GHAL - 200.266.445

Hof Arnhem-Leeuwarden - 200.266.445
Court:	Gerechtshof Arnhem-Leeuwarden (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 5 GDPR Article 17 GDPR Article 21 GDPR
Decided:	28.4.2020
Published:	13.5.2020
Parties:	ABN AMRO Bank NV
National Case Number:	200.266.445
European Case Law Identifier:	ECLI:NL:GHARL:2020:3464
Appeal from:	Rb. Gelderland (District Court of First Instance)
Language:	Dutch
Original Source:	de Rechtspraak (in NL)

The Arnhem-Leeuwarden Court of Appeal confirmed the first instance decision regarding the balancing of interests under Article 21(1) GDPR. In particular, the Court also considered the subjective position of the data subject. At the time of the facts, she was a registered accountant, and this made her conduct even more serious.

English Summary

Facts

In order to obtain a loan, the data subject provided false document to the bank. Once the bank realized the fraud, it cancelled the contract and inserted the data subject's details into two registries (IR and EVR) meant to protect and preserve the integrity of the financial system.

Before the Court of First Instance, the data subject asked the deletion of her personal data from the registries or alternatively to limit the duration of the registrations to one year, or a period to be determined by the Court.

The Court of First Instance rejected the requests and the data subject challenged the decision before the Arnhem-Leeuwarden Court of Appeal.

Dispute

Τhe Court of Appeal had to assess whose interests prevail in this case: the appellant´s interest to have her data deleted or the bank´s interests to keep data subject´s details in the registries and preserve the integrity of the financial system.

Holding

Under Article 21 (1) GDPR, the Court should balance the interests at stake.

On the one hand, the interest of the bank to preserve the safety and integrity of the financial sector. On the other hand, the data subject right to interrupt a damaging processing.

In the present case, data subject´s actions undoubtedly threatened the interests of the financial sector.

However, the appellant argues that her interests should prevail over the bank´s. First, she works as an accountant in the financial sector where this information is easily accessible and thus damages her reputation. Second, registrations make it impossible for her to obtain another mortgage and buy a new house.

The Court of Appeal rejected these arguments. The incident was serious, especially for an accountant. This therefore justified the adverse consequences that the appellant may experience in her work. Furthermore, the appellant had not proved the necessity of a new house, since she had been living in a (different) home that she owned.

The interests and circumstances alleged by the appellant were therefore insufficient for the Court to reform the first decision. In view of the above, the interest of ABN AMRO in maintaining the registrations outweighs the interests of the data subject.

As per the alternative request, the Court of Appeal did not consider the 8-years limit to be disproportionate due to the seriousness of the incident. The alternative request is therefore also rejected and the first decision entirely confirmed.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

1 The procedure in court

For the procedure before the court, the court refers to the content of the decision of 24 June 2019, which was issued by the court of Gelderland, Arnhem seat.
2 The procedure in court
2.1

The course of the appeal procedure is evident from:
- the notice of appeal with appendices, received on 19 September 2019;
- the statement of defense with appendices, received on 5 November 2019, from ABN AMRO;
- the V6 form with exhibits 3 to 6 by mr. Notenboom of 26 February 2020;
- the V6 form with production 7 of mr. Notenboom of 9 March 2020.
2.2

The oral hearing took place on 16 March 2020, in which [appellant] appeared, assisted by Mr. Notenboom. Mr. Achterberg has appeared on behalf of ABN AMRO. Mr. Notenboom and Mr. Achterberg presented speech notes at the hearing. Subsequently, the court determined the decision.
3 The facts

The appeal is based on the facts as described in paragraphs 2.1 to 2.5 of the order of 24 June 2019.
4 The statement of reasons for the appeal decision

heart of the matter
4.1 At the end of 2016, ABN AMRO [appellant] provided a mortgage loan for the purchase and renovation of a home. On 21 December 2018, ABN included AMRO [appellant] in the Incident Register (hereinafter: IR) and the External Referral Register (hereinafter: EVR) for the maximum duration of 8 years. ABN AMRO subsequently terminated the banking relationship with [appellant], claimed the mortgage loan and initiated the executory sale of the house. ABN AMRO proceeded to do this because it appeared that the mortgage application had provided a false tax statement of [appellant's] bank account with Lloyds Bank from the email address of [appellant]. The fiscal overview on December 31, 2015 showed a closing balance of € 121,014.86, while the original fiscal overview of December 31, 2015 had a closing balance of
€ 11,014.86 mentions. [appellant] has acknowledged that the tax overview has been falsified, but has disputed that it has falsified the overview and that it has sent it to ABN AMRO by e-mail.
procedure in court
4.2 [appellant] has requested - in summary - the court to order ABN AMRO to remove the personal data of [appellant] from the IR and EVR within two working days after the decision, alternatively to limit the duration of the registrations to one year, or a period to be determined by the court, with confirmation by ABN AMRO of this removal or limitation of duration to [appellant] and to third parties to whom notifications of the registrations have been made, on pain of a penalty. In addition, [appellant] has requested ABN AMRO to be ordered to pay the legal costs.
4.3

The court has considered that it must be assumed that [appellant] has sent a forged overview to ABN AMRO and judged that there is a heavier suspicion than a reasonable suspicion of guilt that [appellant] has used a forged document, one that is punishable fact to qualify conduct. The court subsequently rejected the primary request because - briefly stated - the interests of [appellant] in the removal of her personal data do not outweigh the legitimate interests of ABN AMRO in maintaining it. The alternative claim was rejected because the court the General Regulation Data (hereinafter AVG ) or the Implementation AVG provides a basis for limiting the duration of the registration.

assessment framework
4.4 The assessment framework that the court used in paragraphs 4.1 to 4.4 of the decision of 24 June 2019 was not disputed by the parties, so that the court also takes this as a starting point. In short, the request for deletion of the data in the IR and EVR must be assessed on the basis of the GDPR . Article 21 (1) GDPR stipulates that a data subject has the right to object to the processing of personal data concerning him based on Article 6 (1) (e) and (f) GDPR at any time for reasons related to his specific situation . Pursuant to Article 17, paragraph 1, preamble and under c and d GDPRthe data subject has the right to have his personal data deleted if the data subject pursuant to Article 21 (1) GDPRobject to the processing and there are no prevailing compelling legitimate grounds for the processing, or if the personal data have been unlawfully processed. According to Article 6, paragraph 1, preamble and under f, the processing is lawful if and insofar as the processing is necessary for the representation of the legitimate interests of the controller or of a third party, except when the interests or fundamental rights and freedoms of the data subject which require the protection of personal data outweigh those interests, especially when the data subject is a child. In doing so, the principles of proportionality and subsidiarity must be complied with.This means that the infringement of the interests of the data subjects must not be disproportionate to the purpose of the processing, and that this purpose cannot reasonably be achieved in another way less disadvantageous to the data subject.
4.5

Furthermore, the registrations in the IR and EVR should be based on the Protocol Incident Warning System Financial Institutions (hereinafter: the protocol). The protocol further specifies in which cases data may be included and may remain included in the IR of the affiliated financial institution. The IR and the associated EVR aim to support activities aimed at ensuring the safety and integrity of the financial sector. In order to register data, it must be behavior that forms an disadvantage (IR) or threat (EVR) for the interests of the financial institutions or the continuity and integrity of the financial sector.

request removal of IR and EVR registrations
4.6 The court rejects the primary request for deletion of the [appellant's] personal data in the IR and EVR and accepts the court's opinion on this point. The court agrees with the court that it has been established that [appellant] has provided a false tax overview to ABN AMRO. During the oral appeal, [appellant] acknowledged (again) that the tax overview of her bank account at Lloyds Bank, which was provided to ABN AMRO in connection with her mortgage application, was forged. Although [appellant] has contradicted that she drew up the forged overview and that she sent this overview to ABN AMRO from her e-mail address, [appellant] also failed to substantiate these statements on appeal.[appellant] has led ABN AMRO to believe that it is over
Apparently € 110,000 more in own funds than was actually the case, apparently in order to qualify for the requested mortgage loan. This behavior undoubtedly leads to disadvantage and threat to the interests of the financial sector and provides an important interest on the part of ABN AMRO to register [appellant] in the IR and EVR. [appellant] has argued that her interests should be outweighed by the removal of the registrations, partly because the registrations hinder her in the exercise of her profession as an accountant. [appellant] claims that she mainly works at financial institutions and that when they consult the systems, these institutions encounter the notification of her in the IR and EVR. However, the incident is so serious, especially for someone who is an accountant,that the registrations are justified and that this therefore justifies the adverse consequences that [appellant] may experience in her work as an accountant. In addition, [appellant] has argued that she will not obtain new financing as long as the registrations are maintained. This circumstance does not lead to any other judgment either. Furthermore, it has not been shown that [appellant] is in need of housing, since [appellant] currently lives in a (different) home that she owns. Furthermore, it is expected that in the short term [appellant] can be further helped by the municipality to open a basic account, so that the registrations in this respect do not hinder [appellant] to participate in the financial traffic.The interests and circumstances put forward by [appellant], seen separately but also in mutual context, are insufficient for the court to arrive at a different decision than the court. Since [appellant] has insufficiently substantiated its statements regarding the falsified tax overview, as judged above, the Court of Appeal is unable to provide evidence. The court finds the recording and enforcement of the registrations in accordance with the principles of proportionality and subsidiarity. In view of the above, the interest of ABN AMRO in maintaining the registrations outweighs the interests of [appellant] in its removal.Since [appellant] has insufficiently substantiated its statements regarding the falsified tax overview, as judged above, the Court of Appeal is unable to provide evidence. The court finds the recording and enforcement of the registrations in accordance with the principles of proportionality and subsidiarity. In view of the above, the interest of ABN AMRO in maintaining the registrations outweighs the interests of [appellant] in its removal.Since [appellant] has insufficiently substantiated its statements regarding the falsified tax overview, as judged above, the Court of Appeal is unable to provide evidence. The court finds the recording and enforcement of the registrations in accordance with the principles of proportionality and subsidiarity. In view of the above, the interest of ABN AMRO in maintaining the registrations outweighs the interests of [appellant] in its removal.In view of the above, the interest of ABN AMRO in maintaining the registrations outweighs the interests of [appellant] in its removal.In view of the above, the interest of ABN AMRO in maintaining the registrations outweighs the interests of [appellant] in its removal.

limitation duration registration IR and EVR
4.7 Unlike the court, the court is of the opinion that the GDPRand the Implementation Act does provide a basis for an order limiting the duration of the registration. The possibility of this lies in the further jurisdiction of the court to order that the processing of personal data be stopped. After all, the balancing of interests to delete the data also includes the consideration of limiting the duration of the registration and thus allowing the deletion to take place, not immediately but at an earlier time than the protocol should do at the latest. In this context, too, the Court of Appeal must weigh up the interests put forward by both parties and assess whether the principle of proportionality has been complied with. With reference to what has been considered about those interests under 4.6,the Court of Appeal does not consider the duration of the registrations of 8 years as disproportionate at present due to the seriousness of the incident. The alternative request of [appellant] will also be rejected.
5 Finally
5.1

Although the appeal succeeds on the point that the limitation in the duration of the registration can also be requested under the GDPR , the assessment of the request on this point does not lead to a different judgment. The contested decision will therefore be ratified.
5.2

The appellant, as the unsuccessful party, will pay the costs of the appeal. The costs of the appeal proceedings on the part of ABN AMRO will be set at € 741 for court fees and € 2,148 for attorney's salaries in accordance with the liquidation rate (2 points x apple rate II).
6 The decision

The appellate court, on appeal:

ratifies the contested decision of the court of Gelderland, seat Arnhem, of 24 June 2019;

orders [appellant] to pay the costs of the appeal, up to this judgment set at ABN AMRO at € 741 for disbursements and at € 2,148 for attorney's salary in accordance with the liquidation rate;

declares this decision enforceable with stock;

rejects the more or otherwise requested.

This decision was made by mrs. CJHG Bronzwaer, JH Lieber and HL Wattel, signed by the youngest counsel in the absence of the Chairman and publicly pronounced in the presence of the Registrar April 28, 2020.