Hoge Raad - ECLI:NL:PHR:2023:935

Hoge Raad - ECLI:NL:PHR:2023:935
Court:	Hoge Raad (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 5(1)(c) GDPR Article 6 ECHR Art. 22 Rv
Decided:	20.10.2023
Published:	22.11.2023
Parties:	[plaintiff] BV PME Investment Services BV (hereinafter: 'PME')
National Case Number/Name:	ECLI:NL:PHR:2023:935
European Case Law Identifier:	ECLI:NL:PHR:2023:935
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	De Rechtspraak (in Dutch)
Initial Contributor:	Fahim.H.I.

The Supreme Court of the Netherlands dismissed an appeal, in which the defendant wrongly relied on the GDPR to redact documents. In this judgment, the Supreme Court clarified the relationship between the GDPR and domestic evidentiary rules in civil proceedings. The Court noted that that the GDPR does not contain an absolute ban on sharing personal data in civil proceedings as that would be in conflict with the right to a fair trial under Article 6 ECHR.

English Summary

Facts

The data subject, an asset management professional, undertook an agreement with PME Investment Services. The agreement was that the data subject would take over a housing project mediated by PME, and in return PME would be awarded a fee and a minor percentage of the subsequent sale of the apartments. However, the data subject failed to uphold the agreement. As a result, on 9 May 2018, PME filed a suit against the data subject.

After a first decision, on 27 January 2021, the case was brought to the attention of the Court of Appeal of Den Haag. In those proceedings, in an attempt to avoid liability, the data subject relied on the GDPR to anonymise and redact deeds which were key to the proceedings, on the basis of Article 5(1)(c) GDPR (data minimisation).

In a judgment dated 4 October 2022, the Court of Appeal of Den Haag ignored the anonymised deeds and ruled in favour of PME and made a compensation order based on calculations which did not take into account the anonymised deeds. As a result, the compensation order was significantly higher than it would have been if the anonymised deeds were taken into account.

On 3 January 2023, the data subject filed an appeal against the Court of Appeal's decision to the Supreme Court of the Netherlands.

Holding

The Supreme Court of the Netherlands dismissed the appeal. In their ruling, the Supreme Court clarified the relationship between the GDPR and domestic evidentiary rules in civil proceedings.

The Court held that it was possible to give evidence in a manner compliant with the GDPR and confirmed the CJEU case of Norra Stockholm Bygg AB (Case C‑268/21). In that case, the CJEU held that the GDPR does not contain an absolute ban on sharing personal data in civil proceedings as that would be in conflict with the right to a fair trial in Article 6 ECHR. However, in doing so, the national court must take into account the principle of proportionality and balance the right to a fair trial and Article 5(1)(c) GDPR (data minimisation).

The CJEU concluded that it is for the national courts to determine whether the provision of personal data is sufficient and pertinent to achieve the objective pursued by the applicable provisions of national law and whether that objective could not be achieved by using less intrusive evidence in order to protect the personal data of data subjects.

The Supreme Court relied on the CJEU's case to determine the issue at hand and found that the plaintiff's anonymisation of the deeds were not proportionate and veered on an abuse of rights. As a result, their purported reliance on the principle of data minimisation (Article 5(1)(c) GDPR) was unfounded. The plaintiff had the opportunity to provide the relevant evidence in a GDPR-compliant manner for the calculation of compensation, and chose not to. Furthermore, the Court of Appeal had a legal basis in Dutch Law to estimate the compensation without the relevant evidence that the plaintiff decided to not provide. Accordingly, the Supreme Court dismissed the appeal.

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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.

ECLI:NL:PHR:2023:935
1.1
1.2
1.3
1.4
1.5
[plaintiff] B.V. (hereinafter: '[plaintiff]')
in return for
PME Investment Services B.V. (hereinafter: 'PME')
PME installed a housing project for [plaintiff] that [plaintiff] obtained from a third party
to take over. [plaintiff] has taken over the project. The housing complex has now been completed and
[Plaintiff] has already sold a total of 233 homes to private individuals and investors
sold. There was an agreement between PME and [plaintiff] that PME was entitled to summary compensation
said, a percentage compensation on the sales value of the homes. Because [plaintiff] has this
agreement has not been fulfilled, PME has converted the obligation to comply into an obligation to
alternative compensation.
In cassation it only concerns the estimate of PME's damages (in connection with the
determine the extent of the (replacement) compensation due to it). At first
PME has based its budget partly on average sales prices, calculated on the basis of
the sales prices determined by it through publicly available information. [plaintiff] has
in contrast, it is sufficient to state that PME's calculation was incorrect, without its own
to provide a substantiation for the calculation. The court found this challenge by [plaintiff]
insufficient and has estimated the damage based on PME data.
On appeal, [plaintiff] substantiated this on the basis of arithmetic overviews
underlying pieces of all 233 homes, assuming that on the basis of the realized
sales prices and the actual ratio between private buyers (brokerage of 1.5%) and
investors (brokerage of 1%) the damage must be estimated at a lower amount. A part of the
[plaintiff] has blacked out information in the underlying documents for privacy reasons. According to
PME, the blacked out parts are important to verify the data. The court has
ruled that [plaintiff] has not sufficiently substantiated her defense against PME's budget
and (therefore) has not made any adjustment to the amount of damage estimated by the court. In
[plaintiff] challenges this judgment in cassation.
The following facts can be assumed in cassation:1
PME runs a company that is involved in, among other things, mediation in trade, rental or
rental of real estate. [person involved 1] is (indirectly) a director of PME.
[plaintiff] is engaged in acquiring, alienating, exploiting and managing
asset values. [person involved 2] (hereinafter: '[person concerned 2]') is (indirectly) a director of
[plaintiff].
Around the end of 2015/beginning of 2016, PME completed the Strijp-S housing project in Eindhoven (hereinafter:
'the project') applied to [plaintiff] for takeover by [plaintiff] from B&V Strijp B.V.
At the beginning of 2016, the parties reached agreements about the installation and sale of the project
made. In a letter from PME to [plaintiff] dated March 7, 20162 (hereinafter: 'the agreement letter') it is
following included:
“Dear [person involved 2],
By means of this letter we confirm the agreement made regarding the takeover of
the development offer of the Strijp-S housing complex in Eindhoven. It's agreed
1 Facts
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
that [plaintiff] directly to PME Investment Services B.V. the relevant ones
application fee of € 150,000 excl. VAT will be paid.
The compensation will be paid in 2 equal installments
1: upon signing or taking over of the project in question
2: at the start of construction of the project.
We also hereby record that PME Investment Services B.V. the project concerned exclusively
may sell for a fee of 1% excluding VAT of the sales price, to be paid at
notarial transport. If [plaintiff] decides to retain ownership of the project,
delivery of the project to PME Investment Services B.V. compensation will be paid
0.5% excl. VAT of the forecast sales value of the project. If [plaintiff]
project decide to sell off apartments, then claims PME Investment
Services BV to carry out this activity for a fee of 1.5% excluding VAT
the sales value per apartment, to be paid each time during notarial transport.”
In 2016 and 2018, PME sent [plaintiff] invoices for the first and second installments of
the application fee of € 150,000 stated in the agreement letter.
In a letter dated January 25, 20183, PME wrote the following to [plaintiff]:
“I hereby refer to our made and signed agreement as recorded on March 7
2016, regarding the Strijp - S project in Eindhoven. (a copy is attached for the record
added).
We understand that the development of the project is now well advanced. About our
In order to be able to properly prepare and execute a sales order, we would like to discuss the
marketing strategy. It may be useful to make an appointment with the project leader at short notice, so that we can:
can exchange our ideas.”
On February 28, 20184, [person involved 3], legal counsel for [plaintiff] (hereinafter: '[person involved 3]'),
wrote to PME, in short, that [person involved 2] disputes that [plaintiff] has
agreed to the agreements as stated in the second part of the agreement letter (it
sales law with associated brokerage fees).
On March 1, 2018, [plaintiff] made a partial payment of € 36,000 on the first installment of
the application fee.
In a letter dated March 19, 20185, [person involved 3] proposed on behalf of [plaintiff] that [plaintiff]
payment of € 150,000 and that PME confirms that the second part of the
agreement letter has not been agreed between the parties and therefore no implementation thereof
will be given.
On March 26, 20186, (the lawyer of) PME urged [plaintiff] to comply with its
obligations in the agreement letter.
On May 9, 2018, PME issued the summons that initiated these proceedings. On
the same day [plaintiff] received the second part of the first partial payment of the
application fee has been paid in full.
By letter dated August 9, 20187, PME submitted a conversion statement as referred to in art. 6:87 BW
issued and its claim for compliance with the agreements in the agreement letter converted into a
claim for alternative compensation.
The entire project has now been sold and delivered by [plaintiff]. The first apartments of
the project was sold and delivered in May 2019 and the last one in December 2020. [plaintiff] has
engaged another real estate agent for the sale.
2 Process flow
First instance
2.1
2.2
2.3
2.4
2.5
PME summoned [plaintiff] on May 9, 2018 (see also paragraph 1.12 above) and, after
amendments to the claim, requested that the District Court of The Hague (hereinafter: 'the court') be enforceable at
stock to declare verdict:
I. declares that an agreement has been concluded between PME and [plaintiff], which is
recorded in the agreement letter;
II. declares that [plaintiff] on the basis of the decision issued on August 9, 2018
conversion statement, replacement compensation is owed to PME;
III. orders [plaintiff] to pay PME primarily:
1) an amount of € 1,394,330 (brokerages due under the exclusive
sales law), plus statutory commercial interest from August 10, 2018;
2) an amount of € 2,694.57 or € 2,410.37 (remaining application fee), to be increased
with statutory commercial interest from August 10, 2018; and alternatively:
the damage to be compensated under the conversion statement, plus statutory damages
commercial interest, to be determined in detail by state;
IV. [plaintiff] (alternatively) orders, in short, to share the sales information of
the apartments within the project, including information about the method of
sales (to private individuals or an investor or information about owning property yourself,
information about the agreed sales value and information about the notarial dates
transportation);
V. orders [plaintiff] to pay extrajudicial costs of € 6,775; and
VI. orders [plaintiff] to pay the costs of these proceedings, including the attachment costs, plus
additional costs and statutory interest on those additional costs.
In an interim judgment dated May 29, 20198, the court ruled that an expert report
(handwriting examination) is appropriate. PME has been instructed to prove the signature
under the appointment letter from [person involved 2].
By interim judgment of July 17, 2019,9 restored by interim judgment of October 30, 2019,10 a
expert report ordered. Witnesses were then heard.
In an interim judgment dated April 15, 202011, the court based on the expert report and
the witness statements ruled that it has been proven for the time being that the parties have complied with the
have made agreements in the appointment letter. [plaintiff] has been allowed to deliver
of evidence to the contrary with regard to the exclusive right of sale and the associated rights
brokerage agreements. Witnesses were then heard again.
On January 27, 2021, the court issued a final judgment (hereinafter: 'the final judgment').12
in the final judgment the court ruled:
- declares that an agreement has been concluded between PME and [plaintiff], which is
recorded in the agreement letter;
- ruled that [plaintiff] substituted on the basis of the conversion statement
compensation is owed to PME;
- [plaintiff] immediately ordered to pay PME of:
1) € 858,556 (see paragraph 2.13 below), plus the statutory
commercial interest rate as of August 10, 2018;
2) € 2,694.57, plus the statutory commercial interest with effect from August 10
2018;
- [plaintiff] immediately ordered to pay PME € 6,081
extrajudicial collection costs;
- [plaintiff] provisionally ordered to pay the legal costs (including attachment costs), in
plus statutory interest and additional costs.
The more or differently advanced (compare the subsidiary claim in paragraph 2.1 under III-IV
2.6
2.7
2.23.
2.8
above) was rejected in the final judgment. This also applies to a counterclaim
[plaintiff] (on an alleged undue excess interest paid on the application fee)
which is no longer important in the remainder of the procedure.
To the estimate of the damage, and by extension, the amount to be paid by [plaintiff] to PME
amount of compensatory damages, include the following considerations of the
court basis.
The court first showed how PME paid the amount it claimed
has substantiated alternative compensation and what [plaintiff] has argued against it:
“2.22. After changing the requirement, PME is now primarily claiming an amount in replacement
compensation of € 1,394,330, plus statutory commercial interest from 10
August 2018 (the day after the date of the conversion statement). She estimates the damage on that basis
on the one hand, the different brokerage percentages mentioned in the agreement letter and on the other
the now partly known sales data of the project, after deduction of the sales costs
that she should have made. She has broken down her budget by number of apartments
per building block based on the sales prices of the apartments that are publicly known and
has taken into account sales to private individuals or to investors (in connection with
a difference in brokerage). (…) She has saved an amount of €800 per apartment
own sales costs deducted. (…)
[Plaintiff] has disputed the amount of the damages claimed. To this end she has –
In summary – stated the following:
- PME's estimates differ significantly in parts from those provided by [plaintiff]
actual sales prices achieved;
- (…)
- PME wrongly makes a distinction in brokerage between private individuals and investors;
(…)
- PME has failed to include its saved sales costs per object in the calculation.
[Plaintiff] has submitted her own calculation as exhibit 10 in which she calculates the damage suffered by PME
budgeted at an amount of € 186,678, including VAT.”
The court then considered that it was estimating the damage on the basis of the available data
data from PME and has deemed the dispute thereof by [plaintiff] insufficiently substantiated
passed:
“2.24. Below, the court proceeds to estimate PME's damages on the basis of:
Available data. It passes [plaintiff's] dispute that PME is incorrect
sales prices have been determined. Where PME for the principles it uses – in
in any case for the apartments – has referred to public sales information and with the
available data has in any case presented insightful calculations and estimates,
[plaintiff] has sufficed with the statement that that information is incorrect, while she is actually the party
who can provide clarity about this. Her own calculations and the prices she enters into her
She has not provided any substantiation in the Excel sheet (exhibit 10) calculations.
She has argued that it concerns confidential information containing personal data,
which means that it does not want to bring the data into question. She believes that an independent
chartered accountant should be engaged to report to the court on the
financial principles for damage calculation. What confidential data would it be?
However, she did not provide a concrete explanation. She had personal data in purchase agreements
illegible, as PME rightly notes. It is not clear why and why
the sales prices of the objects in the project must be treated confidentially. [plaintiff]
did not explain that either. And if that is the case, [plaintiff] could have become a chartered accountant herself
to bring the relevant information into question in a manner acceptable to it
in order to substantiate its position. It was, in short, simply possible for
[plaintiff] for her challenge to the correctness of the principles in PME's calculation
to give concrete substance. Instead, she is pushing for the next round
procedural steps, with its suggestion of a person to be appointed by the court
2.9
2.10
2.11
2.12
chartered accountant or by an offer to bring the data into question.
The court ignores this. [Plaintiff] had the opportunity to do this, but did not
taken."
The court has rejected the second part of the agreement letter (the right of sale and associated
commissions) explained as follows:
“2.27. The relevant passage in the agreement letter also shows that PME rightly states that it has a
brokerage of 1.5% could be charged in the case of individual sales of apartments. What
What [plaintiff] means by her comment that branching out normally means rental is -
what else - incomprehensible, now that the text specifically states “single-out as sales
apartments”. This cannot be understood other than as the individual sale of
apartments. Although this does not necessarily have to be to private individuals, PME does
sales to private individuals are covered by this brokerage agreement is in line with the text and [plaintiff]
does not provide any concrete indications as to why the parties would have intended this differently. PME
is in its calculations in the event of the sale of several apartments at the same time to one
investor assumed the percentage of 1%. [Plaintiff] did not object to this.”
About the sales costs that PME has saved by not complying with the second part of
the agreement letter, the court considered the following:
“2.29. Finally, PME has - contrary to what [claimant] argues - included in its damage estimate the
its saved sales costs are included. She calculated it at €800 per apartment.
[Plaintiff] has not disputed this amount.”
In the absence of a sufficiently substantiated challenge by [plaintiff] to the correctness of the
sales prices used by PME, the court uses those data in its budget
PME exited. For each building block this amounts to the following:
“2.31. (…)
(…)
Building block Benjamin
This building block consists of 29 homes. Its average sales price based on 16
known sales prices are € 474,969. The sales price of the entire building block is then:
estimated at €13,774,094. All homes have been sold to private individuals, resulting in a brokerage fee
of 1.5% would have applied. That is a total (rounded) of € 206,611.
Building block Maria
This building block consists of 26 homes, of which 11 sales prices are known. Based on that
the average sales price is €542,727.
Of these homes, 11 have been sold to private individuals, which would result in a brokerage fee
delivered for (rounded) € 89,550. The remaining 15 have been sold to an investor. The brokerage fee
that total at 1% would have been €81,409. This amounts to a total of €170,959.
Building block Frits
This building block consists of 89 homes, of which PME has identified 54 sales prices, with
a total amount of € 22,890,375. She has the details of the other homes on the website
Nieuwbouw-Eindhoven.nl used price indication. This amounts to 33 homes in total
at € 11,046,775. The homes have been sold individually. This would therefore have a brokerage fee
delivered for €509,057.
Building block Frederik
This building block consists of 91 homes and has been sold in its entirety to an investor. The
sales price is unknown. PME states uncontested that this building block is largely comparable
is with the Frits building block and she therefore has the average sales price of this building block
used, being € 390,082. This leads to a total sum of € 35,497,479, which is a
brokerage (1%) of € 354,975.”
Finally, the court estimated PME's damage on the basis of the following
2.36.
2.13
2.14
2.15
2.16
2.17
calculation:
“Total missed brokerage excluding VAT and minus sales costs
Based on the foregoing, the court estimates PME's damage at an amount of:
Brokerage Benjamin € 206,611
brokerage Maria € 170,959
Brokerage Frits € 509,057
Brokerage Frederik € 354,975
commercial space brokerage € 13,165
-------------------------------------------------- ------------- +
total brokerage € 1,048,156
deduction of sales costs € 189,600
-------------------------------------------------- ------------- -
damage brokerage € 858,556.”
In a recovery judgment dated September 29, 202113, the court noted that in the
final judgment in the sum of the missed brokerage there is an obvious calculation error that
lends itself to easy repair. The total amount of brokerage missed by PME counts
reality does not amount to € 1,048,156 but to € 1,254,767, so that the replacement
compensation is not € 858,556 but € 1,065,167.14 The court has para. 2.36. and
the operative part of the final judgment is thus restored.
Appeal
By summons dated April 19, 2021, [plaintiff] was brought before the Court of Appeal in The Hague (hereinafter: 'the court').
appealed from the final judgment (restored by judgment of September 29, 2021) and the
previous (interim and restorative) judgments.
After an oral hearing, of which a report was drawn up, the court decided on 4
judgment delivered in October 2022.15 The court has ruled that the appeal by [plaintiff]
only succeeds insofar as it relates to the interest owed; the court is wrong
increase of the amounts to be paid with statutory commercial interest ex art. 6:119a BW in
place of statutory interest ex art. 6:119 BW assigned. For the rest, the final verdict (if
improved by judgment of September 29, 2021) confirmed.
In cassation, only the rejection by the court of appeals 1 and 2 is important. Grievance 1
stated, in short, that the court made an incorrect assessment of some of the homes
brokerage percentage has been applied, because in reality more homes are sold to investors
(for which a brokerage percentage of 1% instead of 1.5% applies) would have been sold by then
which the court, following PME, assumed. Ground for appeal 2 stated, in short, that the
The court wrongly used average sales prices in part instead of all
actual sales prices achieved. Grievances 1 and 2 together would lead to a
reduction of € 277,732 on the amount awarded by the court in replacement
compensation. The court assessed grounds 1 and 2 jointly in para. 6.3-6.9.
The court first discussed the obligation to state and the burden of proof and stated what PME
and [plaintiff] have stated about the extent of the damage:
“6.3 In principle, it is up to PME to state and prove the extent of its damage.
PME already has a detailed damage estimate per building block during the court proceedings
(four building blocks in total) submitted. She estimated the damage based on the formula
sales price x brokerage -/- hypothetical costs (this formula is not stated as such
for discussion). It used publicly available sales information from
real estate agents' websites and the Funda.nl website. Because PME does not actually own all apartments
realized sales price, it based its budget partly on the
average sales price, calculated on the basis of the outdated sales prices. PME
has brought both its damage estimate and the underlying sales information into question.
6.4
2.18
2.19
6.7
[Plaintiff] complains that the court wrongly agreed with this budget. According to
[Plaintiff] PME's damage estimate incorrectly contains an estimated element and is as follows
as a result, much too high. [plaintiff] states that the damage must be estimated on the basis of the
actual sales prices achieved and the actual ratio between private
buyers and investors.”
The court did not agree with [plaintiff] on this point:
“6.5 (…) In itself, [plaintiff] rightly argues that it was the original intention of the parties
that PME would receive a brokerage fee on the actual realized sales value,
assuming the capacity of the actual buyer (private individual or investor), at least
based on the question of whether there would be a separate sale (usually to a private individual:
brokerage 1.5%) or from the sale of several homes at the same time (normally to one
(institutional) investor: brokerage fee 1%). If PME had received the sales order and
[claimant] would therefore not have been attributable to shortcomings, PME would always be informed itself
have been from these actual data. However, it didn't happen that way. After all, the problem is
precisely that PME did not receive the sales order. PME has given in the
did what it could under the circumstances and submitted a well-substantiated budget.
In response to this reasoned estimate (estimate) of the sales value, [plaintiff] has to
little was put forward, although that could have been expected of her, now the relevant one
data are in its domain. (…)”
The court is of the opinion that [plaintiff] compared to the reasoned budget (estimate) of
PME has put forward too little, with reference to the debate in the first instance, as
explained as follows:
“6.6 At first instance, [plaintiff] only submitted one A-4 sheet (excel sheet)
without substantiation. The court - understandably - did not find this sufficient. According to the
The court had provided PME with insightful calculations based on the available data
made estimates and in return [plaintiff] wrongly limited itself to the statement that
that information was incorrect, without substantiating her own figures, even though
it was precisely the party that could provide clarity on this. With regard to the defense of
[plaintiff] that she could not provide the underlying data due to confidentiality
the court considered that [plaintiff] had not specified which
confidential data it would involve. Finally, the court ruled that if the
sales prices should already be treated confidentially, [plaintiff] herself
a chartered accountant could have been called in to provide the relevant information for her
acceptable manner in order to substantiate its defense.
[plaintiff] has not yet done the latter but has a large number of deeds and
agreements (on a USB) are brought into question (plus associated arithmetic
overviews) and has offered to also submit these documents in paper form if available
there is a need for it. However, [plaintiff] has blacked out some of the data. PME points
points out that those blacked out parts are important for the verification of a number of points, too
know (i) whether all submitted purchase and construction agreements are actually valid
concluded and signed and at what sales prices were delivered, (ii) whether there is a loose contract
sales to private individuals (or small BVs) or sales of large parts of the project to
an (institutional) investor and (iii) or all existing agreements with regard to the
commercial spaces are shared (because plot indications are missing and out of the shared
information cannot be derived from which part or surface of the commercial space
has been sold). At the appeal hearing, [plaintiff] noted that based on the amount
The sales prices show whether it is a private buyer or an investor. According to
[plaintiff] at very high prices there is a cluster of homes and the buyer is therefore one
investor and in the other cases it concerns a private individual, [plaintiff] states this to investors
has always been sold in clusters. Whatever the case (the statement has been disputed), that is not the end of it
all objections mentioned have been met. It was further argued on behalf of [plaintiff] that the
deeds of delivery can also be verified in the land registry, but PME rightly objected
2.20
2.21
2.22
3.1
that it doesn't work that way and that if it were all clear from the land registry, [plaintiff] would do this herself
should have stated and substantiated in the statement of appeal, so that this could be discussed at the hearing
can be debated. PME believes that [plaintiff] is wrongly aiming for even more
procedural actions, while [plaintiff] could and should have done more herself and the procedure
due to the unjustified challenge by [plaintiff] of the existence of the allegations made by PME
agreements have already taken an unnecessarily long time.”
[Plaintiff's] reliance on the General Data Protection Regulation16 (hereinafter: 'the GDPR')
in the opinion of the court does not make sense:
“6.8 [plaintiff] stated at the hearing that due to the GDPR she did not have all the original documents
wants to give control to PME. After consultation during a suspension, [plaintiff] offered that PME
a chartered accountant of your choice (at [plaintiff's] expense) can inspect all physical deeds
with [plaintiff]. However, PME wanted to have all physical deeds (temporarily) available to it
to check others. PME has further argued – in the opinion of the court
rightly – that [plaintiff] had already raised the GDPR objection in the first instance and that of
[Plaintiff] could have been expected to substantiate this defense and provide it in concrete terms
state what she believes is and is not allowed under the GDPR, so that there was a discussion about this
can be fed. Indeed, [plaintiff] has not, at least insufficiently substantiated
why she couldn't do more than she did. This may include the self
engaging a chartered accountant, to entering into consultation at a much earlier stage
temporary release or inspection (e.g. at PME's own office or the lawyer), and requesting it
of permission to buyers (in any case to investors) to have access to the relevant information
Discuss."
Based on the foregoing, the court came to the following conclusion:
“6.9 The conclusion is that [plaintiff]'s defense against PME's budget is insufficient
substantiated and that no correction will be made on this point. To further
evidence or an expert report will therefore not be received. By the way, it has in it
bringing all physical deeds, as [plaintiff] has offered, makes no sense, because the
objections are not so much (at least not only) directed at the method of provision (digital
or in paper form), but especially against the omission of essential information. From the
statements on appeal, it became clear that [plaintiff] was not prepared to provide all the documents
to be brought into the dispute in an uncensored form, not to mention that such an offer is too
would be late. For the record, the court also points out that the above-mentioned offer ter
hearing to have a chartered accountant look at the deeds, the court understands, was done in
in the context of a possible arrangement. However, the parties have not reached a settlement, but a judgment
asked. Insofar as the offer already served to strengthen [plaintiff's] defense of a
to provide further substantiation, this is contrary to a
good process.”
Cassation appeal
[plaintiff] filed a timely cassation appeal against the
judgment of 4 October 2022 (hereinafter: 'the contested judgment'). PME did not appear in cassation;
default has been entered against her. [plaintiff] has explained her positions in writing.
The appeal in cassation is formulated under 6 of the process introduction. The cassation appeal catches
under 6.1 with an overview of the core of the case in which the complaints are also briefly discussed
summarized (marginals 7.-11.), followed under 6.2 by a presentation of the facts and the
process sequence (marginals 12.-18.), which does not include individual complaints. It
The appeal in cassation is then elaborated in three parts. Part 1, about the method of
damage estimate, and part 2, about passing proof offers, do not have any
subparts. Part 3, about the obligation to state privacy-related objections and
3 Discussion of the appeal in cassation
Introduction
3.2
3.3
3.4
art. 22 Rv, is divided into two subparts. The parts are always listed below
6.3.1, 6.4.1 and 6.5.1 respectively of the process introduction, introduced with a representation of the
contested legal considerations, which do not contain any complaints. The actual complaints are
included under 6.3.2 (part 1, in marginal numbers 22.-24.), 6.4.2 (part 2, in
marginal numbers 26.-32.), 6.5.2 (subpart 3.1, in marginal numbers 34.-39.) and 6.5.3 (subpart
3.2, in margins 40.-42.) of the process introduction. I will briefly summarize the complaints below
again after which a discussion follows.17
Part 1: method of damage estimation
Part 1 is directed against para. 6.3-6.9 of the contested judgment. The part takes up to
premise that the court has estimated PME's damage in an abstract manner. According to the part it has
the court disregarded this as a starting point for calculating the scope of a statutory right
obligation to pay compensation serves to ensure that the injured party is restored to the best possible condition
in which he would have been if the event causing the damage had occurred
failed to materialize. According to the section, this means that the damage must in principle be calculated
taking into account all circumstances of the specific case and only in special cases
circumstances, on practical grounds and for reasons of fairness, of one or more
circumstances of the case can be abstracted. The part complains that the court has
failed to recognize that in this case there are no grounds for making an exception
starting point for a concrete damage estimate. According to the section, the court has neither
made clear why, in his opinion, there would be a special case in which op
an abstract damage estimate is permissible for practical reasons or for reasons of fairness. In
to this extent, the court's decision is insufficiently substantiated, according to the section. The part
further complains that the court's judgment is incorrect or incomprehensible and insufficient
is motivated, because in this case it was possible to specifically estimate the damage.
The part is based on a wrong reading of the contested judgment and therefore fails
lack of factual basis. After all, the court does not have practical considerations when estimating damages
grounds or for reasons of fairness, of one or more circumstances of the case
abstracted. Now that the court has not based itself on an abstract damage estimate, its judgment can be entered
to the extent that they are not incorrect or incomprehensible and insufficiently substantiated, the grounds are dismissed
to the complaints of this section. I explain what the court stated in para. 6.3-6.9 did.
The court applied art. 6:97 BW, which stipulates that the judge must
damage is estimated in the manner that is most consistent with its nature and that the
extent of damage can be estimated if it cannot be determined accurately.18 If
starting point for calculating the extent of a legal obligation
compensation, the injured party must be put in as good a condition as possible
in which he would have been if the event causing the damage had occurred
was not forthcoming.19 It follows that the damage must in principle be calculated taking into account
of all circumstances of the specific case, including specific lost revenues and
concrete costs incurred.20 In the damage estimate, a comparison is then made between
the actual situation (with the event causing the damage) and the hypothetical situation
(without the event causing the damage). The power difference that has occurred between
These two situations are the extent of the (pecuniary) damage.21 [Plaintiff's] failure to comply
of the second part of the agreement letter, here is the damage causing event
PME's claim for damages against [plaintiff] is based.22 In the actual
situation in which [plaintiff] has not complied with the second part of the agreement letter and the
has given a sales order to another broker (see paragraph 1.14 above).
PME no brokerage of 1% or 1.5% of the sales value of the apartments
received and saved costs associated with the sale of the apartments. In the
hypothetical situation, in which [plaintiff] would be the second part of the agreement letter
fulfilled and had given the sales order to PME, PME did receive the relevant brokerage fee
received and also incurred sales costs. The power difference between the actual
situation and the hypothetical situation can therefore be calculated by the sum of: the
sales price multiplied by the applicable brokerage percentage of 1% or 1.5%
3.5
3.6
3.7
for each apartment sold and delivered, and the sum of the sales costs
deduct all apartments sold and delivered. The court has this in para. 6.3
expressed in the formula “sales price x brokerage -/- hypothetical costs” which formula
“as such, by the way, [is] not up for discussion”. The section also does not challenge this formula
discussion, but is directed against the interpretation that the court has given to the first part of
this formula (“sales price x brokerage”).
A relevant feature is that in this case there is a conversion statement as
referred to in art. 6:87 of the Dutch Civil Code (see paragraph 1.13 above), whereby the obligation to comply with
the agreements in the appointment letter (it only concerns the second part of it, see
paragraph 1.5 above) has been converted into an obligation to pay alternative compensation. Your
In a judgment of 26 April 2002, the Council considered, among other things, the following about damage assessment
with this type of compensation:
“3.4.2 (…) In the present case it concerns an agreement involving […]
committed to performing a specific performance in connection with the restoration,
in return for which […] et al. have committed themselves to paying a sum of money. […] et al. claim
the present procedure replaces compensation as referred to in art. 6:87 BW, due to
partial non-fulfillment by […] of its obligation and they claim the damages suffered by them
damage to the amount of the repair costs, even though they have not had the defects repaired
and sold the house in question some years later. In such a case the damage must be
are estimated on the basis of the capital reduction that occurred at the time of the non-compliance
the person entitled to the performance has suffered in relation to the situation in which he would have been placed
upon proper fulfillment of the obligation, and the subsequent sale of the house is one
circumstance to which in the context of a claim for alternative compensation such as the
the present has no significance.”23
It can be deduced from this that [plaintiff] is obliged to compensate damages equal to the
value of the performance in the performance of which it has failed. In the
doctrine, it is noted in this context that an objective valuation method is tailored to:
the replacement value in economic terms is obvious.24 The idea then is
to enable the creditor to obtain the missed performance from a third party.25 In many cases
that objective value will be relatively easy to determine. In a case like the present
However, that objective value will have to be constructed itself on the basis of the
case comparison as formulated by your Council. That's essentially what happened here. With the
After all, the formula “sales price x brokerage -/- hypothetical costs” becomes the value of the performance
in the compliance of which [plaintiff] has failed. The
reduction in assets suffered by PME at the time of [plaintiff's] non-compliance with the second
part of the agreement letter has suffered compared to the situation in which PME would have found itself
proper compliance with that agreement by [plaintiff] is inherently uncertain. Whatever the case may be
So reasoned, the doctrine of abstract damages when applying art. 6:87
BW not (quickly) visible. From the legal consideration of Uw quoted in the previous marginal issue
Council, it appears that certain circumstances should not be taken into account
damage calculation ex art. 6:87 BW, but that is correct, as Hijma states in his note below the judgment
has noted, not a matter of abstract damage assessment, but a consequence of “the
limited field of vision” of damage estimate ex art. 6:87 BW.26
I would like to note the following about the second part of the formula (“-/- hypothetical costs”). The
The manner in which the court estimated those costs is not discussed in cassation. PME
has estimated the sales costs at €800 per apartment (based on a breakdown by
type of costs (marketing, public relations, overhead and other costs and labor) and a
explanation by post), so for a total of € 186,400 for all 233 sold and delivered
apartments. At first instance, [plaintiff] did not dispute this amount (see marginal no
2.10 above). The court adopted this (see marginal 2.12).27 On appeal
[plaintiff] submits ground 5, in which she briefly stated that €800 is far too low an amount
is against this judgment. The court rejected this complaint in para. 6.15-6.20. This part of it
judgment is not challenged in cassation.
3.8
3.9
3.10
3.11
Nowadays, the judge is in principle bound in estimating the extent of the damage
to the 'normal' rules of evidence.28 This means that the obligation to state and the burden of proof with regard to
the existence and extent of the damage rests with the injured party, in this case with PME. It
the court has this in legal ground. 6.3 has also been taken as a starting point: “It is in principle up to PME to determine and
to prove the extent of her damage.” In this context, no strict requirements may be imposed on PME
be stated.29 The court has stated in para. 6.5 considered that PME (ample) complied with its obligations in this regard
has fulfilled the obligation to state: “PME has done what it should in the given circumstances
could and has submitted a well-substantiated budget” (see also para. 6.3 in which it is stated
referred to as “a detailed damage estimate per building block”). The court was involved in this
that PME itself did not comply with the second part of the agreement letter due to [plaintiff's] failure to comply with the second part of the agreement letter
is aware of all actual data (realized sales prices and status of
buyers). The court subsequently stated in para. 6.5 considered that [plaintiff] the budget of PME
has disputed with insufficient substantiation: “Against this reasoned budget (estimate) of the
[plaintiff] did not put forward enough sales value, although that could have been expected of her
now that the data in question is in its domain.” With abstract damage assessment this has
everything has nothing to do with it.30 The court presented the concrete lost revenues and costs
of all relevant circumstances known after factual investigation as best as possible
estimates.31 That is what the court did.
Whichever way we look at it, the court's interpretation of the damage calculation
given to the formula “sales price x brokerage “-/- hypothetical costs” is based on the key
art. 6:97 BW nor in the key of art. 6:87 BW on an abstract damage calculation.
It was the court's turn to determine the extent of the damage stated by PME on the basis of the
to investigate the formula “sales price x brokerage -/- hypothetical costs”. It should be clear
that the court is not completely dependent on the information that the parties provide on their own initiative
put forward.32 The court could question the parties in this regard and furthermore order that
they consult modestly, and it is obvious that he would have done the latter if necessary.33
The question that arises in this case is when such an order is necessary, in the sense that it
court not only had the authority to do so, but also in the context of the damage assessment
would be obliged to exercise that discretionary power. One like that
obligation is not readily accepted. That the court does not use that power in this case
has made, partly in view of the party debate on this point (see paragraphs 6.6-6.7) and also the
procedural attitude of [plaintiff] to which PME has pointed out (see paragraph 6.7, conclusion), not incomprehensible. It
Without the relevant data from [plaintiff], the court was already able to determine PME's damage in concrete terms
to guess. [Plaintiff] could also be expected to do her best to ensure that the
to provide relevant facts (in this case verifiable sales data).34 Now that goes to the
judgment of the court has apparently not done or done insufficiently and the court also did so without it
data from [plaintiff] was able to fulfill his damage assessment task, there was in my opinion
In the opinion of the court, there is no obligation for [plaintiff] via art. 22 Rv or an evidentiary order for the helping person
to offer a hand.
It can be admitted to [plaintiff] that, when the court uses the information provided by
[plaintiff] could have relied on the documents presented in the case when estimating the damage
the actual sales prices of all apartments and the actual sales prices
capacity of the buyers of those apartments (private individuals or investors), possibly still
could have made a more accurate estimate of the actual lost revenues
on the basis of the relevant part of the formula (“sales price x brokerage”).35 However, the court has
explains in detail that it could not use this data because it was on
relevant points could not be verified (para. 6.7) and that [plaintiff] has insufficient
substantiated why she could not do more than she did to – in my words – the
to bring the relevant data into question in a verifiable and GDPR-proof manner (para.
6.8). The court has in para. 6.8 also pointed out various options that [plaintiff]
could have used: hiring a chartered accountant yourself, it in a lot
enter into consultation at an earlier stage about temporary release or inspection and/or requesting permission
to buyers to submit the relevant information. I would add that this judgement
cannot have come as a surprise to [plaintiff] now that the court in para. 2.24. from the
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
final judgment (see paragraph 2.8 above) had already ruled that [plaintiff] had the relevant information
could have brought into the proceedings in a manner acceptable to her, to which the court in para.
6.6 has also pointed out again. Now that [plaintiff] has failed to do so on appeal, as the court in
ro. 6.7, first sentence, has emphasized ("has the latter [the relevant information on a for her
in an acceptable manner in order to substantiate its defense, A-G]
not yet done (…)”), it is not incomprehensible that the court followed the reasoning
estimation of PME has the consequence of not being verifiable
data from [plaintiff] about the actual sales prices achieved and status of
buyers.36
In this context I would like to point out a passage from the minutes of the oral hearing
on appeal (p. 3, bottom, and p. 4, top):
“You ask me whether the starting point should not be that as much as possible should be achieved
connected to reality, i.e. how many apartments to private individuals and how many to
investors were sold and at what price the apartments were sold. You keep both
parties that this is primarily a responsibility for the parties and that the court
wonders whether the parties have already had consultations here. You keep the parties informed of this in the first instance
many interim judgments have already been handed down. It is true that the starting point is Dutch law
finding the truth, but there is an end to this too. It is not that the court only has one
made a wild move. The court's decision is not crazy considering the material aspects
reality. The court based itself on the objective data it had available(…).”
In my opinion, this is also evident from (the representation of) this question from the court to (the lawyer of) PME
that the court had in mind the starting point of a concrete damage estimate.
Part 1 has therefore been proposed in vain.
In anticipation of parts 2 and 3, I would like to note the following. At the state of affairs
in which the court came to the conclusion that [plaintiff] had withdrawn her defense against the budget of
PME has not sufficiently substantiated (see legal ground 6.9), the court turned to the provision of evidence (cf
part 2) or for a (mandatory) further instruction (compare part 3) (see
also marginal 3.10 above). In the context of the assessment of the sales costs charged by PME
have been budgeted at €800 per apartment, the court has given this in legal proceedings. 6.20 concise and on appeal
undisputed (see paragraph 3.7 above) expressed as follows:
“The court considers this a plausible and convincing argument, which [plaintiff] does not or hardly respond to
gone. The court does not get around to providing evidence and, as stated, sees no reason for one
expert report. She considers herself sufficiently informed by PME's extensive explanation
and is of the opinion that [plaintiff] has not sufficiently substantiated her defense against this.”
Part 2: pass evidence offers
Part 2 is specifically aimed at the court's judgment on the passing of the
proof offers from PME in para. 6.8-6.9 of the contested judgment. Although this part already
If I fail on what I just wrote in paragraph 3.15, I will go through the statements of the section anyway
one by one after that.
The section states firstly, with reference to paragraph 25 of the statement of appeal,
that it is incomprehensible that the court in para. 6.9, fourth sentence, of the contested judgment
considered that it has become clear from the statements on appeal that [plaintiff] is not prepared
was to submit all documents in uncensored form.
The offer of evidence for ground 2, which is included in paragraph 25 of the statement of appeal,
reads as follows (with my underlining):
“Finally, [plaintiff] expressly offers, if your Court is of the opinion that your Court, or PME,
must be able to record each individual deed not only digitally but also physically
to be able to take note of the whole, to also physically incorporate all the deeds from Exhibit 12 in their entirety
to bring the case.”
It is not incomprehensible that the court "in its entirety" as referred to above
has not interpreted the quotation as “in uncensored form” as intended by the court, i.e. without that
3.20
3.21
3.22
3.23
3.24
3.25
3.26
3.27
3.28
essential information in the deeds had been blacked out. The court, who is responsible for the interpretation of the case documents
is reserved as a fact-finding judge, could explain the intended evidence in any comprehensible way
as it has done, so that the evidence offered only indicated that the blackened deeds were not
would only be compromised digitally but also physically.
In that context I point to marginal number 23 of the statement of appeal, in which under “digital
whole” are also taken to mean the partially blackened deeds (with
underlining mine):
“Because of their size, these deeds [exhibit 12 to the statement of appeals, A-G] are only
digitally presented in its entirety on a USB stick presented with this deed, in order to
avoid having many boxes with thousands of pages of physical paper documents in the dispute
must be brought. For privacy reasons, all information that can be traced back to individuals has been deleted
the deeds blacked out. These personal data are for the assessment of the present case
dispute is not important.”
The court's interpretation is consistent with this.
I further refer to the following statement from (the lawyer of) [plaintiff], which can be found on p. 2,
first indent, of the minutes of the oral hearing above
profession:
“In addition to point 2 of my pleadings, I would like to note the following. If the court
If you wish to have all physical documents brought into the proceedings, we will do so. However, they are
thousands of pages, which is why we opted for a USB stick. One of the comments
of PME is that it cannot see whether it concerns private buyers or investors because there is a lot
painted black. You ask me whether we have thought about possible solutions to accommodate this
come to the objection that this is not verifiable. This is a tricky issue considering
the GDPR. (…)”
This also shows that [plaintiff] was apparently prepared to have all the documents not only digitally but also digitally
in physical form, but not in uncensored form. The judgment of it
The court is therefore not incomprehensible in this respect.
Secondly, the part complains, relying on the official minutes of the hearing on appeal
profession, that para. 6.8, first sentence, of the contested judgment, in which the court considered that
[plaintiff] stated at the hearing that due to the GDPR she did not have all the original documents for inspection
wants to give to PME is incomprehensible.
The section relies on the following sentence of (the lawyer of) [plaintiff] from the minutes of the oral hearing on appeal (p. 3):
“If there is distrust(...) PME can come and take a look, possibly with an accountant and perhaps
on a random basis.”
This sentence makes rov. 6.8 not incomprehensible. The following sentence is added to this sentence in the official report
passage in advance:
“The GDPR is a problem. Due to the GDPR, we prefer not to give all original deeds to PME
for checking. It is not permitted to include data files that can be traced back to individuals
create a separate composite file or document. That this data from individuals
Public data being traceable does not change this.”
The court has in para. 6.8, first sentence, only shows (abbreviated) that [plaintiff] is at the hearing
stated that due to the GDPR it does not want to provide all original deeds to PME for verification. That is
not incomprehensible. As Rob. 6.8.-6.9 should be read in conjunction with each other, the court also agreed
adequately responded to this statement made by [plaintiff] at the hearing (see also marginal no
3.33 below).
The section thirdly complains that, in light of the evidence offered in paragraph 55 of the
statement of appeal, the judgment of the court in para. 6.9 of the contested judgment that the offer
at the hearing to have a chartered accountant look at the deeds, was done in the context of a
possible settlement and the parties have not reached a settlement but have requested a judgment,
is incomprehensible.
3.29
3.30
3.31
3.32
3.33
6.9
3.34
3.35
3.36
3.37
The contested consideration of the court from para. 6.9 reads as follows:
“For the record, the court would like to point out that the above-mentioned offer at the hearing is:
having a chartered accountant look at the deeds, as the court understands, was done in the context
of a possible arrangement. However, the parties have not reached a settlement, but have requested a judgment.”
With the above-mentioned offer at the hearing, the court referred back to legal ground. 6.8,
second sentence:
“After consultation during a suspension, [plaintiff] offered that PME appoint a chartered accountant
at his option (at the expense of [plaintiff]) all physical deeds can be viewed at [plaintiff].”
The official report of the appeal hearing states this on p. 5, read the following:
“The chairman suspends the hearing for consultation between the parties and their lawyers. After resumption of
the hearing, the lawyers announce that the parties have not reached an agreement. There is with
specifically discussed the issue of grounds 1 and 2. [plaintiff] has offered that PME will provide a
chartered accountant of your choice - at the expense of [plaintiff] - can inspect all physical deeds at
[plaintiff]. However, PME itself wants to have all physical deeds (temporarily) available for various reasons
to be able to check.”
The contested judgment is therefore in the light of the case documents and the preceding ones
legal considerations. The offer of proof that [plaintiff] in paragraph 55 of the
has filed a statement of grievances does not change this. The relevant offer of evidence
reads:
“In addition, [plaintiff] offers to have an independent expert appointed by your court to:
to carry out an audit of the numerical substantiation presented in the dispute and related thereto
underlying deeds.”
After all, this offer of evidence is already in conflict with what the court stated in para. 6.8-6.9 of the contested
judgment has considered before it addresses the hearing separately “for the record”.
offer made in the context of a scheme, including:
“(…) Indeed, [plaintiff] has not at least insufficiently substantiated why she could not do more
do than she has done. This could include calling on one yourself
registered accountant, to enter into consultation at a much earlier stage about temporary issue or
inspection (e.g. at PME's own office or the lawyer), and requesting permission
to buyers (in any case to investors) to be allowed to submit the relevant information.
The conclusion is that [plaintiff]'s defense against PME's budget is insufficient
substantiated and that no correction will be made on this point. To further
evidence or an expert report will therefore not be received. (…)”
So there is no question of an incomprehensible judgment.
Part 2 fourthly complains that insofar as the court in para. 6.8-6.9 of the contested judgment
ruled that [plaintiff] waived her offers of evidence at the hearing
marginal numbers 25. and 55. of the statement of appeal that the judgment is incorrect or at least incomprehensible and
is insufficiently motivated.
To this extent, the part fails due to a lack of factual basis, which the court does not have
ruled that [plaintiff] waived the relevant at the hearing
evidence offers.
Fifth, the section complains that the court wrongly accepted [plaintiff's] offer of proof
marginal number 54. of the statement of grievances against [person involved 4], who works as a project controller
passed by [plaintiff], as a witness.
This part also lacks a factual basis, insofar as it takes as its starting point that
the court did not address this at all. After all, the court has in para. 6.9 of the contested judgment
has indeed considered that further evidence will not be provided, because [plaintiff]
has not sufficiently substantiated its defense (see also paragraph 3.33 above). By the way
hearing this (party) witness is also not relevant for verifying
blackened passages from the documents submitted.
3.38
3.39
3.40
3.41
3.42
3.43
Sixth, the section complains that the judgment that the evidence tenders are out of time is incorrect,
now that they have been submitted in the statement of appeal and therefore in a timely manner.
The section apparently focuses on the following passage from para. 6.9:
“It has become clear from the statements on appeal that [plaintiff] was not prepared to do everything
documents in uncensored form, notwithstanding that a
such an offer would be too late. (…) Insofar as the offer already served to...
to provide further substantiation to [plaintiff's] defense, this is in view of the stage of
the procedure is contrary to due process.”
The section overlooks the fact that the court considers the evidence presented in the statement of appeal
could not incomprehensibly explain this, namely that [plaintiff] was prepared to accept the
black-lacquered documents were also completely digitally brought into the dispute, but was not prepared to do so
the blackened documents (digital or physical) in uncensored form are at issue
(marginal number 3.19 above). Insofar as [plaintiff] still has that at the hearing
presented, the court could indeed, based on that reading of the statement of appeal, that
is not incomprehensible, judge that this was not timely or was contrary to due process. On this
bounces the part off.
Finally, part 2 complains that the judgment about passing the evidence offers
Moreover, it is incorrect, because it is contrary to art. 149 and 150 Rv, is. According to the section, the court
it was misunderstood, given the reasoned challenge by PME of the reason for the removal
of the privacy-sensitive information as shown in para. 6.8-6.9 of the contested judgment,
[plaintiff] should have been given the opportunity to bring the physical documents into the proceedings, a
should have provided evidence or appointed a judicial expert
and/or [person involved 4] should have been heard as a witness.
It is not entirely clear to me what [plaintiff] meant by the substantiated dispute
PME of the reason for concealing the privacy-sensitive information. In the memory of
PME's answer in this regard is in marginal number 3.7, which marginal number is part of it
refutation of [plaintiff's] grounds of appeal 1 and 2, including the following:
“The blacked out parts are important for verification of these essential points. The fact that
[plaintiff] (and her backer) has repeatedly shown themselves to be an unreliable party –
which has also literally been determined by the court - must be taken into account. The
unjustified accusations against PME for 'doctoring' with the Appointment Letter and
consciously but wrongly denying one's own signature on that document,
mean that [plaintiff's] statements should be viewed with great skepticism. Your Court would have regard
against that background should not be based on [plaintiff] in fact only fragmentary
documents submitted.”
During the oral hearing on appeal, this skepticism of PME regarding the
GDPR objection from [plaintiff] further detailed as follows, recognizable from the official report, (p. 4,
at the top):
“[It] is not up to PME to move in the direction desired [by] [plaintiff] just because
is protected with small pieces of deeds. (…) If privacy were really an issue, it would have been
[plaintiff] must prove this. They should have found out what the GDPR is and what the
dangers in that context. Simply saying that they are not allowed to provide personal data
without substantiation is too easy. I also wonder if a stack of deeds is a “compiled
file can be traced back to individuals.”
[plaintiff] also noted at the hearing in her reply about grounds 1 and 2 (official report, p. 5):
“It is formally legally important to note that PME supports [plaintiff's] position
casts doubt and puts the ball in [plaintiff's] court. But it is up to PME to move. It is important to
to establish that it is up to PME as the plaintiff to determine the damage and the extent of the damage
to state and prove. As part of her substantiated dispute, [plaintiff]
Exhibit 12 brings the entire overview into question. (…) To substantiate the overview
we have submitted all the documents to the proceedings (…).”
3.44
3.45
3.46
3.47
3.48
3.49
3.50
PME subsequently responded as follows (official report, p. 6):
“With regard to the GDPR, I would like to note that this was already raised in the first instance. There may then
[plaintiff] is also expected to substantiate this and provide an explanation of Exhibit 12
gives her statements just a little more substance. What does the GDPR specifically say about this?
case according to [plaintiff]? What is not allowed? And what is allowed? Otherwise we will be in that situation
we now have that protects against the GDPR in a very easy way.”
In view of the reason stated by PME in paragraphs 3.41-3.42 and 3.44 above
for the concealment of the privacy-sensitive information by [plaintiff] once again
[plaintiff] may have expected that she had further substantiated the GDPR defense, as the court stated in para.
6.8 has also considered. Be that as it may, it is not incorrect that the court presented the evidence
of PME has passed and the court's judgment is not in conflict with art. 149 and 150 Rv (see also
marginal numbers 3.8 and 3.11 above).
Part 2 also fails.
Part 3: obligation to state privacy-related objections
Subsection 3.1 firstly states that, contrary to what the court has ruled, [plaintiff]
has not stated sufficiently about the reasons why it anonymized the deeds.
If the court has ruled that [plaintiff] should have specified which specific
provisions of the GDPR she relied on, the court failed to recognize that it could do this if necessary
basis of art. 25 Rv should have assessed ex officio, according to the subsection. It
subsection also states that the court misjudged that of [plaintiff] in the given
circumstances could not be expected to provide more information on its own initiative
to substantiate its statements regarding the damage estimate it has
done. In that case, [claimant] would have violated the GDPR according to the subsection.
The subsection apparently opposes the following passage from para. 6.8 of the contested
judgment:
“PME has further argued – rightly in the opinion of the court – that [plaintiff] had already raised the GDPR objection in the first instance and that [plaintiff] should have been allowed to
expected that she would substantiate this defense and state specifically what she believes is and is
is not allowed under the GDPR, so that this could have been discussed. Indeed
[plaintiff] has not at least insufficiently substantiated why she could not do more than she has
done."
These considerations of the court are in line with comments made by PME during the oral hearing
treatment on appeal cited in paragraphs 3.42 and 3.44 above. Of a misrecognition
by the court of art. 25 Rv is not the case. After all, in the court's opinion it was not
necessary to determine whether, and if so on what legal basis, [plaintiff] would have the GDPR
violated if it had the relevant data at stake in a verifiable manner
brought. The court's judgment is (presumably) taken as a starting point
that the GDPR poses a problem in bringing the relevant data into question.
However, in the court's opinion, [plaintiff] could have done more to address this
to meet those (presumed) GDPR objections. At the end of par. 6.8
After all, it substantiates how [plaintiff] could have done this:
“This could include hiring a chartered accountant yourself, or joining one
consult at a much earlier stage about temporary release or inspection (e.g. at your own office
from PME or the lawyer), and to requesting permission from buyers (in any case from the
investors) to be allowed to submit the relevant information.”
In the opinion of the court, there were sufficient opportunities to make GDPR-proof verifiable data
to submit data (see also paragraph 3.11 above). As far as the subpart goes
from another reading of the contested judgment, it lacks factual basis. As far as it
subsection disputes that it was possible to verify this without violating the GDPR
to submit sales data, it is based on an incorrect legal concept. I explain that
based on the judgment of the Court of Justice of the European Union (hereinafter: 'the CJEU')
regarding Norra Stockholm Bygg AB37, which is frequently referred to in the written explanation
3.51
3.52
referred.
In the aforementioned case, the CJEU considered, among other things, that when considering whether
in the context of civil proceedings, it is appropriate for the national court to produce the information
of a document containing personal data of third parties to order two fundamental rights in the
are:
“48 As regards the interests in the context of civil legal proceedings, the
national court – as is apparent in particular from recitals 1 and 2 GDPR – the protection of
natural persons when processing personal data, which is a fundamental right
this is laid down in Article 8(1) of the Charter and Article 16 TFEU. This judge must
also the right to respect for private life enshrined in Article 7 of the Charter
guarantees, which is closely related to the right to the protection of personal data.
49 As stated in recital 4 GDPR, you have the right to the protection of personal data
However, this is not absolute, but must be in relation to its function in society
must be considered and weighed in accordance with the principle of proportionality
against other fundamental rights, such as the right to freedom guaranteed by Article 47 of the Charter
effective legal protection.
50 The submission of a document containing personal data of third parties in the context of a
civil judicial proceedings contribute to the respect of this right to effective
legal protection, as the Advocate General essentially noted in paragraph 61 of her judgment
conclusion.
51 Since the first sentence of the second paragraph of Article 47 of the Charter in this context
corresponds to Article 6(1), first sentence, of the Rome Convention of 4 November 1950
signed Convention for the Protection of Human and Fundamental Rights
freedoms, their content and scope are under Article 52(3) of the Charter
the same as those conferred by that Convention on Article 6(1) thereof.
52 According to settled case law of the European Court of Human Rights, it is
the prominent place given to the right to a fair trial in a democratic society
it is essential that the individual has the opportunity to properly present his case
to defend himself in court and that he enjoys equality of arms with his opponent [see to that effect
ECtHR, June 24, 2022, Zayidov v. Azerbaijan (no. 2), CE:ECHR:2022:0324JUD000538610, § 87
and case law cited there]. It follows in particular that the individual must be able to do so
participate in an adversarial procedure and in its various phases
must be able to put forward arguments that he considers relevant to the defense of his case
(ECHR, 21 January 1999, García Ruiz v Spain, CE:ECHR:1999:0121JUD003054496, § 2).
53 To ensure that individuals have the right to effective legal protection
and in particular the right to a fair trial within the meaning of the second paragraph of Article 47,
of the Charter, it should therefore be considered that parties in civil proceedings should have access
have access to the evidence necessary to satisfy the merits of their grievances
evidence, which may include personal data of parties or third parties.”
It therefore follows that the GDPR does not contain an absolute ban on sharing personal data
a civil procedure. After all, that would conflict with art. 6 ECHR
guaranteed right to a fair trial. However, it is up to the national court
to take into account the principle of proportionality:
“54 As stated in paragraph 46 of this judgment, the balancing of the interests involved
however, part of the investigation into the requirements of Article 6(3) and (4) GDPR
necessity and proportionality of the measure, which determine the legality of the
processing of personal data. Therefore, this must also be taken into account in this context
Article 5(1) thereof, and in particular the principle of 'minimum data processing'
3.53
3.54
3.55
3.6.
point (c) of this provision, which expresses the principle of proportionality. According to this
principle of minimum data processing, the personal data must be sufficient and relevant
serving, as well as being limited to what is necessary for the purposes for which they are intended
are processed [see, to that effect, judgment of 22 June 2021, Latvijas Republikas Saeima (Penalties),
C-439/19, EU:C:2021:504, paragraph 98 and the case-law cited].
55 The national court must therefore determine whether the provision of personal data
sufficient and relevant to comply with the applicable provisions of national law
achieve the intended purpose and whether this purpose cannot be achieved through use
of less intrusive evidence with a view to the protection of personal data
a large number of third parties, such as by interviewing certain witnesses.”
The CJEU has provided the national court with some practical tools:
“56 In the event that the presentation of the document containing personal data is justified
it also follows from that principle that the national court, where only part of that
data proves necessary for providing evidence, should consider additional
to take data protection measures, such as those referred to in Article 4(5) GDPR
defined pseudonymization of the names of the data subjects or any other measure
the interference with the right to protection of personal data as a result of the presentation
of such a document to a minimum. These measures may include:
that public access to the file be limited or that the parties to whom the
documents containing personal data have been provided, you are ordered not to use that data
for any purpose other than evidence in the judicial proceedings concerned.”
This judgment of the CJEU concerns the case where the national court is a party
obliged to provide a document with personal data of third parties as proof.38 It
document concerned an electronic attendance registration of construction personnel with which the
The defendant wanted to prove that the number of hours worked on the construction of the office building
of the defendant was lower than the number of hours during which the plaintiff submitted her claim for payment for the
construction work carried out. The plaintiff opposed the provision of it
document invoking art. 5 (1) (b) GDPR (“purpose limitation”), now the relevant one
personal data has been collected for the purpose of inspection by the tax authorities and is not included
consistent with this purpose was to provide this information to the judge.39 In the
literature, the following conclusion is drawn from the judgment:
“[T]he litigant who prefers not to have certain documents containing personal data in dispute
In my opinion, there will be little chance of an appeal to purpose limitation on the part of the person concerned
facts. After all, there are many technical and practical measures conceivable to protect the interests
of the involved parties included therein. However, it is up to the judge
to test that.”40
Such a judicial review would be required under Dutch civil procedural law
for example, can take place in the context of art. 22 Rv or art. 843a Rv.41
In the present case, [plaintiff] has chosen the relevant option on appeal
data, which are in its domain, is in many places blackened in the dispute
42 PME immediately stated this in its first procedural document, in marginal numbers 3.5.-3.7. from her
statement of defense, pointed out that:
“significant and essential parts have been blackened. The bottom line is that PME and your Court (for
a significant part) have to blindly rely on data provided by [plaintiff].
That approach cannot be followed. Based on the documents submitted, it is in any case
case not clearly understood:
(a) whether the purchase and construction agreements as submitted have actually been concluded
and signed;
(b) whether there is individual sale to private individuals (or small BVs) or sale to large ones
3.7.
3.56
3.57
3.58
parts of the Project to an (institutional) investor; and
(c) whether all existing agreements regarding the commercial spaces have been shared. From the
After all, shared information cannot be deduced which part or surface of the data
commercial space has been sold.
The blacked out parts are important for verification of these essential points. (…)”
The court has accepted PME's position in para. 6.7 of the contested judgment. It
subsection then points to the following passage by [plaintiff] from the official report of
the oral hearing on appeal (p. 2):
“One of PME's comments is that it cannot see whether it concerns private buyers or private buyers
investors go because much has been painted black. You ask me whether we have thought about possible options
solutions to meet the objection that this is not verifiable. This is
a difficult issue given the GDPR. The answer to the question of whether an apartment is suitable for...
private buyer or has been sold to an investor, however, it can be found out fairly quickly given the
amounts. There are three investors. In some places it can be seen that there is a substantially higher
purchase price has been paid. Based on the purchase prices, it can be determined whether:
is a private individual or an investor. At very high prices there is a cluster of
homes and the buyer is therefore an investor and in other cases it is a private individual.
Investors have always been sold in clusters.”
The court has stated in legal paragraph. 6.7 considered: “Whatever the case (the statement is disputed),
This does not yet address all of the objections mentioned.” Also in the opinion of it
court, there is therefore blackened information that is essential for verifying the
data, as also appears from para. 6.9 (“the omission of essential information”). In terms of it
principle of minimum data processing of art. 5 (1) (c) GDPR, on which the
subsection is appealing in cassation for the first time,43 which means that [plaintiff] more
has omitted information other than what it was obliged to do on the basis of that provision. The Council
therefore did not ignore what could be expected of [plaintiff] in the given circumstances
that it would of its own accord provide more data to substantiate its statements
regarding the damage estimate than she did. That they do not store the relevant data
has been brought into question in a verifiable manner, is [plaintiff's] own choice, of which she herself
will have to bear the consequences (see also marginal numbers 3.10-3.11 above and compare art. 21
Rv44). The consequence in this case is that the court does not include the blackened documents
damage estimate, but has estimated the damage on the basis of a
reasoned estimate ex art. 6:97 BW based on the data provided by PME. Mine
In this context, colleague De Bock has discussed the trade-off between confidentiality and
finding the truth, wrote the following in her 2011 dissertation (footnotes
not taken from the original):
“That is the case in most situations where the judge has to make a trade-off between confidentiality
and truth-finding, the importance of truth-finding weighs more heavily, is right. (…) It's different
it when a party relies on confidentiality of data and thus its own
evidential position becomes more difficult. There is then less reason to emphasize the importance of finding the truth
weigh the importance of confidentiality. It is a party's own choice: either the
reveal confidential information or lose the proceedings.
In this situation it will usually not be necessary to actually force a party to do certain things
make information public. The judge can rule out non-compliance with an information or
notification obligation “to draw the conclusion (…) that he deems appropriate”. That conclusion will have to be made
are: losing the procedure. This sanction is also sufficient in principle; finding the truth
is, after all, not a goal in itself, but serves the purpose of correctly establishing the facts, so that
an acceptable judicial decision can be made. When the judge makes that decision
can take by drawing the consequences of failure to comply with an information obligation
a party, there is no reason for further discovery of the truth.”45
This is precisely the difference between the present case and the case that led to it
3.59
3.60
3.61
Norra Stockholm Bygg. In the latter case, the party in whose domain the data was obtained made it difficult
were located and which raised a GDPR objection (purpose limitation) did not have its own evidentiary position, but
that of the defendant, which wanted its defense with the relevant information
substantiate this (see paragraph 3.54 above). In the present case, [plaintiff] is making it difficult
the GDPR objection (apparently based on minimal data processing, see marginal 3.57
above) her own evidentiary position; after all, she is there, through the documents that are in her domain
found that invoking the GDPR to conceal essential information, she was unsuccessful
sufficient substantiation of defense against PME's budget. In the CJEU case, the
Swedish courts therefore imposed an obligation to include the relevant document
to bring proceedings, while the court in the present case saw no reason to
[plaintiff] on the basis of art. 22 Rv to order the relevant documents in uncensored
form (at least in a verifiable manner and GDPR-proof). That brings us to the
next subsection.
Subsection 3.2 firstly complains that the court failed to recognize that art. 22 paragraphs 2 to 6 Rv
applies mutatis mutandis to the case in this case in which the documents,
in respect of which the person submitting them invokes a duty of confidentiality, not
order of the judge but of its own accord. The subsection states
furthermore that art. 22 paragraph 7 Rv of the Bill on simplification and modernization of evidence law
lends itself to anticipatory application in this case.
The currently applicable art. 22 Rv reads as follows:
1. The judge may in all cases and at any stage of the proceedings the parties or one of them
orders to explain certain statements or certain matters related to the case
to submit modestly.
2. Parties may refuse this or inform the judge if there are compelling reasons for doing so
that only he will be allowed to take note of the explanation or the documents.
3. The judge decides whether the refusal referred to in the second paragraph or the restriction
of taking cognizance is justified.
4. If the judge decides that the refusal or restriction is not justified
is, he can draw from it the conclusion he deems appropriate.
5. If the judge has decided that the refusal is justified, the obligation lapses.
6. If the judge has decided that the restriction of access is justified, it is possible
only with the consent of the other parties, partly on the basis of that explanation
or make that modest statement. If permission is refused,
the matter was referred to another room.
According to the Simplification and Modernization of Evidence Law Bill (hereinafter: 'the
bill'), this provision will read as follows:
1. The judge may in all cases and at any stage of the proceedings the parties or one of them
orders to explain certain statements or certain matters related to the case
to submit data.
2. If there are compelling reasons for this, the parties may refuse this or inform the judge
Only he will be allowed to take note of the explanation or data.
3. The judge decides whether the refusal referred to in the second paragraph or the limitation of the
knowledge is justified.
4. If the judge decides that the refusal or restriction is not justified, but a party
continues to refuse to comply with an order as referred to in the first paragraph, the matter will be referred to the
further treatment referred to another chamber, which based on that party's refusal
can draw conclusions that he deems appropriate.
5. If the judge decides that the refusal is justified, the obligation expires. The judge
can then only make a decision based on the basis with the consent of the other parties
of that explanation or those documents. If permission is refused, the matter will be referred to the
further treatment referred to another room, resulting from the refusal of the other
parties can draw the conclusion he deems appropriate.
3.62
3.63
3.64
3.65
6. The judge may also immediately refer the case for the decision referred to in the third paragraph
another room. After the decision of the other chamber, the matter will be dealt with further
treatment referred back to the judge, which resulted from a refusal by the parties as referred to in the
fourth or fifth paragraph can draw the conclusion he deems appropriate.
7. The second to sixth paragraphs apply mutatis mutandis if a party is the judge
states that it itself wants to explain certain statements or relate certain things to the case
wishes to submit information in the proceedings of which only the judge or also one
authorized representative as referred to in Article 22a may take note.46
The explanatory memorandum to the bill describes this change as follows, among other things
explained:
“Article 22 now exclusively relates to the situation in which the court orders a party to make certain provisions
to provide information or submit documents to the proceedings. It is conceivable that a party ter
in support of its statements, wishes to submit certain confidential data under
the condition that only the judge takes cognizance thereof or that the taking cognizance of this
data remains reserved to an authorized representative as referred to in Article 22a. On the basis of a
In the new seventh paragraph, a party can also request the court for a ruling in such a case
to indicate the confidential nature of the data on which it wishes to rely before
she brings this into question. The judge will have to exercise restraint in a request
of a party to withhold certain information from the other party. An appeal to
confidentiality of data relevant to the proceedings can only be granted if that
is necessary due to the confidential nature of the data or on the basis of a
right of non-disclosure is justified. The infringement of the truth and the fundamental
principle of audi alteram partem must be limited to exceptional cases.”47
The bill has been registered for plenary discussion in the House of Representatives. From the
list of decisions of the procedural meeting of the standing committee for Justice and Security of
September 7, 2023 it appears that the bill has been declared non-controversial.48
It is established that the court [plaintiff] did not order as referred to in art. 22 paragraph 1 Rv has provided. A
there was no obligation to do so, art. 22 Rv is (and will remain in the intended new regulation)
a 'can' provision (see paragraphs 3.60-3.61 above). That the court in this case does not
has given rise to such an order is also entirely understandable (see also below
marginal number 3.10 above). The court was able to do so without having the relevant data
after all, [plaintiff] fulfills his obligation to estimate the damage suffered by PME, now PME itself
had made a reasoned estimate partly based on what she had published
available information, outdated sales prices. Through the black-lacquered documents of
[plaintiff] not taken into account, PME was not affected in its evidentiary position (see
margins 3.57-3.58 above). [plaintiff] could have chosen to store the documents on a
verifiable manner and GDPR-proof, but has to do so, for its own sake
reasons (compare marginal numbers 3.41-3.42 and 3.44 above), not done. Against this one
background, I also do not see how a corresponding application of art. 22 paragraphs 2 to 6 Rv
[plaintiff] can benefit. If the judge is of the opinion that a refusal to bring data into question
is not justified, the court can, on the basis of art. 22 paragraph 4 Rv (as well as the
is the case in the context of art. 21 Rv) draw the conclusion he deems appropriate. See that
the subsection is over. Or art. 22 paragraph 7 Rv of the bill can be made anticipatory
applied, can remain in the middle here.49 After all, it is certain that [plaintiff] the court does not
has requested an assessment of the confidential nature of the data
which it wishes to rely on before bringing it into question. In that state of affairs
to any anticipatory application of the relevant paragraph 7 of the bill
arrived.
Subsection 3.2 further complains that the court finds that [plaintiff] has insufficient
substantiated that she could not do more than she did, failed to recognize that [plaintiff] in view of
her privacy rights objections could suffice by submitting the anonymized deeds
and submitting the statement of appeal mentioned in paragraphs 25 and 55
evidence offers.
3.66
3.67
3.68
3.69
3.70
3.71
1
With the judgment, in short, that [plaintiff] could have done more than she did and the
examples that the court added at the end of para. 6.8 has mentioned ("This can be done
thought of (…)”), in my opinion, the court has expressed that it is for [plaintiff].
it was quite possible to enter the relevant documents in a verifiable and GDPR-proof manner
to bring into law. [Plaintiff] could therefore not content himself with glossing over essential information
as she did. This applies to the offers of evidence from the statement of appeal
the court was able to interpret it as it did. The subsection divides this to that extent
the fate of the previous (sub)parts.
Finally, subsection 3.2 complains that the court's judgment is also incomprehensible
is insufficiently motivated, now that [plaintiff] has indeed explained why the appointment of
a judicial expert was preferred.
In this context, the subsection relies on the following passage from the official report
of the hearing on appeal (p. 3):
“If an expert has to be appointed for this, we think it would be best if the court one
appoints an expert. We could have hired a real estate agent ourselves, but then we had PME
will probably have a counter-investigation carried out and a lot of costs will be incurred. You ask
what kind of expert this should be. I think in that case an expert is needed
appointed who has experience in the industry. One could be considered
chartered accountant who also assesses real estate companies.”
The passage unquoted by the subsection that precedes this shows that this
appeal to the appointment of an expert relates to point 6 of the pleadings
[plaintiff], which point relates to a completely different ground, namely ground 5. That explanation
of [plaintiff] at the hearing in the context of another complaint (than complaints 1 and 2) makes it
the contested judgment is therefore not incomprehensible. The court has presented the relevant evidence
also recognized in the assessment of ground 5 (see legal ground 6.18, final sentence: “She has offered
to provide proof of the latter, or at least it has offered to appoint an independent expert
to have your court appointed”), which the court discussed in para. 6.20 (undisputed in cassation, see
marginal numbers 3.7 and 3.15 above) has ruled that it is not appropriate to provide evidence and
sees no reason for an expert report.
So part 3 also has no effect.
Conclusion
The conclusion is that, since none of the complaints have been successful, the contested judgment can be upheld
to stay.
The conclusion leads to the dismissal of the cassation appeal.
The Attorney General at the
Supreme Court of the Netherlands
A-G
The overview of facts is, with editorial adjustments, taken from the contested judgment: Den Court of Appeal
Hague October 4, 2022, ECLI:NL:GHDHA:2022:2100, para. 3.1-3.13.
4 Conclusion
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Exhibit 4 to the introductory summons.
Exhibit 10 to the introductory summons.
Exhibit 13 to the introductory summons.
Exhibit 14 to the introductory summons.
Exhibit 11 to the introductory summons.
Exhibit 18 to the deed containing amendment/increase of claim, as well as deed containing
submission of exhibits dated October 10, 2018 from PME. The court issued this letter, following on from
the court, incorrectly dated August 9, 2019 under the facts. See The Hague Court of Appeal October 4
2022, ECLI:NL:GHDHA:2022:2100, para. 3.12 and Rb. The Hague May 29, 2019, case number: C/09/558985
/ HA ZA 18-935 (not published), para. 2.17. In the remainder of the judgment, the court is correct
date, see The Hague Court of Appeal October 4, 2022, ECLI:NL:GHDHA:2022:2100, para. 4.1, 4.5, 6.1,
6.21-6.22 and 6.24.
Rb. The Hague May 29, 2019, case number: C/09/558985 / HA ZA 18-935 (not published).
Rb. The Hague July 17, 2019, case number: C/09/558985 / HA ZA 18-935 (not published).
Rb. The Hague October 30, 2019, case number: C/09/558985 / HA ZA 18-935 (not published). It
recovery meant that should have been included in the operative part of the interim judgment of July 17, 2019
stipulates that the handwriting expert sends his draft report directly to the parties.
Rb. The Hague April 15, 2020, case number: C/09/558985 / HA ZA 18-935 (not published).
Rb. The Hague January 27, 2021, case number: C/09/558985 / HA ZA 18-935 (not published).
Rb. The Hague September 29, 2021, case number: C/09/558985 / HA ZA 18-935 (not published).
The court erroneously did not include the brokerage fee in respect of Bouwblok Benjamin of € 206,611
the sum involved.
The Hague Court October 4, 2022, ECLI:NL:GHDHA:2022:2100.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons in connection with the processing of personal data and
on the free movement of such data and repealing Directive 95/46/EC (general
Data Protection Regulation) (OJEU 2016, L 119).
I will omit references in footnotes when presenting the (sub)parts. On
I take into account what is stated in those footnotes and the written explanation, insofar as relevant
treatment of the (sub)components.
In this context, see GS Damages, art. for further references. 6:97 BW (current up to and including
July 15, 2022) (S.D. Lindenbergh).
See for example HR 26 March 2010, ECLI:NL:HR:2010:BL0539, RvdW 2010/468, para. 3.5 (also
cited in footnote 17 of the written explanation).
See for example HR 10 February 2017, ECLI:NL:HR:2017:208, NJ 2017/134 m.nt. S.D. Lindenbergh and
YES 2017/56 m.t. M.R. Hebly (Donata/New India), para. 3.3.3 (which statement is also cited in
footnote 17 of the trial introduction) and also HR 8 September 2023, ECLI:NL:HR:2023:1172, para. 3.2.2.
See also D.L. Barbiers, 'Dogmatic integration and justification of abstract budget of
financial damage', NTBR 2022, p. 309 et seq. and D.A. van der Kooij, 'What is financial damage? A
overview of ten different types of disadvantage', RM Themis 2021, p. 159 ff., both with further
references.
For the sake of completeness, I note that the plea rightly takes as its starting point that art. 6:97 BW
according to your Council, there is room for an abstract damage estimate in specific cases, for reasons
of efficiency or fairness, the core of which is that of one or more circumstances of the
concrete case is abstracted. See for example Asser Verbintenissenrecht/C.H.
Sieburgh, Part 6-II. The commitment in general, second part, Deventer: Wolters Kluwer 2021, no.
35, S.D. Lindenbergh, Damages: general, part 1, Deventer: Wolters Kluwer 2020, no. 38 and T.
Hartlief, W.H. van Boom, A.L.M. Keirse & S.D. Lindenbergh, Obligations under the law and
Compensation, Deventer: Wolters Kluwer 2021, no. 208 (T. Hartlief), all with further
22
23
24
25
26
27
28
29
30
31
32
33
34
35
case law references.
See also what PME has based its claim on, which is apparent from legal ground. 4.2 of it
contested judgment: “(…) [plaintiff] has always denied this agreement and did not want to enable PME
to sell the project, which meant that PME could not collect the associated brokerage fee. So [plaintiff] is
has failed to fulfill its obligations under the agreement. [plaintiff] must under
of the conversion statement issued by PME, reimburse the value of the missed performance. That
value consists of the amount of the brokerage fees owed, minus the costs that PME would
incurred in the execution of the sales order. (…)”
HR April 26, 2002, ECLI:NL:HR:2002:AD9339, NJ 2004/210 m.nt. Jac. Hijma ([…] / […]), para. 3.4.2.
See thus Asser/C.H. Sieburgh, Part 6-I. The obligation in general, first part, Deventer:
Wolters Kluwer 2020, no. 403, with reference to Jac. Hijma in his note to HR 26 April 2002,
ECLI:NL:HR:2002:AD9339, NJ 2004/210 ([…] / […]). Hijma in turn refers to G.J. Squeeze,
'The abstract nature of compensatory damages. HR 26 April 2002, RvdW 2002, 74', NbBW
2002, p. 76 et seq. See also recently A-G Lindenbergh in his conclusion (ECLI:NL:PHR:2022:913,
marginal 4.57) for HR 27 January 2023, ECLI:NL:HR:2023:99, RvdW 2023/166 (Anjelier/ […]) (art.
81 RO).
See the locations mentioned in the previous footnote.
See again Jac. Hijma in his note (under 4) to HR 26 April 2002, ECLI:NL:HR:2002:AD9339, NJ
2004/210 ([…] / […]), in which he explained that limited field of vision as follows: “Replacement
compensation does not relate to the creditor's assets in a general sense, but aims at substitution
of one specific asset (in this case: the claim for the execution of the agreed
restoration work). The appreciation of that specific loss is, by its nature, separate from the
vicissitudes of the property to which the promised performance – coincidentally – relates.” See
also paragraphs 2.8-2.12 of the conclusion of A-G Keus (ECLI:NL:PHR:2002:AD9339) for
that judgment.
As an aside, I note that the court did not order € 186,400, but € 189,600 in sales costs
deducted (the difference of € 3,200 relates to sales costs for the four commercial
spaces, as evidenced by legal notice. 2.35. of the final judgment).
See for example HR 8 July 2016, ECLI:NL:HR:2016:1483, NJ 2017/262 m.nt. S.D. Lindenbergh and J.S.
Kortmann, Ars Aequi 2017, p. 41 ff. m.t. W.H. van Boom, JOR 2016/332 m.nt. M.M.C. of the Moosdijk
and NTE 2016/48 m.nt. I. Brinkman & L. Baljon (Tennet/ABB), para. 4.4.4. See for further references
GS Damages, art. 6:97 BW (current until July 15, 2022), no. 2 (S.D. Lindenbergh).
See for example my conclusion (ECLI:PHR:2021:845, marginal 3.7) for HR February 18, 2022,
ECLI:NL:HR:2022:272, NJ 2022/91 and JA 2022/63 m.t. E.W. van Bosch, with further
case law references in footnote 34 there.
Also compare, for example, the conclusion of A-G Van Peursem (ECLI:NL:PHR:2018:421, marginal
2.3) for HR 7 September 2018, ECLI:NL:HR:2018:1435, NJ 2018/378 and JIN 2018/187 m.nt. R.A.G. the
Vaan (WEA), in which he noted, among other things: “In my impression, you can also see it this way that there is no
there is a strict hierarchy between concrete/abstract on the one hand and estimation on the other, but that with both
concrete as well as an abstract damage estimate, an estimate is sometimes necessary and possible.” In the present case
This therefore concerns estimates in the context of a concrete damage estimate.
For further information on this distinction, see D.L. Barbiers, 'Dogmatic integration and justification of
abstract estimate of financial damage', NTBR 2022, p. 313 et seq.
See for example my conclusion (ECLI:PHR:2021:845, marginal 3.6) for HR February 18, 2022,
ECLI:NL:HR:2022:272, NJ 2022/91 and JA 2022/63 m.t. E.W. from Bosch.
Ditto, with references in footnote 28 there.
See about this in the context of art. 21 Rv and art. 22 Rv for example T.F.E. Tjong Tjin Tai,
Damage assessment, Nijmegen: Ars Aequi Libri 2017, p. 92.
See also Asser Verbintenissenrecht/C.H. Sieburgh, Part 6-II. The commitment in general, second
section, Deventer: Wolters Kluwer 2021, no. 33: “However, an accurate calculation is in many cases
not possible. In particular, when determining the damage due to lost profits, this will not be determined with certainty
36
37
38
39
40
41
42
43
44
45
46
47
48
49
can be determined, a probability calculation will be necessary. However, this calculation will also
established facts should be used as much as possible.”
Compare, for example, HR 15 September 2017, ECLI:NL:HR:2017:2372, RvdW 2017/953 (Coop), para.
4.1.2: “(…) The court has found that [plaintiff] has not explained or substantiated at all
why he did not receive any income in the first period mentioned, nor from what he received in that period
lived, while that would have been obvious after the fourth interim arrest. The court then
for this period, the average entrepreneur's wage stated by the expert will still be included in the calculation
involved to estimate the damage suffered by [plaintiff] as a result of the dissolution.
That the court linked this estimate as a consequence to the lack of verifiable data
income data for the period mentioned, partly in the light of what [plaintiff] according to para. 2.13
of the fourth interim judgment (...) should have provided data, not incomprehensible. In that same light
there is no question of a surprise decision. (…)”
CJEU March 2, 2023, ECLI:EU:C:2023:145, AB 2023/175 m.nt. L.C. Drechsler and JBP 2023/67 m.nt.
K. Konings (Norra Stockholm Bygg), points 48-53.
See about the relevant applicable provision of the Swedish Civil Code
legal proceedings CJEU 2 March 2023, ECLI:EU:C:2023:145, AB 2023/175 m.nt. L.C. Drechsler and JBP
2023/67 m.t. K. Konings (Norra Stockholm Bygg), points 9-12.
On the main proceedings in Sweden and the preliminary questions from the referring court, see CJEU 2
March 2023, ECLI:EU:C:2023:145, AB 2023/175 m.t. L.C. Drechsler and JBP 2023/67 m.nt. K. Konings
(Norra Stockholm Bygg), points 15-24.
According to K. Konings in his annotation under the judgment in JBP 2023/67, p. 519-520.
See in the context of art. 843a Rv for example Rb. Overijssel August 23, 2023,
ECLI:NL:RBOVE:2023:3436.
I note that the relevant black-lacquered deeds are only available at the court on a USB stick (exhibit
12 in the statement of appeal) have been submitted. I did not find the USB stick in question
in the case file submitted by [plaintiff] in cassation (PME did not appear in cassation, against
she was granted default, see marginal 2.22 above). At the request of the registry of the Supreme Court
the relevant (password-protected) USB stick was received by [plaintiff] on October 3, 2023
forwarded. In the accompanying letter of October 3, 2023, the cassation lawyer of
[plaintiff] noted: “We have not been able to verify whether the USB stick is actually yours
sent."
The subsection also does not refer to places in the case documents where PME in fact
authorities rely on art. 5 (1) (c) GDPR would have done. In marginal number 23 of the
In the statement of appeal it is stated that the passages in question are “[for] privacy reasons”.
painted black (see marginal 3.20 above), during the hearing on appeal, recognizable from the
official report “[because] of the GDPR” (see marginal 3.26 above).
This provision obliges the parties to fully and accurately disclose the facts relevant to the decision
to prove the truth and stipulates that if this obligation is not complied with, the judge will
can draw the conclusion he deems appropriate.
R.H. de Bock, Between truth and uncertainty: about establishing facts in civil proceedings,
diss., Deventer: Kluwer 2011, p. 163-164.
Parliamentary Papers II 2019-2020, 35498, no. 2 (Article 1, part B).
Parliamentary Papers II 2019-2020, 35498, no. 3, p. 33.
The relevant list of decisions can be consulted via
www.tweedekamer.nl/kamerstuks/wetsvoorstellen/detail?
cfg=bill details&qry=bill%3A35498 (agenda item 5). The bill is earlier
has also been declared controversial, see the List of controversial topics
as established by the House on June 22, 2021, known from Parliamentary Papers II 2020-2021, 35718, no.
58, p. 11.
For the sake of completeness, I note that it is assumed in the literature that the proposed art. 22 member
7 Rv can already be applied by analogy. See in this sentence (focusing on the short
proceedings) Asser Procedural Law/R.J.B. Boonekamp, Part 6. The summary proceedings, Deventer: Wolters Kluwer 2020,
no. 93 (cited in marginal 53 of the written explanation). That the bill does not
has no longer been declared controversial (see paragraph 3.63 above) in any case no longer appears to be a contraindication for such an anticipatory application.