Raad van State - ECLI:NL:RVS:2023:4155

Raad van State - ECLI:NL:RVS:2023:4155
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 2(1) GDPR
Decided:	08.11.2023
Published:	08.11.2023
Parties:	Ministry of Finance
National Case Number/Name:	ECLI:NL:RVS:2023:4155
European Case Law Identifier:	ECLI:NL:RVS:2023:4155
Appeal from:
Appeal to:
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Netherlands’ highest administrative court, the Council of State, ruled that the data processing activities of the Fiscal Intelligence and Investigation Services (FIOD) were excluded from the material scope of the GDPR under Article 2(1)(d) GDPR.

English Summary

Facts

On 15 June 2019, the data subject made an access request under Article 15 GDPR to the Dutch Fiscal Intelligence and Investigation Service (FIOD). The FIOD is a government agency in the Netherlands responsible for investigating financial crimes, and is under the administration of the Ministry of Finance.

On 7 August 2019, the FIOD responded to the data subject, stating that no personal data which the GDPR applied to was being processed by them. Instead, the data subject’s data was processed under the Police Data Act, which offered no equivalent right of access as under the GDPR. The data subject challenged the FIOD’s response at a District Court.

In a judgment dated 22 November 2022, the District Court dismissed the data subject’s claims on the grounds that the FIOD’s activity’s fell under Article 2(1)(d) GDPR. This Article provides that the GDPR does not apply to the processing of personal data ‘by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.’ Consequently, the data subject had no right of access as the GDPR did not apply to the FIOD’s processing activities.

The data subject appealed the District Court’s decision to the Council of State (Raad van State), the Netherlands’ highest administrative court.

On 11 October 2023, the Council of State heard the data subject’s appeal. In the appeal, the data subject submitted that the District Court had erred in its reading of Article 2(1)(d) GDPR and should not have interpreted the Article as applying to the FIOD, as the FIOD was under the administration of the Ministry of Finance and was not a police body. As a result, the data subject argued that their data held by the FIOD fell under the GDPR’s material scope, and thus, they had a right of access to the data.

Holding

The Council of State held that the District Court had correctly interpreted the scope of Article 2(1)(d) GDPR, as a result they were correct to dismiss the data subject’s claims.

The Council of State held that the processing activities of the FIOD fell under Article 2(1)(d) GDPR, regardless of whether it is under the administration of the Ministry of Finance. The determining factor of whether a ‘competent authority’ falls under the scope of Article 2(1)(d) GDPR is its purpose. In this case, the FIOD is tasked with preventing criminal offences and thus its purpose is to maintain the rule of law. Consequently, their processing activities fell under Article 2(1)(d) GDPR and so, this excluded the application of the GDPR from the FIOD’s processing activities.

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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.

By decision dated August 7, 2019, the Minister, in response to [the appellant's] request for access to his personal data processed by the Fiscal Intelligence and Investigation Service, informed [the appellant] that no personal data were being processed to which the General Data Protection Regulation (EU) 2016/679 (hereinafter, the AVG) applied, but that personal data were being processed to which the Police Data Act applied. The Minister granted [the appellant] access to the police data. As a result, [appellant] believes that he was wrongly denied access to his personal data within the meaning of the AVG. In the ruling of July 19, 2023, ECLI:NL:RVS:2023:2771, the Division ruled on processing of personal data under the Police Data Act. This case deals only with data under the AVG. [appellant] argues that the District Court erred in considering that there is no reason to believe that the FIOD processed personal data within the meaning of the AVG of [appellant]. [appellant] argues that police data shared with third parties are no longer police data.
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Excerpt

202207250/1/A3.

Date of judgment: November 8, 2023

SECTION

ADMINISTRATIVE LAW

Ruling on the appeal of:

[appellant], residing in [place of residence],

appellant,

against the judgment of the Rotterdam District Court of November 22, 2022 in Case No. 19/6506 in the proceedings between:

[appellant]

and

the minister of finance.

Process

By decision dated August 7, 2019, in response to [appellant's] request for access to his personal data processed by the Fiscal Intelligence and Investigation Service ("FIOD"), the minister informed him that no personal data were being processed to which the General Data Protection Regulation (EU) 2016/679 ("the AVG") applied, but that personal data were being processed to which the Police Data Act applied.

By a decision dated November 27, 2019, the minister declared [appellant's] objection to the AVG portion of the said decision unfounded.

By judgment dated November 22, 2022, the district court dismissed the appeal filed by [appellant] against it as unfounded. This ruling is attached.

This ruling was appealed by [appellant].

The Division held a hearing on October 11, 2023, where [appellant], and the Minister of Finance, represented by Mr. Drs. I.A. Huppertz, appeared.

Considerations

Introduction

[Appellant] asked on June 15, 2019 whether the FIOD processes his personal data. In the August 7, 2019 decision, the Minister of Finance determined that no personal data are processed to which the AVG applies, but that personal data are processed to which the Police Data Act applies. The minister granted [appellant] access to the police data. As a result, [appellant] believes that he was wrongly denied access to his personal data within the meaning of the AVG. In the ruling of July 19, 2023, ECLI:NL:RVS:2023:2771, the Division ruled on processing of personal data under the Police Data Act. This case deals only with data as referred to in the AVG.

The appeal

2. [appellant] argues that the district court erred in considering that there is no reason to believe that the FIOD processed personal data within the meaning of the AVG of [appellant]. [appellant] argues that police data shared with third parties are no longer police data. Those data are then subject to the AVG and must therefore be presented to him for inspection.

2.1 Pursuant to Article 2(1)(d) of the AVG, this Regulation shall not apply to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties, including the protection against and prevention of threats to public security. The rejection of this personal data is subject to the Police Data Act (See, for example, the ruling of February 23, 2022, ECLI:NL:RVS:2022:574).

The district court correctly considered that any sharing of information with the Regional Information and Expertise Center (RIEC) takes place in the context of maintaining the rule of law and falls within the police task to which the Police Data Act applies. These data therefore remain police data. The court correctly concluded that these data are not covered by the AVG. Furthermore, [appellant] has not made it plausible that there are more data relating to him at the FIOD that are covered by the AVG. The argument does not succeed.

3. [appellant] argues that the court should have imposed a penalty payment on the Minister of Finance in the event that documents are later found to have been withheld after all.

3.1 This contention fails. The decision has not been found unlawful. To that extent, there is no basis for the imposition of a penalty payment. There is further no legal basis for the imposition of an order for incremental penalty payments for an uncertain future event as alleged by [appellant].

The appellant's] argument that the court's ruling does not comply with the principle of justification or due care has not been further substantiated. Therefore, that argument cannot lead to annulment of the judgment.

Exceeding reasonable time

At the hearing, [appellant] sought damages for exceeding the reasonable time limit for rendering a judgment, as referred to in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR").

5.1 The reasonable time for issuing a judgment is exceeded if the length of the total proceedings is too long. In principle, for cases consisting of a notice of objection and two courts, a total length of the proceedings not exceeding four years is reasonable. The time limit starts from the moment the objection is received by the administrative body. The handling of the objection may take up to six months, the handling of the appeal up to one and a half years, and the handling of the appeal up to two years. For every six months that the reasonable time limit is exceeded, whereby the total of the excess is rounded up, there is a right to compensation of € 500.00. See the Division's decisions of January 29, 2014, ECLI:NL:RVS:2014:188, and January 18, 2023, ECLI:NL:RVS:2023:176.

5.2 On September 10, 2019, the Minister of Finance received [appellant's] objection. In the decision dated November 27, 2019, the Minister ruled on the objection. [appellant] appealed the decision to the court on December 20, 2019. On November 22, 2022, the court ruled on that appeal. Today's ruling exceeded the reasonable period of four years by approximately two months. This excess is attributable in its entirety to the district court. The Division will therefore set damages of €500.00 and determine that these will be charged to the State (the Minister of Justice and Security).

Conclusion

6. The appeal is unfounded. The judgment of the District Court must be upheld. The Division will order the State (the Minister of Justice and Security) to pay compensation of € 500.00 for exceeding the reasonable period of time as referred to in Article 6 of the ECHR.

7. The Minister of Finance and the State (the Minister of Justice and Security) do not have to reimburse litigation costs.

Decision

The Administrative Law Division of the Council of State:

I. affirms the judgment under appeal;

II. orders the State of the Netherlands (the Minister of Justice and Security) to pay [appellant] compensation of €500.00.

Adopted by N. Verheij, member of the single-member chamber, in the presence of F.B. van der Maesen de Sombreff, Registrar.

w.g. Verheij

member of the single chamber

w.g. Van der Maesen de Sombreff

registrar

Pronounced publicly on November 8, 2023

190-1050