AN - 0000104/2021

AN - 0000104/2021
Court:	AN (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 57(1)(f) GDPR
Decided:	23.12.2022
Published:
Parties:	BBVA AEPD
National Case Number/Name:	0000104/2021
European Case Law Identifier:	ECLI:ES:AN:2022:6460
Appeal from:	AEPD (Spain) PS/00070/2019
Appeal to:	Unknown
Original Language(s):	Spanish
Original Source:	Audiencia Nacional (in Spanish)
Initial Contributor:	Bernardo Armentano

The Spanish Court Audiencia Nacional annuled a millionaire fine imposed on BBVA. It held that the DPA violated principles of the administrative sanctioning procedure as it went beyond the facts reported in the original complaints and carried out a general investigation on the bank's data protection policy.

English Summary

Facts

On 18 November 2020, the Spanish DPA (AEPD) jointly decided on five complaints made by different data subjects against Banco Bilbao Vizcaya Argentaria, SA (BBVA) (PS/00070/2019). In short, of the five complaints: One concerned the obligation to sign a data protection policy document to unblock a bank account; one referred to the validity of consent obtained through agreement with the data protection policy document; and other three were related to receiving advertising messages without consent (which the bank claimed to have obtained through the documents that the clients signed).

At the end of the procedures, the DPA found a violation of Article 6 GDPR and imposed a fine of €3,000,000. Due to the absence of clear information in the bank's data protection document, it also found a violation of Article 13 and 14 GDPR and imposed a fine of €2,000,000. In its decision, the DPA considered that although the complaints referred to specific and individualized behaviors in relation to certain natural persons, the violations transcended said complaints. It held that the data protection policy documents well as the consent obtained from its customers infringed the GDPR, affecting all customers. Therefore, it ordered BBVA to adapt its processing operations to the data protection legislation, to provide adequate information to its customers and to correct the way through which consent was being obtained.

The bank filed a judicial appeal against the DPA decision. Among other aspects, BBVA claimed that there was a total disconnection between the object of the procedure by the DPA and the complaints made by the data subjects. It argued that the DPA used specific and individual facts and complaints as an excuse to initiate a sort of general review of BBVA's practices and their data protection policy.

Holding

In handling the bank's main claim, the Court stressed that Article 57 (1)(f) GDPR enables DPAs to handle complaints lodged by data subjects and investigate, to the extent appropriate, the subject matter of the complaint. However, it does not allow the DPA to open a sanctioning proceeding against the controller as a result of the complaint. In its reasoning, it refers to a decision from 23 April 2019 (Rec. 88/2017), in which it defined criteria for the application of the principles of sanctioning administrative law within the scope of the DPAs.

In the case at hand, the judges agreed that the AEPD failed: a) to examine the facts reported in the complaints; b) to make an assessment of the evidence in relation to those facts; and c) to link the facts to the privacy policy document. Rather, they found that the AEPD used these facts to open a sort of general investigation on the privacy policy document. In the Court's view, the reference that the data subjects made to the bank's privacy policy related to concrete facts. Therefore, the DPA is only empowered to investigate said facts or the "subject matter of the complaint".

The Court also highlighted the relevance of the principle of legality, provided for in Article 25(1) of the Spanish Constitution, within the scope of sanctioning administrative procedures. It referred to a Supreme Court precedent according to which this principle "is translated into the imperative requirement of normative predetermination of illegal behaviors and the corresponding sanctions". In the case under analysis, the National Court understood that the mere existence of a privacy policy does not correspond to any concrete violation as the GDPR do not punish potential infringements. For this reason, it held that it was not possible to impose a fine on the controller on these grounds.

Finally, the Court held that the assessment of the evidence by the DPA must be carried out in compliance with the principle of the presumption of innocence, which limits its action to the facts proven in the course of the procedure. In its understanding, the facts do not lead to the conclusion that the privacy policy violated the rights of an entire universe of consumers, not least because a small number of complaints cannot be taken as representative of thousands of bank clients.

For these reasons, the Court annulled the DPA's decision holding that it was not in accordance with the law.

Comment

There is no discussion about the possibility of the DPA to investigate "ex officio". Spanish administrative law provides for this option. In "ex officio" procedures the DPA has a wider margin to define the scope of the procedure as when it is directly confronted with a complaint. Given that both possibilities exist (complaint based procedure and "ex officio" procedure - see Art. 64.2 LOPDGDD) it should have been brought up (or if it was brought up during the procedure, mentioned in the final decision) if it is permissible for the DPA to switch from a complaint based procedure to an "ex officio" procedure and, if yes, under which circumstances. For now the answers provided seem to be rather limited.

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English Machine Translation of the Decision

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

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