RvS (Netherlands) - 202004638/1/A3

RvS (Netherlands) - 202004638/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(e) GDPR Article 6(4) GDPR
Decided:	22.09.2021
Published:	22.09.2021
Parties:	Minister of Agriculture, Nature and Food Quality
National Case Number/Name:	202004638/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2021:2129
Appeal from:	Rb. Zeeland-West-Brabant (Netherlands) AWB-19 5211
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	Frederick Antonovics

The Dutch Council of State allowed an appeal by the owner of an arable farm against the Minister of Agriculture, Nature and Food Quality. It held that the transfer of the appellant's personal data to the Sector Organisation for Arable Farming constituted unlawful further processing of data gathered exclusively for an agricultural census.

English Summary

Facts

The appellant is the owner of an arable farm ('the partnership'). The defendant is the Minister of Agriculture, Nature and Food Quality.

The Minister informed the partnership that its name, address details and so-called Chamber of Commerce number will be passed on to the Sector Organisation for Arable Farming and that the partnership can object to this on the basis of the GDPR. The Minister wished to provide this information from the partnership to the Sector Organisation for Arable Farming so that it could implement a 'Joint Research and Innovation Programme', as part of which agricultural companies are required to register and make financial contributions.

The partnership requested that its data not be passed on. They believed that the transfer of her data was contrary to the GDPR, because she did not consent to it. The information had originally been collected as part of an annual report about agricultural and technical data that is mandatory for the appellant's company. As part of that report, it explicitly denied permission to transfer data to "trade associations".

The court in this appeal had to determine whether the Minister may pass on this information about the partnership to the Sector Organisation for Arable Farming.

Holding

The court in turn assessed the lawfulness of (1) the original processing and (2) all further processing.

(1) The original processing consisted of the Minister obtaining the agricultural and technical data of the partnership per Article 24 of the Agriculture Act in order to carry out a task of public interest as referred to in Article 6(1)(e) GDPR. The purpose of collecting this agricultural and technical data is the agricultural census, which describes the structure of the Dutch agricultural sector for the purpose of research and the development of policy. Of the data obtained for this purpose, the minister only wants to pass on the name, address and so-called Chamber of Commerce number of the partnership to the Sector Organisation for Arable Farming.

The court found this processing to be lawful.

(2) The purpose of passing on the data of the partnership was to make it easier for the 'Brancheorganisatie Akkerbouw' to register companies and to collect the financial contributions used to finance its research within the framework of the Joint Program of arable farmers. The court highlighted it was not disputed that this is a different purpose than the purpose for which the Minister originally obtained and processed this data. No consent had been given for this processing.

The court held this further processing to be unlawful, as it was incompatible with the initial purpose for which the appellant's personal data had been collected. It allowed the appeal and overturned the original judgment.

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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.

                                
                            
        



    Body
    Council of State
    Date of judgment
    22-09-2021

    Date of publication
    
22-09-2021

    Case number
    
202004638/1/A3

    
            Formal Relationships
            
First instance: ECLI:NL:RBZWB:2020:3218, (Partial) destruction and self-dismissed
            
    Jurisdictions
    
Administrative law
    
    Special characteristics
    
Appeal
    
    Content indication
    
By decision of 31 October 2018, the Minister of Agriculture, Nature and Food Quality rejected the partnership's request not to pass on its data to the Arable Farming Branch Organization. The Minister has informed the partnership that its name, address and so-called Chamber of Commerce number will be passed on to the Arable Farming Branch Organization and that the partnership can object to this on the basis of the General Data Processing Regulation. The minister wants to provide this information from the partnership to the Arable Farming Sector Organization so that it can implement the so-called Joint Research and Innovation Programme. The partnership then requested not to pass on its details. She believes that passing on her data is contrary to the GDPR, because she has not given permission for this. In this case it is disputed whether the minister may pass on this information about the partnership to the Brancheorganisation Akkerbouw.

    Locations
    
Rechtspraak.nl
    
        
        
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        202004638/1/A3.Date of judgment: September 22, 2021DEPARTMENT OF ADMINISTRATIVE JURISDICTION.Judgment on the appeal of: [appellant], established in [place of residence], against the judgment of the Zeeland-West-Brabant District Court of 21 July 2020 in case no. 19/5211 in the dispute between: the social minister of Agriculture, Nature and Food Quality. Process By decision of 31 October 2018, the minister rejected the partnership's request not to pass on its data to the Brancheorganisation Akkerbouw. By decision of 5 September 2019, the Minister declared the objection lodged by the partnership unfounded. By decision of 21 July 2020, the court declared the appeal lodged by the partnership unfounded. This judgment has been attached. The partnership has lodged an appeal against this decision. The minister has given a written explanation. The Division heard the case on 19 March 2021, where the partnership, represented by [maat 1] and [maat 2 ], and the Minister, represented by Mr. WLC Rijk, who works for the Netherlands Enterprise Agency, have appeared. The Department has reopened the investigation into the case. The parties have given permission for a further hearing to be omitted. The Division subsequently closed the investigation.ConsiderationsIntroduction1. The relevant legal framework is included in the appendix to this ruling. The appendix is part of the decision.2. The Minister has notified the partnership that its name, address and so-called Chamber of Commerce number will be passed on to the Akkerbouw Brancheorganisation, and that the partnership can object to this under the General Data Processing Regulation (EU) 2016/679 (hereinafter: the AVG). . The minister wants to provide this information from the partnership to the Arable Farming Sector Organization so that it can implement the so-called Joint Research and Innovation Program (hereinafter: the Joint Programme). The partnership then requested not to pass on its details. She believes that passing on her data is contrary to the GDPR, because she has not given permission for this.3. In this case it is disputed whether the minister may pass on this information about the partnership to the Brancheorganisation Akkerbouw.Background4. At the request of the Arable Farming Sector Organization, the Minister of Economic Affairs has declared the conduct of investigations for the implementation of the Joint Program binding. The Minister's authority to do this is based on Regulation (EU) No 1308/2013 of the European Parliament and of the Council (hereinafter: the Regulation). The Joint Program provides for research, innovation and knowledge dissemination on cross-crop topics . The Financial Contribution Regulations and the Registration and Data Provision Regulations 2016-2020 are part of the Joint Programme. These regulations include an obligation to make a financial contribution and the necessary obligation to register and provide data. The financial contributions are necessary to pay for the research. Using the provisions of Article 165 of the Regulation, the Minister of Economic Affairs has decided that these regulations also apply to companies that are not affiliated with the Arable Farming Sector Organization. The partnership has an arable farm. It therefore falls under the Financial Contribution Regulation and the Registration and Data Provision Regulation, despite the fact that it is not a member of the Arable Farming Sector Organization or the sector organizations that fall under it.5. Pursuant to Article 24, second paragraph, of the Agriculture Act, the partnership is obliged to annually report agricultural and technical data about its business to the Minister. The minister needs this data for the agricultural census. The partnership has provided this information to the minister in the so-called 2018 Combined Statement. In that Combined Statement she asked the question "Would you like to authorize one or more trade associations to receive data from you?" answered with "No, I do not authorize".Decisions6. The minister has taken the position that he may not provide the so-called acreage data to the Brancheorganisation Akkerbouw without the permission of the partnership, but that he is allowed to do so for the name, address details and the Chamber of Commerce number. According to the minister, the reason for this is that the Arable Farming Sector Organization must be able to implement the regulations that have been declared generally binding. Without this information, the Arable Farming Sector Organization cannot point out to all arable farmers their registration obligation and cannot impose and collect the compulsory financial contribution from them. On the other hand, according to the minister, the partnership can benefit from the results of the investigations. The Minister therefore believes that the provision of the Chamber of Commerce number and the name and address details is compatible with the purposes of processing this data for the Combined Statement. The Minister confirmed during the appeal hearing that the details of the partnership in pending this procedure have not yet been passed on to the Arable Farming Branch Organization. Attacked verdict7. The court has seen no reason to declare the Registration and Data Provision Regulations non-binding. With regard to the exceeding of the decision period, the court has considered that the partnership has not used legal remedies against it, while it could have done so. According to the court, becoming a member of the Brancheorganisation Akkerbouw lacks factual basis. The Financial Contribution Scheme provides for an obligation to contribute financially to the Joint Program and is not a membership fee. in the public interest or of a task in the exercise of official authority conferred on the controller. The Arable Farming Sector Organization needs the data for the implementation of the regulations. Although this is a different purpose than the purpose for which the minister obtained the data, the court finds that these goals are compatible. The court correctly assumed that in this case the decision of the minister of 31 October 2018, rejecting the partnership's request not to pass on personal data to a third party without its consent, constitutes a decision within the meaning of the General Administrative Law Act is, against which, after an objection, an appeal is open to the administrative court. After all, this decision by the minister means that the partnership must, in its opinion, tolerate passing on its data to a third party in violation of the GDPR. In this case, in the opinion of the Division, this decision can be equated with a written decision taken by an administrative body as referred to in Article 34 of the GDPR Implementation Act, which can also be appealed to the administrative court. The Division considers this to be in the interest of a concentration of legal protection and also in the interest of effective and effective legal protection. Consent9. The partnership disagrees with the statement. The court did not correctly or fully understand its position. This position means that she believes that the minister should not share her data with the Arable Farming Branch Organization because she has not given permission for this. She also believes that the distinction between data that can and data that cannot be passed on is not clear.9.1. The partnership's assumption that personal data can never be processed without permission is not in accordance with the GDPR. Article 6 of the GDPR also includes other legal bases for the processing of personal data than the processing of personal data with the consent of the data subject. Those other processing bases can also be used as the basis for the processing if consent has been refused. In this case, the minister wishes to process the data on such a different basis, namely the basis referred to under e. The lawful use of this basis does not require permission from the partnership. The minister has made a distinction between so-called area data and information about the name, address and Chamber of Commerce number of the partnership. According to the minister, the area data cannot be processed on any other basis than with the consent of the person concerned. Due to the lack of permission for this from the partnership, this data will not be passed on to the Brancheorganisation Akkerbouw. According to the minister, there is a different processing basis for the provision of the name, address and Chamber of Commerce number to the Arable Farming Branch Organization, because the Arable Farming Sector Organization needs this information to contact the partnership in the context of the implementation of the Joint program. In the opinion of the Division, the Minister has sufficiently clarified this distinction in his decision of 31 October 2018. Can the regulations be challenged in these proceedings?10. The partnership further argues that nothing has been done with the view it submitted as a result of the internet consultation about the Financial Contribution Regulation and the Registration and Data Provision Regulation 2016-2020.10.1. In the opinion of the Division, no opinion can be given in these proceedings about any shortcomings in the procedure for declaring the regulations universally binding by the Minister of Economic Affairs, and therefore also not whether the regulations themselves should be declared non-binding or in these regulations. procedure must be disregarded. After a request for exemption from the provisions of the Registration and Data Provision Regulations 2016-2020, the partnership may contact the sector organizations that are affiliated with the Branche organization Arable Farming, or after refusing payment in proceedings against the Branch Organization Arable Farming can challenge the applicability of the regulations in civil court. Exceeding the decision period11. The partnership believes that the court erred in not attaching any consequences to exceeding the decision period in the objection.11.1. As the court rightly considered, the partnership could have used legal remedies if the minister exceeded the decision period even after the extensions. For example, she could have lodged an appeal with the court against the failure to make a decision on the objection. The partnership has not done that. Under those circumstances, the court was not required to attach any consequences to exceeding the term. According to the partnership, the court failed to recognize that providing its data results in it being obliged to become a member of the Brancheorganisation Akkerbouw.12.1. In the opinion of the Division, the court rightly considered that the partnership is not obliged to become a member of the Brancheorganisation Akkerbouw. The fact that it has to provide data and pay a financial contribution is the result of the regulations being made universally binding for all arable farms. The fact that the Branche organization Akkerbouw is an association does not mean that the financial contribution should be regarded as membership fee. Her argument about the contradiction of compulsory membership of an association therefore does not need to be discussed further and fails. The lawfulness of the processing13. The partnership disputes that it benefits from the investigations of the Brancheorganisation Akkerbouw. Moreover, the provision of its data to this Trade Association is not a task of general interest that is necessary for the performance of a public task of the Minister. The passing on of her data is therefore not allowed, according to her. Providing this information to a third party violates the partners' right to privacy, also because the registered office address of the partnership is also their home address. The partnership also believes that it has sufficiently substantiated its interests in not passing on its data and why these should outweigh the interests of the minister. - The original processing13.1. The Division establishes that the minister has obtained the agricultural and technical data from the partnership in order to perform a task in the public interest as referred to in Article 6, first paragraph, opening words and under e, of the GDPR. This task is laid down in the Agriculture Act. Pursuant to Article 24 of that Act, the Minister may issue or send description notes to those whose main livelihood is in agriculture, intended to provide a statement of the agricultural and technical data of their enterprises. The person to whom a description note has been issued or sent, as in this case to the partnership, is obliged to make this statement, as the partnership has also done. The purpose of collecting this agricultural and technical data is the agricultural census. The agricultural census provides a description of the structure of the Dutch agricultural sector (data on companies, livestock, crops and special subjects) for the purpose of (statistical) research and policy development. Minister only pass on the name, address and so-called Chamber of Commerce number of the partnership to the Brancheorganisation Akkerbouw. The Minister obtained this information in her contact with the company with a view to the purpose of the agricultural census. - Further processing13.2. Personal data may be further processed for the same purpose or for a different purpose. The further processing of the personal data for another purpose must comply with Article 6(4) of the GDPR. As the Division previously ruled (see the judgment of 30 September 2020, ECLI:NL:RVS:2020:2316), this paragraph must be interpreted strictly because it formulates an exception to the so-called purpose limitation principle of Article 5, first paragraph, preamble. and under b of the GDPR. Article 6(4) of the GDPR states that further processing for another purpose is only lawful if the data subject has given his/her consent, if the further processing is based on a provision of Union or Member State law or if the purpose of that further processing is compatible. is for the purpose of the initial processing. In order to assess whether the objectives are compatible, a number of criteria, which are not intended to be exhaustive, are mentioned in the fourth paragraph that must be taken into account. In the opinion of the Division, it must also be considered whether the new purpose is sufficiently related to the basis of the original processing. Support for this judgment is provided by recital 50 of the preamble to the GDPR. It states that the processing of personal data for purposes other than those for which the personal data were initially collected should only be permitted if the processing is compatible with the purposes for which the personal data were initially collected. In that case, no separate legal ground other than that on which the collection of personal data was allowed is required. In order to verify whether a purpose of further processing is compatible with the purpose for which the personal data were initially collected, the controller should, after having fulfilled all the requirements regarding the lawfulness of the original processing, take into account, inter alia, any link between those purposes and the purposes of the intended further processing, the context in which the data was collected and the reasonable expectations of the data subjects based on their relationship with the controller regarding its further use. Furthermore, Article 6(4)(a) of the GDPR emphasizes the relevance of the relationship between the purposes for which the data has been processed and the purposes of the further processing. - What is the purpose of the further processing in this case? 13.3. The purpose of passing on the details of the partnership is to make it easier for the Arable Farming Branch Organization to register the company and to collect the financial contribution that is used to pay for its research within the framework of the Joint Program of Arable Farmers. . It is not in dispute that this is a purpose other than the purpose for which the minister originally obtained and processed this data. - Is the further processing lawful? 13.4. The Minister has established that no permission has been given for the further processing and that the further processing is not based on a provision of Union or Member State law as referred to in the preamble of Article 6(4) of the GDPR. The Minister has therefore rightly assessed whether the purpose of the further processing is compatible with the purpose of the processing for which the personal data were collected. In doing so, he has taken into account the aspects referred to in Article 6(4)(a) to (e) of the GDPR and has taken the view that the further processing complies with them in this case. In the opinion of the Division, the Minister has wrongly taken this position. The Division considers the following important for this. It has not been shown that the Brancheorganisation Akkerbouw has been assigned a (part of a) task of general interest in the context of agriculture. To the extent that this is the case, the Minister has not made clear that he bears a certain degree of responsibility for the way in which the Arable Farming Sector Organization carries out its activities, nor whether and how it supervises this. This does not change the fact that the Minister of Economic Affairs has taken the position that the investigations to be carried out under the Joint Program are of general economic interest. It should be noted here that the purpose of further processing is to simplify the registration and collection of the financial contribution under the Joint Program and that this purpose is not in line with the purpose for which the data was collected, namely the agricultural census of Article 24, second paragraph of the Agriculture Act. All in all, it has not been established that there is a sufficient connection within the meaning of Article 6(4)(a) of the GDPR between the purpose for which the data was collected and the purpose of the intended further processing. Furthermore, the general binding declaration of the Regulations only stipulates that the Arable Farming Branch Organization is permitted to register non-members and to oblige them to make a financial contribution. It does not include how the data required for registration and collection can be obtained. Against this background, it cannot be stated that the further processing fits within the framework for which the data was collected, as referred to in Article 6(4)(b) of the GDPR. It follows from this that the minister has not made it clear that the purpose of the further processing is in line with the purpose for the original processing of the data that the minister has collected on the basis of his general task under the Agriculture Act. The connection between the two purposes has not been made plausible. In view of this deficiency, in the light of Article 6(4)(d) of the GDPR, the interest of the partnership opposes the provision of the data to the Brancheorganisation Akkerbouw. Because passing on the details of the partnership to the Brancheorganisation Akkerbouw cannot be regarded as lawful processing that is compatible with the initial purpose, this processing by the minister is not lawful. The court has not recognized this. Conclusion14. The appeal is upheld. The impugned judgment must be quashed. Doing what the court should do, the Division will still declare the appeal against the minister's decision of 5 September 2019 well-founded. That decision qualifies for annulment because of Article 6, first paragraph, preamble and under e, of the GDPR, read in conjunction with Article 6, fourth paragraph, of the GDPR. The Department will provide for the case in a manner to be reported. The primary decision of October 31, 2018 will be revoked. The Division will determine that this ruling will replace the annulled decision. This ruling has no consequences for obligations arising for the partnership from the declaration of binding force of the Joint Program and the Financial Contribution Regulation and the Registration and Data Provision Regulation 2016-2020 by the Minister of Economic Affairs by decision of 29 April 2016 (Government Gazette 2016, 23394).15. The minister is not required to reimburse legal costs. Decision The Administrative Jurisdiction Division of the Council of State:I. declares the appeal well founded;II. annuls the decision of the Zeeland-West-Brabant District Court of 21 July 2020 in case no. 19/5211;III. declares the appeal lodged with the court to be well founded; IV. nullifies the decision of the Minister of Agriculture, Nature and Food Quality of September 5, 2019, reference 494-30566;V. revokes the decision of 31 October 2018, reference AVG2018_031;VI. determines that this decision shall replace the annulled decision;VII. ordered that the Minister of Agriculture, Nature and Food Quality reimburse [appellant] the court fee paid by her in the amount of €877.00 (in words: eight hundred and seventy-seven euros) for the handling of the appeal and the appeal. Scholten-Hinloopen, chairman, and mr. J.W. van de Gronden and mr. E.J. Daalder, members, in the presence of mr. S.C. van Tuyll van Serooskerken, clerk of the court. The chairman was unable to sign the decision. w.g. Van Tuyll van Serooskerk RegistrarPronounced in public on September 22, 2021290.Sent: September 22, 2021APPENDIXAVGArticle 6: Lawfulness of the processing1. The processing is only lawful if and insofar as at least one of the following conditions is met: a. […]e. the processing is necessary for the performance of a task carried out in the public interest or of a task in the exercise of official authority entrusted to the controller; f. […].2. Member States may maintain or introduce more specific provisions to adapt the way in which the rules of this Regulation relating to processing for the purposes of compliance with paragraph 1(c) and (e) are applied; to this end, they may provide a more detailed description of specific processing rules and other measures to ensure lawful and proper processing, including for other specific processing situations as referred to in Chapter IX.3. The legal basis for the processing referred to in points (c) and (e) of paragraph 1 shall be determined by: (a) Union law; or (b) Member State law to which the controller is subject. The purpose of the processing shall be determined on that legal basis or, in relation to the processing referred to in paragraph 1(e), is necessary for the performance of a task carried out in the public interest or for the purposes of the exercise of official authority conferred on the controller. That legal basis may contain specific provisions to adapt the application of the rules of this Regulation, including the general conditions on the lawfulness of processing by the controller; the types of data processed; The involved; the entities to which and the purposes for which the personal data may be provided; the target limitation; the storage periods; and the processing activities and procedures, including measures to ensure lawful and fair processing, such as those for other specific processing situations referred to in Chapter IX. Union or Member State law must meet an objective of general interest and must be proportionate to the legitimate aim pursued.4. Where the processing for a purpose other than that for which the personal data were collected is not based on the data subject's consent or on a provision of Union or Member State law which, in a democratic society, constitutes a necessary and proportionate measure to ensure the 1, when assessing whether processing for another purpose is compatible with the purpose for which the personal data were initially collected, the controller shall take into account, inter alia: (a) any relationship between the purposes for which the personal data were collected; and the purposes of the intended further processing;b) the framework in which the personal data are collected, in particular as regards the relationship between the data subjects and the controller;c) the nature of the personal data, in particular whether special categories of personal data are processed, in accordance with Article 9, and whether personal data about criminal convictions and offenses are processed, in accordance with Article 10; d) the possible consequences of the intended further processing for the data subjects; e) the existence of appropriate safeguards, which may include encryption or pseudonymisation. a request as referred to in Articles 15 to 22 of the Regulation shall be made within the time limits referred to in Article 12(3) of the Regulation and shall, insofar as it has been taken by an administrative authority, be regarded as a decision within the meaning of the General Administrative Law Act.