AN - 0000104/2021: Difference between revisions

Latest revision as of 15:19, 26 April 2023

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 annulled a multi-million 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

This decision is the result of an appeal against a Spanish DPA (AEPD) decision (a summary is available on GDPRhub) which fined Banco Bilbao Vizcaya Argentaria, SA (BBVA) a total of €5,000,000 for violating articles 6, 13 and 14 of the GDPR.

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

While rejecting some of the arguments of BBVA, the Court agreed that there is a relevant disconnection between the initial complaints and the final DPA decision.

The Court stressed that Article 57(1)(f) GDPR enables the DPA to investigate facts or the subject matter of the complaint. However, the Court considered that this would not cover the opening of a general procedure against the data protection policy itself. In its reasoning, it referred to one of its previous decisions from 23 April 2019 (Rec. 88/2017), in which it defined criteria for the application of the principles of the administrative sanctioning procedure within the scope of the DPA.

In the case at hand, the judges agreed that the DPA failed: (i) to examine the facts reported in the complaints; (ii) to make an assessment of the evidence in relation to those facts; and (iii) to link the facts to the data protection policy document. Rather, they found that the DPA opened a general investigation into the data protection policy of BBVA. In the Court's view, the DPA was bound by the facts of the data subject complaints. Therefore, the DPA is (at least initially) limited to investigate said facts or the "subject matter of the complaint".

The Court invoked the principle of legality, provided for in Article 25(1) of the Spanish Constitution, and referred to a Supreme Court (Tribunal Supremo) 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 Court states that the mere existence of a data protection policy does not correspond to any concrete violation as the GDPR, or other data protection legislation, does not punish potential infringements.

Further, the Court held that it was for the DPA to assess the evidence of the facts in order to duly respect the principle of presumption of innocence. In its ruling, it pointed out that in this case the DPA only stated the proven facts related to the complaints, but did not assess these facts in its final decision. If an individual violation is not proven, neither should the conclusion be reached that the data protection policy violated the rights of all customers.

For these reasons, the Court annulled the DPA 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. Judging from the content of the decision, such an option seems rather limited.

Further Resources

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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.

The resolutions that make up this database are disseminated for the purposes of knowledge and consultation of the decision criteria of the Courts, in compliance with the competence granted to the General Council of the Judiciary by art. 560.1.10º of the Organic Law of the Judiciary. The user of the database will be able to consult the documents as long as they do so for their private use. The use of the database for commercial purposes is not allowed, nor is the massive download of information. The reuse of this information for the preparation of databases or for commercial purposes must follow the procedure and conditions established by the CGPJ through its Judicial Documentation Center. Any action that contravenes the above indications may lead to the adoption of the appropriate legal measures.

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-|ECLI=
+|ECLI=ECLI:ES:AN:2022:6460
 |Original_Source_Name_1=Audiencia Nacional
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 |EU_Law_Link_2=
-|National_Law_Name_1=Article 63(1) Law 39/2015
+|National_Law_Name_1=
-|National_Law_Link_1=https://www.boe.es/buscar/pdf/2015/BOE-A-2015-10565-consolidado.pdf
+|National_Law_Link_1=
-|National_Law_Name_2=Articles 63(2) and 65(2)
+|National_Law_Name_2=
-|National_Law_Link_2=https://www.boe.es/buscar/pdf/2018/BOE-A-2018-16673-consolidado.pdf
+|National_Law_Link_2
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 |Party_Name_1=BBVA
-|Party_Link_1=
+|Party_Link_1=https://www.bbva.es/en/personas.html
-|Party_Name_2=
+|Party_Name_2=AEPD
-|Party_Link_2=
+|Party_Link_2=https://www.aepd.es/
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-A Spanish Court annuled a millionaire fine imposed on BBVA. It held that the DPA violated principles of the sanctioning procedure, as there was a disconnection between the original complaints and the investigation on the bank's privacy policy.
+The Spanish Court Audiencia Nacional annulled a multi-million 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 11 December 2020, the Spanish DPA jointly decided on 5 complaints made by different data subjects against BBVA (PS/00070/2019). In short, of the 5 complaints: 1 concerned the obligation to sign the privacy policy to unblock a bank account; 1 referred to the impossibility of rejecting data processing when agreeing with the privacy policy; another 3 were related to receiving advertising messages without prior consent (which the bank claimed to have collected through its privacy policy).
+This decision is the result of an appeal against a Spanish DPA ([[AEPD (Spain)|AEPD]]) decision (a summary is available on [[AEPD - PS/00070/2019|GDPRhub]]) which fined Banco Bilbao Vizcaya Argentaria, SA (BBVA) a total of €5,000,000 for violating articles [[Article 6 GDPR|6]], [[Article 13 GDPR|13]] and [[Article 14 GDPR|14 of the GDPR]].
-As seen, all the complaints referred to the bank's privacy, to which consumers were required to consent in order to contract banking and financial services. For this reason, the DPA understood that the violation was not limited to the illegal processing of data of the 5 data subjects. In its view, the privacy policy itself was illegal, violating the GDPR and, by extension, the bank's entire set of customers. Based on this understanding, it gathered the complaints for joint decision and instituted a sanctioning procedure with the purpose of investigating BBVA's privacy policy and assess how 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 ===
+While rejecting some of the arguments of BBVA, the Court agreed that there is a relevant disconnection between the initial complaints and the final DPA decision.
-At the end of the procedures, the DPA found a violation of Articles 12, 13 and 14 GDPR, due to the absence of clear information in the bank's privacy policy, and imposed a fine of €2.000.000. It also found a violation of Article 6 and imposed a second fine, of €3.000.000.  Finally, the DPA ordered BBVA to amend its privacy policy in order to ensure that each processing operation relies on a valid legal basis and to provide sufficient information to its customers. This was the first multimillion-euro fine imposed by the AEPD and received  and received a lot of attention from privacy professionals and those interested in data protection.
+The Court stressed that [[Article 57 GDPR#1f|Article 57(1)(f) GDPR]] enables the DPA to investigate facts or the subject matter of the complaint. However, the Court considered that this would not cover the opening of a general procedure against the data protection policy itself. In its reasoning, it referred to one of its previous decisions from 23 April 2019 (Rec. 88/2017), in which it defined criteria for the application of the principles of the administrative sanctioning procedure within the scope of the DPA.
-The bank filed a judicial appeal against the DPA decision. In summary, it alleged that the procedure initiated by the DPA violated its right of defense provided for in Law n. 39/2015. According to BBVA, the initiation of investigation represents a pre-judgment of guilt and violates the presumption of innocence, as the investigation order comes from a hierarchical superior, contaminating the action of the inspector responsible for the investigation.
+In the case at hand, the judges agreed that the DPA failed: (i) to examine the facts reported in the complaints; (ii) to make an assessment of the evidence in relation to those facts; and (iii) to link the facts to the data protection policy document. Rather, they found that the DPA opened a general investigation into the data protection policy of BBVA. In the Court's view, the DPA was bound by the facts of the data subject complaints. Therefore, the DPA is (at least initially) limited to investigate said facts or the "subject matter of the complaint".
-=== Holding ===
-The Spanish National Court highlighted that, according to Recital 129 GDPR, the powers of the supervisory authorities must be exercised in accordance with adequate procedural guarantees established in the Law of the Union and the Member States. Thus, it took Article 63(2) LOPDGDD as a starting point.  This article establishes that procedures carried out by the Spanish DPA shall be governed by the provisions of the GDPR and, secondarily, by the national norms on administrative procedures. The Court acknowledges that the DPA can launch an ex officio investigation to determine the existence of a violation as provided for by Article 65(2) of the same law.  However, Article 63(1) of Law 39/2015 (Administrative Procedures Law), also applicable pursuant to the aforementioned provision, requires that ex officio investigations be initiated upon agreement by the competent body.
-In the case at hand, the National Court saw a total disconnection between the object of the procedure initiated by the DPA and the complaints made by the data subjects. For the judges, the complaints related to concrete and individual violations, but, from that point on, the DPA initiated a sort of general review of BBVA's performance. In other words, they held that the allusion to the bank's privacy policy in relation to certain facts, empowers the DPA to investigate said facts or the "reason for the complaint" as indicated in article 57 (1)(f) GDPR. However, it does not allow the DPA to open a disciplinary proceeding against the controller as a result of the complaint.
+The Court invoked the principle of legality, provided for in Article 25(1) of the [https://www.boe.es/buscar/pdf/1978/BOE-A-1978-31229-consolidado.pdf Spanish Constitution], and referred to a [https://www.poderjudicial.es/search/AN/openDocument/e67b457a281d75be/20091008 Supreme Court (Tribunal Supremo) 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 Court states that the mere existence of a data protection policy does not correspond to any concrete violation as the GDPR, or other data protection legislation, does not punish potential infringements.
-The Court stressed 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". Similarly, the assessment of the evidence must be done in line with the principle of the presumption of innocence. Thus, the National Court understood that the DPA should be limited to proven facts. In its understanding, the facts do not lead to the conclusion that the mere existence of the privacy policy violated the GDPR. Finally, it reinforced that the GDPR does not provide for the sanctioning of potential violations and considered that 5 complaints in a universe of thousands of consumers is not representative of a generalized violation.
+Further, the Court held that it was for the DPA to assess the evidence of the facts in order to duly respect the principle of presumption of innocence. In its ruling, it pointed out that in this case the DPA only stated the proven facts related to the complaints, but did not assess these facts in its final decision. If an individual violation is not proven, neither should the conclusion be reached that the data protection policy violated the rights of all customers.
-Therefore, the Court annulled the DPA's decision holding that it was not in accordance with the law.
+For these reasons, the Court annulled the DPA decision holding that it was not in accordance with the law.
 == Comment ==
-''Share your comments here!''
+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 [https://boe.es/buscar/act.php?id=BOE-A-2018-16673&p=20230221&tn=1#a6-6 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. Judging from the content of the decision, such an option seems rather limited.
 == Further Resources ==