RvS - 202001629/2/A3

RvS - 202001629/2/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:
Decided:	12.6.2020
Published:	17.7.2020
Parties:	Autoriteit Persoonsgegevens
National Case Number/Name:	202001629/2/A3
European Case Law Identifier:	ECLI:NL:RVS:2020:1379
Appeal from:
Appeal to:
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The preliminary relief judge of Council of State declared unfounded the applicant’s request to urgently force Autoriteit Persoonsgegevens (Dutch DPA) to investigate the abolishing by the European travel companies of the so-called ATB ticketing system. Applicant finds that it should be possible to buy international train tickets without having to provide personal data.

English Summary

Facts

On 12 November 2018 Autoriteit Persoonsgegevens (Dutch DPA) rejected the applicant’s request for enforcement. On 12 June 2019 the DPA declared applicant’s objection invalid. On 4 February 2020 the court dismissed the applicant’s appeal. Applicant is now appealing this Court decision before the preliminary relief judge of the Council of State.

Dispute

Applicant is asking the preliminary relief judge to urgently order DPA to: a) Notify relevant transportation companies in the European Union that they can start an investigation into the decommissioning of the ATB system and request these companies to continue supporting the system; b) Investigate the historical and current facts behind the decommissioning; c) Prevent further decommissioning if the investigation shows that the ATB system is being dismantled; d) Report the outcome of the investigation for the Court to use in the main proceedings.

Dutch DPA is of the opinion that NS (Dutch public transportation company the applicant complained about) did not violate GDPR, so the enforcement is rejected. Moreover, according to the DPA, the applicant’s enforcement request only concerns cases where NS acts as a controller, which means it only applies to situations where NS sells its own tickets and not international tickets of other companies.

Holding

The preliminary relief judge cannot order DPA to investigate the decommissioning of the ATB system because the judge cannot be sure that the DPA will get the same order as the result of the main proceedings.

The judge founds it important that the ATB system stayed in use until the end of 2019, so it was possible to buy such ticket at the time of the applicant’s objection to the DPA. Also, Dutch DPA’s enforcement powers regarding foreign transportation companies would need to be considered separately as NS is indeed acting as a processor to those companies.

Lastly, the preliminary relief judge did not agree that the dissemination of the ATB system would be irreversible. If at any point NS is found violating the GDPR by not offering an option to buy tickets without providing personal data, it will be the obligation of NS to provide a solution.

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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.

Council of State
Date of pronunciation
    12-06-2020
Date of publication
    17-06-2020 
Case number
    202001629/2/A3
Jurisdictions
    Administrative law
Special features
    Provisional provision
Content indication

    By decision of 12 November 2018, the Authority for Personal Data rejected a request by [the applicant] to maintain it. [applicant] considers that it should be possible to purchase a ticket for an international rail journey without having to provide any personal data. He states in his request for enforcement that this is very difficult in practice, because personal data - including at least the name - is requested by default when buying a ticket.
Sites
    Rechtspraak.nl
    Enriched pronunciation 

Ruling

202001629/2/A3.

Date of judgment: 12 June 2020

SECTION

ADMINISTRATIVE LAW

A decision by the interim relief judge of the Administrative Jurisdiction Division of the Council of State on an application for interim relief (article 8:81 of the General Administrative Law Act) pending the appeal of the Council of State:

[applicant], residing at [residence],

against the judgment of the District Court of Gelderland of 4 February 2020 in Case No 19/3510 in the proceedings between:

[applicant]

and

the Personal Data Authority (hereinafter AP).

Process flow

By decision of 12 November 2018, the AP rejected an application by [the applicant] for maintenance.

By decision of 12 June 2019, the AP dismissed [the applicant's] objection to that decision as unfounded.

By decision of 4 February 2020, the District Court dismissed [the applicant's] appeal against that decision as unfounded.

The applicant has lodged an appeal against this decision.

[the applicant] requested the Court in preliminary relief proceedings to make an interim injunction.

The AP and NS Groep N.V. provided a written explanation.

The applicant has submitted further documents.

Considerations

1.    The judgment of the Court in preliminary relief proceedings is provisional in nature and is not binding in the proceedings on the merits.

Omission of hearing

2.    The parties had been summoned to a hearing of the Court in preliminary relief proceedings on 30 April 2020.

    In a letter dated 7 April 2020, [the applicant] requested that, in view of the nature and urgency of his request, the hearing should take place, even if he could not attend, for example due to the measures and guidelines of the government to prevent the spread of the coronavirus. [applicant] has argued that the corona crisis gives his application an extra urgent character.

    By letter of 18 April 2020, sent from Finland, [the applicant] stated that he was prevented from attending the hearing as a result of the corona crisis. He reiterated his preference for the hearing to take place.

    Due to the measures taken to prevent the spread of the coronavirus, the hearing did not take place. The parties were informed accordingly. The Court in preliminary relief proceedings then gave the parties the opportunity to comment on the intention to rule on the request at the hearing without hearing. At the same time, NS was asked three factual questions. NS answered these questions and provided a written explanation. The General Court provided a written explanation in which it stated that it did not consider it necessary to adjudicate at the hearing. The [applicant] responded to the written explanations given by NS and the AP.

    On the basis of the documents available, the Court in preliminary relief proceedings considered itself sufficiently well informed to be able to rule on the application for interim relief. In view of the obstacles and delays that have arisen in the progress of the hearing schedule as a result of the coronary measures taken, and now that none of the parties has indicated that a hearing is necessary, while [the applicant] considers his application urgent and has stated that the application may also be dealt with without his presence, in the opinion of the Interim Injunction Judge the parties will not be harmed in their interests if the application is not dealt with at the hearing. Therefore, pursuant to Section 8:83(4) of the General Administrative Law Act, the Interim Injunction Judge will rule without a hearing.

Enforcement request of [the applicant]

3.    By letter dated 9 July 2018, [applicant] submitted an application for enforcement to the AP. The introduction to this state:

"Partly with reference to my previous enforcement requests concerning privacy violations by NS [...] and partly with reference to Articles 6, 7, 15, 17, 18, 21, 25, 29, 51, 52, 57, 58, 77, 78 and 83 (in particular also point 2.e) of the latter Article) of the General Data Protection Regulation (AVG), I request you to investigate the following breaches of privacy by Nederlandse Spoorwegen (NS) that I have identified and to end them by means of enforcement measures:

[…]

2. Attempt to mislead me as a customer that identification would be required when purchasing tickets at the station desk for all international train journeys within the EU;

[…]"

4.    The [applicant] considers that it should be possible to purchase a ticket for an international rail journey without having to provide any personal data. He states in his request for enforcement that this is very difficult in practice, as personal data - including at least the name - are requested by default when buying a ticket.

Decisions AP

5.    The AP took the position that NS did not violate the General Data Protection Regulation ('the AVG') when selling international tickets. The AP therefore rejected this part of the enforcement request. The AP did not take a position on NS's sale of tickets for transport to be performed by third parties. According to the AP, the enforcement request of [the applicant] only relates to cases in which NS is the controller and not to cases in which NS is the processor. In other words, according to the AP, the enforcement request only relates to cases in which NS sells its own tickets, not to cases in which NS sells tickets of foreign transport companies.

Application for interim relief

6.    The reason for [the applicant] to submit a request for interim relief is that, since the end of 2019, it has no longer been possible to purchase so-called ATB tickets. These were international tickets printed on paper. An ATB ticket could be purchased at a service desk at the station without providing personal details. According to [applicant], there is no privacy-friendly alternative to ATB tickets. With its request for a provisional provision, it aims to prevent the ATB ticketing system (hereinafter: the ATB system) from being technically dismantled or further dismantled.

    The [applicant] requested the Court in preliminary relief proceedings to give the AP four orders:

(i) Inform all relevant transport undertakings in the European Union that the PPC may start an investigation into the admissibility of decommissioning the ATB system in the near future and urge those transport undertakings not to technically dismantle or further dismantle the ATB system before a decision has been taken to start an investigation by the PPC;

(ii) Investigate the historical and current facts regarding the abolition, decommissioning and technical dismantling of the ATB system;

(iii) If the AP's investigation shows that there is a risk at one or more of the transport companies that the ATB system will be fully or partially dismantled in a non-reversible or difficult way prior to the Division's decision in the proceedings on the merits, take enforcement measures to prevent such dismantling;

(iv) report the results of the investigation to the Division so that a response can be given to this in the proceedings on the merits.

Assessment of request

7.    So far, the AP has not investigated the decommissioning of the ATB system in these proceedings. Nor has the AP conducted any investigation into the sale by NS of international tickets of foreign transport companies, in which NS is the processor of personal data. In that light, it is far-reaching, as [the applicant] requests, to have the AP conduct an investigation into the decommissioning of the ATB system by both NS and foreign transport companies pending the appeal. There is only reason to make this far-reaching provision if the Court in preliminary relief proceedings is convinced in advance that the outcome of the proceedings on the merits will be that the General Court has wrongfully failed to investigate these cases. The Court in preliminary relief proceedings does not have this conviction. To this end it is important to note that, as is not in dispute, the ATB system was only decommissioned at the end of 2019. However, the decision on the objection had already been taken earlier, i.e. on 12 June 2019. At the time of that decision it was therefore possible to purchase an ATB ticket. The fact that [the applicant] lodged an objection that, according to a desk clerk, the ATB system was going to disappear and that, he assumes, the decommissioning of the ATB system might already have been prepared at the time of the decision of 12 June 2019, is insufficient to consider in advance that it will be ruled in the proceedings on the merits that the AP should have investigated the decommissioning of the ATB system at the time the decision on the objection was taken. It is also important to note that the request for enforcement by [the applicant] and the events described therein with respect to the purchase of international transport tickets do not give cause to consider in advance beyond doubt that the request for enforcement, contrary to what the court has considered, also relates to NS's actions as processor on behalf of foreign transport companies. If it were to be ruled that the request for enforcement should nevertheless have been interpreted more broadly, it would then still have to be assessed to what extent the AP's enforcement powers extend to the foreign transport companies involved. This requires further investigation, for which this provisional provision procedure does not lend itself.

8.    In addition, the Court in preliminary relief proceedings did not follow [the applicant] in its assertion that an irreversible situation would arise if the ATB system were to be dismantled further. If, at any point in time, it were to be ruled that NS is acting in violation of the AVG by not offering the possibility to purchase international tickets without providing personal data, NS would be obliged to ensure that this possibility would still be offered. The fact that this may require more drastic changes to the systems and larger associated investments if the ATB system is largely or entirely dismantled is at NS's risk. However, it does not ensure that this possibility can no longer be realised after the ATB system has been dismantled. In this respect, the Division takes into account that NS has stated that, even if the ATB system is not dismantled, substantial investments must be made in order to be able to continue using this system.

Conclusion

9.    In view of this, the request for interim relief should be rejected.

10.    There are no grounds for an order as to costs.

Decision

The Interim Injunction Judge of the Administrative Jurisdiction Division of the Council of State:

Dismisses the application.

Thus determined by J.A.W. Scholten-Hinloopen, judge in preliminary relief proceedings, in the presence of H. Herweijer, registrar.

The judge in preliminary relief proceedings is prevented from signing the decision.   

w.g. Herweijer

court clerk

Pronounced in public on 12 June 2020

640.