lastly, it was relevant that Veilig Thuis performs a public task and legal remedies should be calculated within the budget (for which municipalities are responsible), and the Court therefore noted that this situation was very much like an administrative case, in which the applicant does not have to bare the costs of the procedure. Lastly, the Court also mentioned that Veilig Thuis often deals with people that are financially vulnerable.

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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.

COURT OF COURT ’s-HERTOGENBOSCH

Commercial Law Team

Verdict : January 13, 2022

Case number : 200.297.497/01

Case number first instance : C/02/381362 / HA RK 21-16

in the case of

[appellant] ,

residing at [residence] ,

appellant,

hereinafter referred to as: [appellant] ,

lawyer: mr. I. Roos in Amsterdam,

in return for

Safe Home Foundation [foundation],

established in [establishment] ,

defendant,

hereinafter referred to as: Safe Home,

lawyer: mr. E. Aerts in Tilburg.

1 The course of the procedure

1.1.

By notice of appeal with appendices (documents of the first instance: exhibits A to F), received at the registry of this court of appeal on July 21, 2021, [appellant] requested the court of appeal to cancel the decision of the court of Zeeland-West-Brabant dated April 21, 2021. destroy and, again in court, as far as possible provisionally enforceable – briefly stated – to order Safe Home to still grant the request as referred to in Article 17 of the General Data Protection Regulation (GDPR) – right to data erasure ("right to be forgotten") or to order Veilig Thuis to grant the request as referred to in Article 16 of the GDPR – the right to rectification – on pain of a periodic penalty payment and with a judgment from Veilig Thuis to pay the costs of the proceedings.

1.2.

Safe Home has, in its defence, filed at the registry of this court on:

September 30, 2021, in the appeal in principle requested the Court of Appeal to declare [appellant] inadmissible, or to dismiss [appellant]'s appeal as being unfounded, ordering [appellant] to pay the costs of the appeal in principle. In the cross-appeal, Veilig Thuis has requested that the present decision of the Zeeland-West-Brabant District Court be annulled only with regard to the compensation of the costs of the proceedings, that this decision be maintained or at least ratified for the rest, and that [appellant] to pay the costs of the proceedings of all authorities.

1.3.

By statement of defense in the cross-appeal, received at the registry of this court on

On November 8, 2021, [appellant] requested the Court of Appeal to declare Safe Home inadmissible in the cross-appeal she lodged, or at least to reject the ground of appeal put forward by her.

1.4.

The Court of Appeal has also taken cognizance of the contents of the hearing notes of the oral hearing in the first instance on 15 March 2021.

1.5.

The oral procedure took place on 10 November 2021. On that occasion, the following were heard:

-

[appellant] – via a Skype telephone connection –, assisted by mr. Roos and

-

[data protection officer], data protection officer, and [team manager], team manager, on behalf of Safe at Home, assisted by mr. Aerts.

1.6.

On December 23, 2021, both [appellant] and Veilig Thuis agreed to replace mr. Zweers due to personal circumstances - which have nothing to do with the case - by mr. De Moor, without there being a need for an oral hearing. Thus, the original ruling date can be met.

2 The assessment

2.1.

It's about the following.

-

[appellant] is the mother of [minor] – now eleven years old – and she has custody of her.

-

On 7 and 13 May 2019, Safe Home received a report from the school of [minor] and from the attendance officer in connection with school absenteeism of [minor]. Safe at Home has investigated these reports.

-

After the aforementioned reports had been closed by Safe Home, Safe Home sent [appellant] by e-mail dated 7 September 2020, among other things:

“(...) Safe at Home believes it is important that someone keeps an eye on [the minor]'s school attendance. In consultation with you, it has been agreed that Safe Home will transfer this to the attendance officer [compulsory education officer]. The transfer took place by telephone on September 7, 2020.

Safe Home has made an agreement with the attendance officer that she will contact Safe Home if safety is again at stake or continues to exist (for example, if you do not respond to the help offered).

Safe Home hereby closes the file. The above data is stored in our secure registration system (…)”

- On 7 October 2020, Mr. [Involved person 1], on behalf of [appellant], informed Safe Home that [appellant] did not agree with the wording of the email and requested that the file be rectified and destroyed. This request has expired

November 12, 2020 repeated by mr. [person involved 2].

-

By letter dated December 4, 2021, sent by e-mail to [person involved 1], Safe Home rejected the request.

-

By application, received at the registry of the District Court of Zeeland-West-Brabant on January 18, 2021, [appellant] requested that the data be deleted and rectified.

-

In the decision of 21 April 2021 (ECLI:NL:RBZWB:2021:1970), the Zeeland-West-Brabant District Court concluded with regard to the request for the removal of data that, contrary to what [appellant] argues, for the provisions in Article 5.3.5 paragraph 3 Social Support Act 2015 (hereinafter: Wmo) cannot be identified with her daughter [minor], with the result that Safe at Home may assess whether the substantial interest of [minor] requires that she retain the data (Article 5.3 .5 paragraph 2 Wmo).

After all, according to the court, it cannot be assumed that the interests of the legal representative and the child will always coincide with a request for the erasure of data. According to the court, this is not the case, for example, if Safe Home has received a report due to neglect by the legal representative himself. If, after closing this report, the legal representative could request that all data about that report be destroyed, without Safe Home being able to invoke the substantial interest of the child in the retention of this data, this would, according to the court, lead to a result that is not in line with the purport of the retention obligation in the Wmo for Safe Home, which is also aimed at safeguarding the interests (and safety) of the minor.

The court is of the opinion that Safe Home could reasonably have ruled that the substantial interest of [minor] requires that Safe Home retains the data and that this substantial interest in retaining the data also outweighs the interest of [appellant] in destroying the data. this information. According to the court, it appears from the data submitted by Veilig Thuis that Veilig Thuis has been involved with the family for some time and that there have been concerns about [the minor]'s absenteeism from school and the actions of [appellant] in this regard. There also seems to be a repeating pattern.

Also the request of [appellant] to adjust the passage "if the security again becomes or continues to exist" in the e-mail of

The court rejected September 7, 2020, because the court has established that [appellant] and Veilig Thuis have different views on what led to [minor]'s absenteeism from school – including the question of the extent to which [minor's] safety is at stake. - and the rectification or correction right under Article 16 GDPR is not intended to correct or delete impressions, opinions, research results and conclusions with which the data subject cannot agree.

Safe Home has explicitly requested the court to order [appellant] to pay the costs of these petition proceedings. However, the court saw no reason to issue an order for costs.

2.2.

In her notice of appeal, [appellant] put forward the following grounds of appeal – stated briefly and succinctly.

I. According to [appellant], the court erroneously considered that the request for annulment and rectification was only made by [appellant] as the legal representative of [minor]. The request was made by [appellant] on behalf of herself and by [appellant] in her capacity as legal representative of her daughter [minor]. According to [appellant], the court did not respond to [appellant's] request for annulment and rectification, so that the court's rejection thereof was wrongly left unmotivated.

II. [appellant] has not argued that she can be identified with her daughter [minor] for the purposes of Article 5.3.5 paragraph 3 Wmo. [appellant] has argued that if a request for destruction and rectification is made by a legal representative (on behalf of [minor]) on the basis of Article 5.3.5 paragraph 4 Wmo, this means for the provisions of Article 5.3.5 paragraph 2 Wmo that by the applicant is meant [minor], and not [appellant]/the legal representative. In the case of a request on behalf of [minor], it must therefore be substantiated what the interests of someone other than [minor] are.

Moreover, according to [appellant], the court does not deal with this specific case, which specifically concerns absenteeism from school that is already registered by school attendance officers (principle of subsidiarity). In that sense, too, according to [appellant], the substantial interest is not substantiated.

III. According to [appellant], the court provides no or insufficient reasons why retention of the data outweighs the interest of [appellant] itself in destroying this data, why retention of the data outweighs the interest of [minor] in destroying the data , why the registration of school absenteeism by the attendance officer to whom the transfer has been made is not satisfactory and why the court is of the opinion that it is in the interest of [minor] that the data be kept by Safe at Home.

IV. According to [appellant], the court has wrongly disregarded completely and failed to provide reasons why the file cannot be destroyed now that the attendance officer already has and monitors the file, as a result of which detention at Safe Home does not meet the necessity criterion, the principle of proportionality and the principle of subsidiarity. According to [appellant], Veilig Thuis has not met its burden of proof to sufficiently substantiate the substantial interest of [minor] in keeping the file by Veilig Thuis. According to [appellant], the mere assertion that there was a previous report about absenteeism is insufficient.

2.3.

On the occasion of the oral hearing on appeal, [appellant] added the following – stated briefly and succinctly. According to [appellant], the request for destruction is separate from the retention period in the Social Support Act. According to [appellant], a request for destruction must be honored, unless Safe at Home can prove that there is an interest in keeping the file. This means that [appellant] does not have to justify why the file must be destroyed, but that the burden of proof lies with Safe at Home. [Appellant] has further argued that Safe at Home cannot be regarded as 'another' in Article 5.3.5 paragraph 2 Wmo.

[appellant] believes that her daughter [minor] is protected if she is not confronted everywhere by the reports from Safe Home. According to [appellant], [minor] would like the file to be destroyed, because [minor] fears that she will be haunted her entire school career by the reports to Safe at Home. According to [appellant], [appellant] and [minor] have experienced that school employees are prejudiced.

2.4.

Safe Home has filed a motivated defense in the appeal in principle. That defense will, in so far as it is relevant on appeal, be discussed below. The incidental appeal instituted by Safe Home concerns the costs of the proceedings and will be discussed after the appeal in principle (under 2.7. et seq.).

In principle apple

2.5.

The Court of Appeal arrives at the following assessment, in which the Court of Appeal notes that the grievances lend themselves to joint handling.

2.5.1.

On 1 January 2015, the Advice and Reporting Center for Child Abuse and the Support Centers for Domestic Violence were merged into the Advice and Reporting Center for Domestic Violence and Child Abuse (AMHK), which has been given the name Safe at Home. Safe Home is an important link in both the youth chain and as part of the approach to domestic violence for adults.

2.5.2.

The right to erasure ("right to be forgotten") is based on Article 17 of the GDPR. There are a number of exceptions to the right to erasure. For example, Article 17(3)(b) and (c) of the GDPR provide that this right to erasure does not apply insofar as processing is necessary for the performance of a task carried out in the public interest and for reasons of public interest in the field of public health. Because Safe at Home has a legal obligation to process data and to perform a task of general interest assigned to it, the aforementioned exceptions apply (see Article 4.1.1 paragraph 2 and paragraph 3 Wmo and Article 5.1.6 Wmo). The legal framework of Safe at Home can be found in the Social Support Act 2015 (Wmo). [Appellant's] request for erasure of data must be assessed on the basis of the Social Support Act.

2.5.3.

On the basis of Article 5.3.4 paragraph 2 Wmo, Safe at Home stores the personal data that it has in its possession under this Act with regard to a data subject for a period of twenty years, starting from the date on which the last change to those personal data was recorded. or as much longer as is reasonably necessary in connection with the careful performance of its duties under this Act. This retention period has been changed – with effect from 1 January 2020 – from fifteen years to twenty years, in line with the periods that apply, among other things, in the Youth Act (see Staatsblad 2019-224, Article VI and Staatsblad 2019-284, Decree entering into force, any article paragraph 1).

2.5.4.

The right to destruction is stated in Article 5.3.5 Wmo:

“1. (…) and Veilig Thuis destroy the personal data that they have in their possession under this Act with regard to a data subject, within three months after a written request to that effect from the person to whom the personal data relate.

2. The first paragraph does not apply insofar as the request concerns personal data of which it can reasonably be assumed that the storage is of considerable importance to someone other than the applicant, and insofar as the provisions of or pursuant to the law preclude destruction.

3. The request will not be granted if it is made by someone who:

a. is younger than twelve years, or

b. is a minor and has reached the age of twelve and cannot be considered capable of a reasonable valuation of his interests in the matter.

4. In the cases referred to in the third paragraph, the request may be made by a legal representative.”

2.5.5.

Insofar as it concerns the request for annulment that [appellant] has made in her capacity as legal representative of [minor], [minor] is, according to [appellant], not a person other than the applicant as referred to in Article 5.3.5 paragraph 2 Wmo. The court sees this differently. If the legal representative exercises the right of destruction for the minor child, then the legal representative is the applicant. Article 5.3.5 paragraph 2 Wmo refers to a substantial interest of a “other than the applicant” and not a “other than the data subject”. Compare Article 5.3.2 paragraph 3 Wmo, on the basis of which, if the person concerned is younger than sixteen, information or inspection of or copies of the documents are provided to the legal representative, unless the interests of the person concerned dictate otherwise.

2.5.6.

In addition, the Explanatory Memorandum to the Youth Act – with which the Social Support Act is related – (Parliamentary Papers II 2012/13, 33684, 3, p. 251) (passages made in bold by the Court of Appeal):

“The proposed right of destruction is not absolute. In the first place, the AMHK is not required to destroy the data if it is reasonably likely that the retention of the data is of considerable importance to someone other than the applicant. This may include the youth care provider or the executor of the child protection measure or juvenile probation service or of the duties of an AMHK itself, against whom the applicant has initiated legal proceedings. The "other" could also be a family member of the young person or parent who, for whatever reason, has a significant interest in the retention of certain data. The AMHK must itself consider whether the other interest is significant. In doing so, he must point out to the applicant what the consequences of annulment are. If a parent or representative requests the destruction of data, the AMHK must keep the interests of the young person in mind. An applicant can go to the disputes body or the court if a request for destruction is not granted. (…)”

2.5.7.

In view of the foregoing, the Court of Appeal agrees with the Court that the provisions of Article 5.3.5 paragraphs 2 to 4 of the Wmo cannot reasonably be understood in any other way than that the legislator (i) (understandably) gives it to the legal representative of left children under the age of 12 to consider whether or not to request the destruction of personal data, and (ii) if the legal representative exercises this right on behalf of the minor child, this does not preclude that Safe at Home can invoke that the substantial interest of the child precludes the request being honoured.

The interests of the legal representative and the minor child will not always be the same in a request to destroy data. Otherwise, the legal representative, about whose actions Safe Home has received a report, could request that all personal data about that report be destroyed after the report has been closed, without Safe Home being able to invoke the substantial interest of the minor child. when storing this data. After all, the explanation that – the lawyer of – [appellant] gives to Article 5.3.5, paragraph 2 of the Wmo, means that the interests of the minor child may not be taken into account by Safe Home in a request for destruction. This is not in line with the purport of the retention obligation in the Wmo for Safe Home, which is also (and above all) aimed at safeguarding the interests (and safety) of the minor (see Article 4.1.1 Wmo et seq.).

2.5.8.

The foregoing leads to the conclusion that [minor] is different from the applicant, being [appellant] as legal representative of [minor], within the meaning of Article 5.3.5 paragraph 2 Wmo.

Insofar as [appellant] has argued that the interest of the minor can always be invoked against the legal representative in the event that 'another than the applicant' may be the child and that for that reason a request from the legal representative pursuant to Article 5.3 .5 paragraph 4 Wmo is a 'farce', that argument is rejected. If the retention of the data is not of significant importance to the minor child, Safe Home can destroy the data at the request of the legal representative. In other words, Safe at Home must have a valid reason for storing the data in the best interests of the child.

2.6.1.

The Court of Appeal must then answer the question of whether the retention of the file – as a result of the two notifications as at issue here – is of considerable importance to [minor] so that Safe Home does not have to destroy the personal data. In the opinion of the court, this question must be answered in the affirmative.

2.6.2.

In short, it concerns the absenteeism from school and the transfer to another school of [minor] by her mother [appellant]. According to Safe Home, the matter has a relevant history that dates back at least to 2016 – when the police reported concerns to Safe Home about [a minor] after her grandmother's death. According to Safe Home, there was also excessive absenteeism from school in 2016 at the initiative of [appellant] and in 2017 [the minor] was already transferred to another school once by [appellant]. According to Safe Home, there is therefore a repetitive (behavioural) pattern.

In the report of 5 March 2021 submitted by Safe Home by the behavioral scientist of Safe Home, it can be read that learning is an important part of a child's development and that attendance at school is therefore important for [minor] . According to the behavioral scientist, students with school absenteeism have an increased risk of unemployment, perform less well, are more likely to experience psychological problems and obstacles in their social-emotional development. It can also be read in this report that a number of important patterns are identified as possible causes for (structural) school absenteeism. An example of this, according to the behavioral scientist, is that school absenteeism seems to occur again in the event of a major event such as the (successive) death of [the minor]'s grandfather and grandmother. In addition, according to the behavioral scientist, a number of risk factors have been identified, such as not starting the strongly recommended care. According to the behavioral scientist, research shows that, in order to prevent school absenteeism, it is important to identify risk factors quickly and respond to them in the right way. According to the behavioral scientist, the information from both files enables Safe Home to gain insight into the existing risk factors.

2.6.3.

The considerable interest of 'the other than the applicant', in this case [minor], therefore lies in the fact that the present file must be and remain available in the event of a new care report of school absenteeism or other development threats (or a suspicion thereof) about [minor]. Safe at Home can then determine more quickly which follow-up assistance or intervention is appropriate to prevent (long-term) school absenteeism again. This protects [minor] against the increased risks as a result of absenteeism from school. It therefore does not matter whether there are no (longer) concerns about the safety of the child when the third party requests erasure. After all, these concerns may arise later. Moreover, [minor] herself must have the opportunity to take cognizance of her own file at a later age in order to retrieve information and data about her past and to read it again. The storage of the files is therefore of considerable importance for [minor].

For the time being, the Court of Appeal has left the question of whether Safe at Home can be regarded as 'another' in Article 5.3.5 paragraph 2 of the Wmo, now that the substantial interest of [minor] already clearly opposes destruction of the file. For the same reason, the request for annulment of [appellant] itself as the interested parent must be rejected.

2.6.4.

[Appellant] argued that [the minor] himself would like the file to be destroyed. On the occasion of the oral hearing on appeal, [appellant] stated that [minor] fears that she will be haunted her entire school career by the reports to Safe Home because information is exchanged – which is disputed by Safe Home – and school employees are biased. would be about [minor]. In this way, according to [appellant], [the minor] would never get a new start at a school. According to the Court of Appeal, this does not indicate that the interest of [the minor] is served by the destruction of the file. This is because there may also be interests at stake for [minor] of which she is not yet aware because of her young age. The Court of Appeal considers it important that in the event of a new report, Safe at Home can establish that there is no question of an incident, but of a repeating pattern as the cause of structural absenteeism from school. In the opinion of the Court of Appeal, this interest outweighs the interest of [the minor] in destroying her file in order to prevent her school from being or becoming aware of the contents of the file and the reports to Safe Home. This is all the more the case now that Safe Home has argued with reasons that information has been or is being exchanged with the school of [minor] (see also ground 2.6.5. below). On the occasion of the oral hearing on appeal, Veilig Thuis indicated that a repeating pattern can be an important indicator that the child is in an unsafe situation, and this also follows from the aforementioned report by the behavioral scientist. The fact that [minor] is highly gifted according to [appellant] does not change this. This still does not exclude the fact that [the minor] has a considerable interest in keeping the file at Safe at Home.

2.6.5.

By determining the substantial interest of the minor [minor], the requirements of proportionality and subsidiarity have already been met. The Court of Appeal is therefore of the opinion that the purpose to be served by storing the reports – an optimal guarantee of the safety of the child and the ability to provide adequate assistance if necessary – cannot be realized in a way that is less detrimental to [the minor]. and the infringement of the interests of [minor] is therefore not disproportionate to this aim. The fact that the attendance officer already has the file is irrelevant in view of the (own) statutory task that Safe at Home performs and that is separate from the duties of the attendance officer. The mere fact that a compulsory education officer is charged with keeping records and registering school absenteeism does not mean that [minor] no longer has a significant interest in keeping her file. After all, it follows from the foregoing that in the event of a new report of school absenteeism, whether or not by the attendance officer, Safe Home has access to its file so that adequate help can be provided or organized quickly. Furthermore, on the occasion of the oral hearing on appeal, Veilig Thuis argued that the reports are in fact 'dormant' reports and that the file is only consulted if a new report is made. According to Safe Home, [underage] would not be pursued by archiving the file. The Court of Appeal also takes into account that (the employees) of Safe Home are subject to a duty of confidentiality with regard to information that they have in their possession by virtue of their position.

In the present case, in addition to [minor], the father of [minor] - irrespective of the fact that his situation and view in the present situation is currently unknown - may have a significant interest in not destroying the data. Both the interests of [minor] – as has already been explained above – and that of the father require – each for himself – that the reports as made remain available at least for a number of years in the event that the – unexpected – still receive a message.

Under these circumstances, the Court of Appeal is of the opinion that the requirements of proportionality and subsidiarity have been met and that the interest of Safe Home (and therefore the interest of [minor] and possibly also the interest of [minor]'s father) now outweighs than the interest of [minor] in destroying the file.

That [minor] will already reach the age of twelve in [month] 2022, the age at which she is in principle considered capable of giving a well-considered view on the reports, and that a different outcome of the balancing of interests can then be discussed. there is currently no reason to proceed with deletion. Moreover, in view of Article 5.3.5 paragraph 3 under b Wmo, it will still have to be assessed whether [minor], although she has reached the age of twelve, can be considered capable of a reasonable valuation of her interests in this regard.

2.6.6.

The foregoing means that the grounds of appeal of [appellant] with regard to the request to destroy the data – which are mutually related – do not succeed and the appeal in principle must be dismissed.

It is true that [appellant] has alternatively requested rectification, but there are no grounds for appeal against grounds 3.20. up to and including 3.24. in which the court has ruled on the request to amend the data. For that reason, the court is not required to rule on this. Unnecessarily, the court considers that the right of rectification pursuant to Article 16 of the GDPR is not intended to correct or remove impressions, opinions, research results and conclusions with which the person concerned cannot agree. In this case, the request for rectification does relate to this, now that [appellant] and Veilig Thuis differ in opinion about whether [the minor]'s safety was at stake.

The occasional apple

2.7.

In the cross-appeal, the court finds as follows.

2.7.1.

Safe Home has argued that [appellant] as the unsuccessful party

- which is currently the case, in view of the foregoing - must be ordered to pay the costs of the proceedings, both in the first instance and in the principal and in the cross-appeal. According to her, there is no reason to deviate from the main rule that an order for costs is imposed on the losing party. At the hearing in the first instance, Safe Home also argued in support of its request for an order for costs of the proceedings that Safe Home is inundated with requests such as the present one.

2.7.2.

The Court of Appeal is of the opinion that the request for an order for costs of the proceedings of [appellant] in both the first instance and on appeal, as the unsuccessful party, should be omitted in this case.

In general terms, the following should first of all be justified.

2.7.2.1. In its decision of 15 July 2021 (ECLI:NL:GHSHE:2021:2252), the Court of Appeal briefly substantiated the choice not to impose any costs orders on the person(s) involved in AVG disputes in principle as follows.

“3.8. (…) Referring to previous rulings of this court (ECLI:NL:GHSHE:2018:363, ECLI:NL:GHSHE:2020:2536 and ECLI:NL:GHSHE:2021:1301; in which rulings the court has sought a connection with CJEU 27 September 2017 in Puškár, C-73/16, ECLI:EU:C:2017:725) the Court of Appeal is also of the opinion in the present case that [the bank]'s request for an order for costs of the proceedings against [the person concerned] in appeal, if the unsuccessful party must not be appealed. The nature of the procedure - as covered by Article 289 DCCP and as further specified in the key of what the Court of Justice has considered according to the aforementioned decisions of this Court of 2018, 2020 and 2021 and in view of the text and purpose of Article 79 GDPR - entails this in principle'.

2.7.2.2. After all, in the context of the ECJ on Puskar (C-73/16, ECLI:EU:C:2017:725), it has been considered:

“75 As the Advocate General also noted in points 68 and 69 of her Opinion with regard to the costs of a prior administrative complaint, while Member States are in principle free to pay appropriate compensation for bringing an appeal before an administrative authority but it must not be at a level such as to impede the exercise of the right to an effective remedy, guaranteed by Article 47 of the Charter.[vet, GHSHE] It must be borne in mind that that charge costs arise in addition to the costs of the legal remedy.”

2.7.2.3. Finally, in part 76 of the above-mentioned Puškár judgment (C-73/16, ECLI:EU:C:2017:725), the ECJ held:

“In particular, the prior exhaustion of available administrative remedies should not significantly delay the judicial process, should suspend the limitation period of the rights concerned and should not entail disproportionate costs [vet, GHSHE]. ”

2.7.3.

This assessment under the applicability of Directive 95/46, as succeeded by the AVG on 25 May 2018, applies in full to the AVG, as is also apparent from recital 9 to the AVG and also from the said judgment itself, now the Court of Justice bases its decision on the scope of Article 47 HGEU in relation to Article 22 of Directive 95/46. This article has been seamlessly followed by article 79 GDPR. Pursuant to Article 79 GDPR, the data subject has the right to an effective remedy if he considers that his rights under the GDPR have been infringed.

2.7.4.

The Court of Justice has reiterated the above considerations in the judgment of 1 February 2018, ECLI:NL:GHSHE:2018:363 (as in a general sense reiterated in full in the judgment from 2020 referred to below insofar as the requests are based on the GDPR concerns) should be considered that in the context of requests and appeals related to the Personal Data Protection Act (hereinafter also Wbp, as implemented in implementation of Directive 95/46) there is, in principle, a reason for the applicant/natural person to exercise his or her rights in makes use of the framework of the Wbp/Directive and in that context initiates legal proceedings, even if he is unsuccessful, not to be ordered to pay the legal costs of the addressed processor of his personal data. This applies in any case, irrespective of the outcome of the substantive side of the appeal, if there is (or has been) a difference of opinion regarding the implementation of the Wbp (also read: AVG or related law).

2.7.5.

According to the CJEU in Puškár, disproportionate costs should not be incurred in an administrative appeal before a court proceeding. In this ruling, the CJEU has not ruled on an order to pay costs in civil proceedings between a data subject and a processor.

2.7.6.

However, the Court of Appeal has now also taken cognizance of a decision of the so-called EFTA Court (or EFTA Court) of 10 December 2020 on, among other things, Articles 77 and 78 AVG (in English GDPR) and the possibility (read undesirability) to pay costs. carried by the data subject (= the data subject), being Joined Cases E-11/19 and E-12/19, concerning Adpublisher AG, in which proceedings were also recorded or comments were made by EU Member States Austria and Ireland as well as by the European Commission.

2.7.6.1. In the context of the ruling in question, the EVA Court considers, among other things (passages made in bold by the Court):

“56 By its second question, the referring body essentially asks whether the free of charge nature of the complaint procedure under Article 77 of the GDPR extends to subsequent proceedings before appellate bodies or has an impact on the liability of the data subject to be ordered to pay costs.

57 Article 77 of the GDPR sets out the right to lodge a complaint with a supervisory authority. Article 57(3) provides that the tasks of the supervisory authority, including the handling of complaints, are to be free of charge for the data subject. In order to handle complaints lodged, Article 58(1) confers extensive investigative powers on the supervisory authority. If the supervisory authority considers that requirements of the GDPR have not been complied with, Article 58(2) lays down the various corrective powers the supervisory authority may adopt (compare the judgment in Facebook Ireland and Schrems, C-311/18, EU: C:2020:559, paragraph 111).

58 While Article 57(3) of the GDPR is limited to the performance of the tasks of the supervisory authority, no other provision of the GDPR specifically addresses a legal costs scheme. In particular, costs are not regulated in relation to proceedings under Article 78(1) of the GDPR. The Court notes that Article 58(4) and Article 78 of the GDPR give expression to the right to an effective judicial remedy. Under the principle of procedural autonomy, the implementation of the judicial remedy is left to the national legal order, provided that principles of equivalence and effectiveness are respected.

59 However, Article 78(3) of the GDPR provides that proceedings against a supervisory authority shall be brought before the courts of the EEA State where the supervisory authority is established. This provision presupposes that the supervisory authority assumes the position of a defendant, defending its own decision when that decision is challenged. However, in the absence of any specific provisions to that effect, Article 78(3) cannot be interpreted as precluding the possibility that other entities, e.g.

complainants, may also be parties to such proceedings under the procedural law of the EEA State in question. In the present case, as observed by the Commission and as is apparent from the request, by lodging their complaints with the supervisory authority under Article 77, the complainants were accorded the status of defendants when the controller lodged an appeal against the decision of the supervisory authority under Article 78. It also appears that the status of the complainants before the referring body is one of defending the decision of the supervisory authority, including issues which were not within the scope of their complaints.

60 It is important to note that, under point (h) of Article 57(1) of the GDPR, the supervisory authority has the power to engage in investigations of its own initiative. This provides that the supervisory authority may, in relation to its examination of the complaint, decide on different claims or subject-matter in comparison with those raised by the data subject in his or her complaint before the supervisory authority. The effectiveness of the complaint procedure requires that the supervisory authority is not limited in its investigation by how the complainant has framed the relevant points of law in his or her complaint.

61 In a situation in which the data subject does not initiate proceedings under Article 78(1) of the GDPR, but nevertheless is accorded the status of a defendant in those proceedings, the potential order to reimburse costs would have an effect equivalent to charging fees for the tasks of a supervisory authority.

62 Such an obligation to reimburse costs is not in line with the right to lodge a complaint free of charge under Article 77(1) and 57(3) of the GDPR and moreover runs contrary to the purpose of the GDPR to create a strong enforcement mechanism and enhance legal and practical certainty for data subjects (see recital 7 of the GDPR). The prospect of costs reimbursement constitutes a disincentive to lodge a complaint before a supervisory authority. Thus, the Court finds that such a set-up undermines the scope of protection guaranteed by the provisions of the GDPR referred to above, and the exercise of rights conferred by EEA law would be rendered excessively difficult, in breach of those provisions of the GDPR .

63 Article 3 EEA requires EEA States to take all measures necessary to guarantee the application and effectiveness of EEA law. It is inherent in the objectives of the EEA Agreement that national courts are bound, as far as possible, to interpret national law in conformity with EEA law. Accordingly, they must, as far as possible, apply the methods of interpretation recognized by national law in order to achieve the result sought by the relevant rule of EEA law (see Case E-25/13 Gunnar Engilbertsson v Íslandsbanki hf. [2014] EFTA Ct. Rep. 524, paragraph 159 and case law cited).

64 In light of the foregoing, the Court finds that the answer to the second question must be that it follows from Articles 77(1) and 57(3) of the GDPR that where a data subject becomes a party to proceedings under Article 78( 1) of the GDPR as a result of a data controller appealing against a supervisory authority's decision, and where national law imposes this status on a data subject automatically, the data subject may not be made responsible for any costs incurred in relation to those proceedings. ”

2.7.6.2. In short, after finding that the GDPR does not provide anything in a general sense with regard to legal costs – except for Article 57, paragraph 3 of the GDPR – which is not at issue here – the EFTA Court, in the context of the problem submitted to it, has charged the costs of reimbursement of costs. the person concerned in this case, or at least admits this as her interpretation of the relevant GDPR provisions, because otherwise there would be 'discouragement to submit complaints' ('discentive, ground 62) and 'a serious hindering effect' (”excessively difficult'”, ground 62), which conflicts with the provisions of the GDPR.

2.7.7.

On December 17, 2020 (ECLI:Nl:GHARL:2020:10564) the Arnhem-Leeuwarden Court of Appeal, Leeuwarden location, in an AVG case about the costs of the proceedings, after taking cognizance of a decision of this Court of Appeal in which the same principle regarding the award of costs has been formulated as in the ruling from 2018 (GHSHE 6 August 2020, ECLI:NL:GHSHE:2020:2536), – in short – considered that from the judgment of the ECJ it can at most be inferred that civil proceedings may not entail excessive costs for the person concerned bring. Subsequently, the Arnhem-Leeuwarden Court of Appeal, Leeuwarden location, saw no reason to deviate from the usual rules regarding adjudication of costs in contradictory cases.

In the case it settled, the Arnhem-Leeuwarden Court of Appeal, Leeuwarden location, subsequently ordered an order to pay the costs of the proceedings at the expense of the applicant and on behalf of the processor, which amounted to €2,908 alone for the appeal procedure.

In a ruling of 12 January 2021, the Arnhem-Leeuwarden Court, Leeuwarden location, repeated this line (ECLI:NL:GHARL:2021:243) and the other two courts also took the same view (GHDHA 8 September 2020, ECLI:NL: GHDHA:2020:1569 and GHAMS March 3, 2020, ECLI:NL:GHAMS:2020:648). This trend has not changed when the court looks at the AVG rulings that were published after the ruling of this court of April 2021, insofar as it concerns an order to pay the costs of the unsuccessful applicant/person involved.

2.7.8.

In this case, Veilig Thuis first argued in substantiation of the order to pay the costs of the proceedings that [appellant] could also have followed the administrative law route, to which (indeed) no costs are attached. The Court of Appeal assumes that Safe Home is referring to the route of Article 36 UAVG, but in that case no review will take place by an independent judge as referred to in Article 47 HGEU (and Article 6 ECHR). In short, there is no question of an equivalent route and therefore no argument can be found herein for an apparent argument that [appellant] would have looked up the costs himself.

2.7.9.

Safe Home also referred to a conclusion apparently taken by AG Drijber on 28 May 2021 (reference 20/02950) in which – according to the statement by Safe Home – it was ultimately ruled that the system of costs order in AVG matters for the account of the requesting person concerned. does not conflict with the principle of effectiveness, because the fixed compensation in accordance with the (Dutch) liquidation rate is relatively low.

However, the Court of Appeal – and also [appellant] – has not yet been able to consult this conclusion as such in full or even in part viasrecht.nl, while Veilig Thuis has opted not to transfer the conclusion – as in its possession – as a production or appendix. lay. The Court of Appeal was therefore also unable to determine to what extent the judgment of the EFTA Court as mentioned above is involved, nor in what kind of AVG case the question of the costs of the proceedings as dealt with in that opinion has arisen and decided.

2.7.10.

If the Court of Appeal were to adopt this latter approach - in the context of advancing insight, inter alia after having taken cognizance of the aforementioned judgments of the Arnhem-Leeuwarden Court of Appeal, Leeuwarden location and the other Courts - in the present case, and [appellant] if the ordered the unsuccessful party to pay the costs of the proceedings in both instances, this would amount to a minimum amount of € 5,856. This concerns arithmetically the sum of the court fee levied on the side of Safe Home at this court

(€772) and the salary costs of Safe Home according to liquidation rate II (application of undetermined value) in the principal appeal (€2,228) and in the incidental appeal (€1,114) in addition to the salary costs in the first instance (two points of € 543,--, therefore a large amount

€1,086) plus the court fee owed by Veilig Thuis in the first instance of €656 (at that time).

In addition, [appellant] in any event (possibly) already bears her own legal costs, including €656, in court fees owed by her in first instance and on appeal. As such, this court fee does not constitute an obstacle to access to a court as referred to in Article 47 HGEU (see GHSHE 18 January 2018, ECLI:NL:GHSHE:2018:166).

2.7.11.

Contrary to the Arnhem-Leeuwarden Court of Appeal, Leeuwarden location in the cases submitted to it as discussed, and contrary to apparently the advice of AG Drijber, the Court of Appeal is of the opinion in the present case that the size of the risk of this order for costs incurred by a private individual ( if [appellant] ) is in general excessively high and in principle does preclude the right to an effective remedy, guaranteed by Article 79 of the GDPR. The Court of Appeal also takes into account that the present case concerns an objection by [appellant] (whether or not on behalf of her daughter) against an evidently unsolicited and undesirable registration. This is despite the fact that Veilig Thuis – see its statement during the hearing in the first instance – wants the court costs order in part to prevent or curb a 'flood' of complaints or requests for removal, thereby (at least implicitly) acknowledging that of the court costs order. in accordance with the liquidation rate does indeed have a serious impeding effect.

Moreover, in view of the statutory task of Safe at Home, this case is not so much a case of contradiction, but rather a case in which the parties involved justifiably demand attention for their own interests or the interests they are expected to serve.

This is because the following must be taken into account.

2.7.12.

From chapter 4 of the WMO, namely article 4.1.1. It appears that every municipality must ensure a Safe Home organization. The municipality is free in the chosen organization, so it may choose to assign the task to a part of its own organization - in which case administrative law will serve as a route for legal protection - or to a legal person set up by it, such as a foundation (as in this case the case) – in which case legal protection must be sought through the civil line (Article 35 UAVG) – provided that the requirements of Articles 4.2.1., 4.2.2. and 4.2.3 WMO are met.
In short, a government task is in fact being fulfilled here (evidently in the public interest) that happens to be carried out by a foundation, without those who subsequently have to deal with it have anything to choose from. The relevant municipality is also responsible for the costs and can therefore provide a budget item to cover the costs of proceedings (or the hiring of its own lawyer).

2.7.13.

This is a situation that is very close to an administrative law setting. In administrative proceedings, the person concerned does not have to fear an order to pay costs and only a limited court fee is due. As is often the case with BKR registration, (the daughter of) [appellant] did not request registration, but she does run a substantial financial risk if she wants to oppose it (whether or not on behalf of her daughter). The Court considers this to be inappropriate and undesirable, also from a social point of view: it could just be that the socially weak and financially vulnerable will (could) be confronted with Safe Home.

In view of the foregoing, the Court of Appeal does not consider there to be a "real contradiction", but there is every reason to order an order to pay costs in principle and in this case, now that no contraindication (such as abuse of the procedure offered) has been found, it has not been dispensed with on the basis of Article 289 DCCP. to leave.

2.7.14.

The above means that the nature of the proceedings means that an order to pay costs (as also decided by the court of first instance) should not be imposed.

2.7.15.

The cross-appeal therefore fails. In both instances, the Court of Appeal will refrain from ordering the costs of the proceedings and will (also) uphold the decision with regard to the compensation of the costs of the proceedings.

2.8.

The decision against which appeal will be affirmed.

3 The decision

The Council:

in principal and incidental appeal:

confirms the decision against which appeal is made;

turns down the more or else requested.

This decision was made by Mrs. N.W.M. van den Heuvel, R.R.M. the Moor and

T. van der Valk and was pronounced in public on January 13, 2022.