Gerechtshof Amsterdam - 200.286.170/01 NOT: Difference between revisions

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GHAMS - 200.286.170/01 NOT

Court:	Hof Amsterdam (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 40 (2)(c) Wet op het notarisambt Article 18 (1) (3) Land registry act(Kadasterwet) Article 40 (2)(c) Civil-law notaries act (Wet op het notarisambt)
Decided:	01.06.2021
Published:	07.06.2021
Parties:
National Case Number/Name:	200.286.170/01 NOT
European Case Law Identifier:	ECLI:NL:GHAMS:2021:1370
Appeal from:	TNORARL (Netherlands) C/05/367627/KL RK 20-31
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rechtspraak.nl (in Dutch)
Initial Contributor:	n/a

The Amsterdam Court of Appeal dismissed a complaint against a notary, finding that the notary had legally processed the complainant's personal data based on a statutory obligation under the Dutch Notaries Act ('Wet op het notarisambt') and Land Registry Act ('Kadasterwet').

English Summary

Facts

The plaintiff issued a complaint against a civil law candidate notary (the defendant) because her home address was stated in the draft of two notarial deeds. The complaint consisted of four parts:

The personal data became public for third parties because the personal data was included in the notary deeds;
the candidate notary checked the information in the Personal Records Database (Basisregistratie Personen) even though he was not authorized to do so;
the candidate notary did not dedicate enough care to correct this and limit the damage;
the candidate notary breached the GDPR.

Dispute

Did the candidate notary breach any laws or regulations by including a personal address in the notary deeds?

Holding

The chamber held that:

the candidate notary was authorized to include the personal data in the deeds, based on Article 40(2)(c) of the Dutch Civil-law notaries act (Wet op het notarisambt) and Article 18(1)(3) of the Land registry act (Kadasterwet);
the candidate notary was obligated by law to check the identity of the parties and was allowed to use the Personal Record Database (Basisregistratie Personen) to do so;
the candidate notary took multiple actions to (duly) change the address data and limit any further damage;
the candidate notary processed the data based on a legal obligation, which is allowed by the GDPR "in many cases", and thus there was no violation. Further, the plaintiff did not provide any concrete arguments regarding which article of the GDPR was allegedly breached.

Comment

The Court did not specify the article of the GDPR on which the processing could have been based. However they stated that the data was processed 'based on a legal obligation'. Therefore, one can assume they were referring to Article 6(1)(c) GDPR as a legal basis for the processing.

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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
Amsterdam Court of Appeal
Date of judgment
01-06-2021

Date of publication

07-06-2021

Case number

200.286.170/01 NOT

Formal Relationships

First instance: ECLI:NL:TNORARL:2020:39

Jurisdictions

Civil rights

Special characteristics

Appeal

Content indication

Complaint against a candidate civil-law notary. Careless act of candidate civil-law notary by including personal address details of representative in notarial documents? Conflict with the GDPR? Art. 40 paragraph 2 sub c Wna. Complaint unfounded.

Locations

Rechtspraak.nl

Enhanced pronunciation

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Statement

decision
___________________________________________________________________ _ _

AMSTERDAM COURT

department of civil law and tax law

case number : 200.286.170/01 NOT

number first instance : C/05/367627 / KL RK 20-31

decision of the notary and bailiff's chamber of June 1, 2021

regarding

[complainant]
,
living in [place of residence] ,
appellant,

against

[junior civil-law notary]
,
candidate civil-law notary in [place] ,
defendant.

The parties are hereinafter referred to as the complainant and the candidate civil-law notary.

1 The case in brief

In her capacity as administrator, the complainant represents one of the sellers of registered property from an estate. The candidate civil-law notary handles the file regarding the transfer of the registered property. The complainant accuses the candidate civil-law notary of having handled her personal data carelessly, as a result of which these data became known to third parties.

2 The appeal proceedings

2.1.
On 24 November 2020, the complainant submitted a notice of appeal - with annexes - and on 5 January 2021 a supplementary appeal - with annexes - to the Court of Appeal against the decision of the chamber for the notarial profession in the district of ArnhemLeeuwarden (hereinafter: the chamber) of 26 October. 2020 (ECLI:NL:TNORARL:2020:39). The candidate civil-law notary submitted a statement of defense to the court on 12 February 2021.

2.2.
The court has also received the documents of the first instance from the chamber.

2.3.
The case was heard in open court of the court on March 18, 2021. The complainant and the deputy civil-law notary appeared and spoke.

3 Facts

For the facts, the Court of Appeal refers to what the Chamber established in the contested decision. The parties have not objected to the chamber's determination of the facts, so that the Court of Appeal also assumes those facts. Summarized and supplemented where necessary with other facts that have been established, the facts come down to the following.

3.1.
On February 18, 2020, a purchase agreement was concluded with regard to registered property located in [place] (hereinafter: the registered property). Sellers are the three heirs in the estate of the former owner of the registered property.

3.2.
In the purchase agreement, the complainant acts as administrator (over the assets) of one of the heirs.

3.3.
The notary's office where the candidate notary works handles the file regarding the transfer of the registered property. The buyer of the registered property has requested the civil-law notary's office to register the purchase agreement in the public registers as referred to in Section 3:16 of the Dutch Civil Code. On February 25, 2020, an employee of the notary's office telephoned the complainant to request her e-mail address. A notarial employee subsequently asked the complainant by e-mail that same morning to send a copy of a valid proof of identity in connection with the registration of the purchase agreement in the public registers. Immediately afterwards, the complainant sent the requested copy of her proof of identity by e-mail. She wrote on the copy that it is intended for the registration of the purchase agreement for the registered property. During these contact moments with the notary's office, the complainant did not state that her personal address details had to remain completely confidential.

3.4.
In the context of the identity investigation into the parties involved, the candidate civil-law notary also requested an extract from the Personal Records Database (hereinafter: BRP) from the complainant. The extract from the complainant's BRP contains no secret address indication.

3.5.
The candidate civil-law notary had the purchase agreement registered in the public registers on 25 February 2020 by means of a notarial statement of the purchase agreement.

3.6.
On February 27, 2020, the candidate notary sent the sales power of attorney to the complainant and asked her to return it with her legalized signature. This power of attorney contains the full personal details and personal address details of the complainant.

3.7.
By e-mail dated March 2, 2020, the candidate civil-law notary sent the draft deed of delivery to the complainant. This draft deed of delivery again included the complainant's full personal details and personal address details.

3.8.
On March 5, 2020, the complainant protested by telephone against the inclusion of her personal address details in the draft deed of delivery.

3.9.
The candidate civil-law notary then adapted the draft of the transfer deed within one hour and sent it to the complainant for approval.

3.10.
On March 13, 2020, the deed of delivery - without stating the complainant's personal address details - was passed.

4 The complainant's position

The complainant accuses the candidate civil-law notary of having handled her personal data carelessly. The complaint is divided into the following parts:

The deputy civil-law notary included the complainant's personal address details in the notarial statement of the purchase agreement and in the draft of the deed of transfer, making these details available to third parties.

The candidate civil-law notary verified the complainant's personal address details in the BRP, while he was not authorized to do so.

After all this had been established, the candidate civil-law notary paid insufficient attention to correcting and limiting the damage.

The candidate civil-law notary has violated the regulations of the General Data Protection Regulation (hereinafter: AVG).

5 Review

5.1.
In the contested decision, the Chamber declared the complainant's complaint against the candidate civil-law notary unfounded.

Complaint part 1 (include personal address details in notarial documents)

5.2.
Like the Chamber, the Court of Appeal is of the opinion that the candidate civil-law notary on the basis of the law (Article 18 paragraph 1 under 3º Land Registry Act and Article 40 paragraph 2 under c Act on the Notary Office) was obliged to keep the personal data of the complainant (in her capacity of representative) to be included in the notarial statement of the purchase agreement and in the draft deed of transfer. The same law provides that in certain cases the office address of a representative may also be included in the relevant notarial document instead of the personal address details. The office address of an administrator may therefore be used, but this is not an obligation. The complainant wanted to be mentioned in the notarial documents with her office address, but initially did not report this, while the candidate notary was not aware of this and therefore did not ask the complainant about this. As a result, both the complainant and the candidate civil-law notary paid no attention to this problem, the Court of Appeal concluded. It is, however, established for the court - as for the chamber - that the candidate civil-law notary immediately adjusted the address details of the complainant when she requested this. At the hearing of the appeal, the candidate civil-law notary once again stated that the policy of his civil-law notary's office with regard to the mentioning of the addresses of representatives has meanwhile been adjusted. Since there was no obligation for the candidate civil-law notary to include the complainant's office address in the notarial documents, the court agrees with the chamber that the complainant wrongly accuses the candidate civil-law notary that her personal address details were (initially) included in the notarial record. statement of purchase agreement and in the draft deed of delivery. This means that part 1 of the complaint is unfounded.

Complaint part 2 (verification of address details in BRP)

5.3.
With regard to part 2 of the complaint, the Chamber has ruled that the candidate civil-law notary cannot be blamed for the verification of the complainant's address details in the BRP, now that the candidate civil-law notary is legally obliged to establish the identity of the parties and their representatives and he could consult the BRP for this. With regard to this part of the complaint, the Court of Appeal sees no reason to rule differently from what the Chamber did and therefore finds that part 2 of the complaint is unfounded.

Complaint part 3 (correction and limitation of damage)

5.4.
The court sees that the candidate civil-law notary has taken a number of actions - described in the judgment of the chamber - within his means to adjust the complainant's address details (in time) and to limit further damage. Like the Chamber, the Court of Appeal is of the opinion that the accusation that the complainant makes the candidate civil-law notary on this point is not supported by the established facts. Complaint part 3 is unfounded.

Complaint part 4 (violation of the GDPR)

5.5.
Like the chamber, the court finds that the junior civil-law notary has processed the complainant's personal data on the basis of a legal obligation, which, according to the AVG, makes the processing of personal data permissible in many cases. The complainant has not set out in concrete terms on appeal which specific regulation of the AVG the candidate civil-law notary would have violated, nor has she disputed that the candidate civil-law notary has thoroughly investigated whether there was a violation of the AVG. With regard to part 4 of the complaint, the Court of Appeal will therefore not rule differently from what the Chamber has done, which will lead to a declaration of unfounded part of part 4 of the complaint.

5.6.
It follows from what has been considered above that the Court of Appeal, like the Chamber, is of the opinion that the complaint against the candidate civil-law notary is unfounded. The court will therefore confirm the decision of the chamber.

6 Decision

The court:

- confirms the contested decision.

This decision was made by Mrs. A.R. Sturhoofd, J.H. Lieber and J.W. van Zaane and pronounced in public on June 1, 2021 by the role councilor.

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