GHDHA - 200.274.807 / 01

GHDHA - 200.274.807/01
Court:	Gerechtshof Den Haag (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(f) GDPR Article 6(1)(c) GDPR Article 21(1) GDPR Wet op het financieel toezicht
Decided:	08.09.2020
Published:	08.09.2020
Parties:	ING Bank N.V.
National Case Number/Name:	200.274.807/01
European Case Law Identifier:	ECLI:NL:GHDHA:2020:1569
Appeal from:	Rb. Den Haag (Netherlands) C/09/579384 / HA RK 19-526
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	uitspraken.rechtspraak.nl (in Dutch)
Initial Contributor:	n/a

Court of Appeal Den Haag upheld the earlier decision by the Court of First Instance and rejected request for removal of the record with Credit Registration Office (Bureau Kredietregistratie - BKR).

English Summary

Facts

The appellant has a complicated credit history with the ING bank, which resulted in debts and outstanding payments. At some point her name was added to the Central Credit Information System of the Dutch Credit Registration Office. In 2017 the appellant paid all her debts, but the registration with the Credit Registration Office is to remain for the period of 5 years until 2022. In 2019 the appellant submitted the request for erasure which was rejected by ING. Subsequent Judgement of the Court of First Instance upheld this decision, which is now being contested by the appellant.

Dispute

The appellant requests the Court, among others, to order ING to remove the registration with the Credit Registration Office, limit its duration period or remove the registration temporarily until she gets another loan. The appellant claims that the necessity and proportionality balance assessment done by the Court of First Instance was wrong: for example, she can not get the mortgage she needs to improve her life. Her objection to processing follows from Article 21(1) GDPR. ING argues that Article 21(1) GDPR cannot be relied on in this case because it applies only to personal data processed under legitimate interest or public interest, but not under a legal obligation which is the case here.

Holding

The Court agreed with the appellant: legal basis of the processing of her personal data by ING is legitimate interest and not the legal obligation under the Dutch Financial Supervision Act (Wet op het financieel toezicht). This means, that she has the right to object to her personal data processing based on Article 21(1).

However, the Court rejects the appeal as such because the principles of necessity and proportionality are respected in this case. The appellant could not demonstrate that maintaining the registration would disproportionately affect her. The fact that she is financial reliable (even though challenged by ING) does not mean that she does not need protection from excessive loans. The mortgage rejection was done via phone and the appellant did not make use of the internal complaint procedure to challenge the rejection. Temporarily withdrawal of the record until the appellant gets another loan would represent disproportionate risks to the financial institutions.

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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:GHDHA:2020:1569 
Authority
Court of The Hague
Date of pronunciation
08-09-2020
Date of publication
08-09-2020 
Case number
200.274.807/01
Formal relationships
First instance: ECLI:NL:RBDHA:2019:14243, Ratification/attachment 
Areas of law
Civil Justice
Special features
Appeals
Content indication
Request for removal registration with Credit Registration Office. Art. 6 paragraph 1 under f AVG; art. 6 paragraph 1 under c AVG; art. 21.1 AVG. Rb and court reject request.
Sites
Rechtspraak.nl 
Enriched pronunciation 
Pronunciation
COURT OF APPEAL THE HEDGE 
Department of Civil Law 
Case number : 200,274,807/01
Court case number : C/09/579384/HA RK 19-526 
decision of 8 september 2020
regarding
[applicant],
living at [residence],
Applicant on appeal,
hereinafter referred to as: [applicant],
Attorney at law: Mr. M. de Boorder in The Hague,
by
ING Bank N.V,
located in Amsterdam,
defendant on appeal,
hereinafter referred to as: ING,
Attorney at law: Mr. T.J.P. Jager in Amsterdam.
The course of the proceedings
1. The course of the proceedings in the first instance is evident from the order of the District Court of The Hague of 28 November 2019 with the above-mentioned case number/rekest number. This order will hereinafter be referred to as the contested order. 
2. On 27 February 2020, [the applicant] lodged an appeal with a notice of appeal containing appendices (productions 1 to 6). 
3. ING filed a statement of defence with appendix (production H1) on 24 April 2020. 
4. At the court the following documents have been received:
on the part of [the applicant]:
- A journal report of 5 June 2020 with appendix (production 7);
- a journal report dated 9 June 2020 with appendices (productions 8 and 9);
- A journal report of 10 June 2020 with appendix (production 10);
- A journal report of 11 June 2020 with attachment (production 11); 
on the part of ING:
- Journal of 9 June 2020 with attachments (letter and productions H2 and H3);
- a letter dated 23 June 2020 with annexes (missing documents in the case file).
5. The oral hearing took place on 24 June 2020. Appeared:
- [applicant] and her husband, assisted by her lawyer;
- Employee], special management employee at ING, assisted by D.J. Postuma, attorney at law in Amsterdam.
An official report of the oral hearing has been drawn up, which can be found with the documents. 
Assessment of the appeal
Some facts 

6. The facts established by the court in 2.1 to 2.11 of the contested order are not in dispute on appeal either. This case concerns the following.
6.1. 
Pursuant to Section 4:32 of the Financial Supervision Act (Wft), ING, as a provider of credit, is obliged to participate in the registration of credits granted to consumers and business customers. This credit registration is carried out by the Bureau Krediet Registratie (BKR). The register is called the Central Credit Information System (CKI). 
6.2. 
The [applicant] has had a credit facility with ING with a credit limit of € 25,000 since 2007. The credit terms and conditions state, among other things, that the credit limit may be revised periodically on the basis of the data available from the lender. It is also stated that exceeding the credit limit is not permitted. ING sent [the applicant] written confirmation of a change in the credit facility on 4 April 2014, which meant that the credit limit was reduced by € 500 per month, for the first time on 1 May 2014. 
6.3. 
An overview submitted by ING of the balance of the loan between 1 April 2014 and 1 December 2015 shows a limit of € 15,000 on 1 December 2015 (€ 25,000 minus twenty monthly reductions of € 500). The balance on that date was € 15,679.07. Furthermore, it follows from this overview that in three of the twenty months the reduction required at that time had been achieved (so that an amount of recording space remained) and in the remaining months not (so that the recording space was negative at that time). During this period, [the applicant] did not have the turnover of its business deposited into an ING account. 
6.4. 
ING notified [the applicant] (in any event) in April 2015 and October 2015 that there were regular overdrafts/overs on its account. ING has requested [the applicant] to supplement the excesses. 
6.5. 
On 20 October 2015, ING informed [the applicant] that there was still an overrun and that its file had therefore been transferred to the collection agency Vesting Finance Fiditon (hereinafter: VFF). 
6.6. 
On 30 October 2015, VFF informed [the applicant], in brief, that:
- the credit facility is terminated with immediate effect, stating the reasons;
- ING's total claim at that time amounted to € 16,938.74;
- [the applicant] must pay that amount before 11 December 2015;
- further (legal) measures may be taken if no full repayment has been made by 11 December 2015 or if a concrete payment proposal has been made, supported by the necessary information and documentary evidence;
- if the outstanding balance is not paid by 11 December 2015 at the latest, the claim with a backlog coding will be reported to the BKR. 
6.7. 
ING registered [the applicant] in the CKI on 12 December 2015 with an A-coding (for the creation of an unauthorised arrears) and a 2-coding (for making the claim due in full) when full payment of the arrears remained outstanding. 
6.8. 
The [applicant] submitted a payment proposal on 1 December 2015. As a result, VFF informed [the applicant] on 18 December 2015 that it agrees to a repayment of at least € 1,000 per month with effect from 8 January 2016, running until 8 June 2017, which arrangement will lapse if payment is not made on time. 
6.9. 
In 2016 and 2017, VFF sent letters to [the applicant] stating that the payment schedule had not been punctually complied with and ordering it to pay the arrears. 
6.10. 
[the applicant] paid off the claim on 9 August 2017. This date was subsequently entered in the CKI as the final date. In principle, the mention of the codes mentioned in 6.7 will remain visible until five years after the end date, i.e. until August 9, 2022. 
6.11. 
On 27 June 2019, [the applicant's] representative submitted an application for removal of [the applicant's] BKR registration. That request was rejected by VFF on behalf of ING in a letter dated 18 July 2019. 
The application of [the applicant] and the contested decision 
7. [applicant] requested, in summary, the court to: 
- Order ING to remove the registration in the CKI or the codes in the name of [the applicant] (or have them removed), or 
- limit the duration of the registration with the said codes to two and a half years and order ING to remove these codes after the expiry of that period with effect from December 2019, or
- make any other decision that the court deems appropriate 
- on pain of forfeiture of a penalty payment 
- order ING to pay the costs of the proceedings. 
8. ING has put forward a defence. In the contested decision, the court rejected the [applicant's] requests and ordered it to pay the costs. The grounds for this decision can be summarised as follows. 
8.1. 
In the first place, the District Court considered that the registration took place on good grounds (r.o. 4.1 - 4.3). The circumstance that [the applicant] had submitted a sufficiently substantiated payment proposal before 11 December 2015 did not have to deter ING from registration. After all, ING had informed [the applicant] that the claim would be reported to the BKR if the entire balance had not been paid by 11 December 2015 at the latest. Nor did ING have to refrain from registration on account of the fact that it had decided to substantially reduce the credit, and it was not surprising that this did not go without a hitch. ING explained that one of the reasons it had decided to cut back was because there was too little turnover in relation to the size of the loan granted. The [applicant] did not or insufficiently substantiate that ING should not have done so. 
8.2. 
Secondly, the court assessed whether ING did not take sufficient account of the interests of [the applicant] when refusing to remove the registration (r.o. 4.4 - 4.8). In this assessment, the court assumed that the registration of personal data and its enforcement in the event of a subsequent change of circumstances must comply with the principles of proportionality and subsidiarity. The infringement of the interests of the data subject whose personal data are being processed may not be disproportionate in relation to the purpose of the processing. Furthermore, the purpose for which the personal data are processed should not reasonably be achieved in another way that is less harmful to the data subject. The purpose of the processing of the personal data by the BKR in the CKI is to protect the data subject, such as [applicant], against excessive credit and other problematic debt situations and to limit credit and payment risks of the participants, such as a mortgage institution, by informing them of relevant details that have occurred in the recent past. 
8.3 
Now that the registration has taken place on good grounds, the court considers the interest in registration to be given and this interest should only in exceptional cases give way to the individual interest of the consumer. The interest put forward by [the applicant], which lies in the plans she has with her house - which will be converted with funds from a temporary increase in mortgage financing, after which the house will be split up and the upstairs house will be sold - does not carry sufficient weight vis-à-vis the interest of mortgage institutions to take [the applicant]'s credit history into account when assessing her application for financing. In addition, the fact that [the applicant] and her partner are currently able to bear the mortgage costs of their home, according to the applicant, weighs heavily. The court did not find any need to implement the plan in the short term. 
9. On appeal, [the applicant] requests the Court to set aside the contested decision and grant its requests made at first instance and to order ING to pay the actual costs of both sets of proceedings. The appellant puts forward five grounds of appeal. 
10. With grievance 1 [the applicant] contests the District Court's opinion that she was registered with the BKR on good grounds with an A2 coding. According to [the applicant], ING should not have imposed a unilateral termination of the credit and should not have coded it on account of the failure to comply with it punctually (the court understands: registration in the CKI). Furthermore, ING should not have claimed the credit all at once but should have taken into account the payment options of [the applicant]. 
11. Contrary to what [the applicant] argues (appeal under 5), the credit agreement did provide for the possibility of reducing the credit. In fact, the credit terms stated that the credit limit could be reviewed periodically on the basis of the information available from the creditor (see 6.2 above and Annex 1 to the statement of defence at first instance). In so far as [the applicant] means that ING should not have exercised this contractual power in the given circumstances, it has insufficiently substantiated its complaint. In its notice of appeal under 5 and 6, it argues that the decision to reduce the credit of 4 April 2014 was based on the four independent grounds referred to in point 8 of the statement of defence at first instance and disputes the applicability of those grounds. However, that argument is based on a misunderstanding, as acknowledged by [the applicant's] lawyer at the oral hearing. The statement of defence at first instance, paragraph 8, referred to the grounds for claiming the credit on 30 October 2015. Neither did [the applicant] explain in any other way its position that ING should not have reduced the credit. 
12. The court of appeal also considered the position that ING should not have claimed the claim all at once but should have taken into account the payment options of [the applicant] to be insufficiently substantiated. According to [the applicant], it is impossible to see why ING should not be satisfied with its payment proposal of € 250 per month, because it was well within the permitted credit limit. By this she is clearly referring to the credit limit of € 620.06 referred to in the notice of appeal under 6. This too is a misunderstanding, because the overview referred to in 6.3 above shows that the amount of € 620.06 was the credit margin on 1 April 2014 and that the credit margin has been continuously negative since 1 March 2015. 
13. The applicant has not further substantiated its position that ING should not have claimed the credit in October 2015 with concrete, relevant arguments. As such, the circumstance that it entered into financing with Defam in June 2015 for €35,000 cannot apply. Nor does the Court of Appeal follow [the applicant] in claiming that the acquisition of that new credit shows that she was not financially at fault and that her administration and turnover were in order. Therefore, it cannot be assumed in these proceedings that ING was not allowed to claim the credit in October 2015. When [the applicant] subsequently failed to repay its debt within the period set by VVF, the conditions for registration had been met - apart from the weighing of interests still to be discussed below. 
14. Grief 1 therefore fails. 
12. Grievance 2 is directed against the balancing of interests carried out by the court, which has been to its disadvantage. 
13.1. 
The parties agree that a balance of interests must be made, but not on the basis of which this must be done. This will be dealt with first by the court. The applicant is of the opinion that the necessity of balancing interests follows from article 21 paragraph 1 second sentence of the General Data Protection Regulation (AVG). However, ING contests the applicability of this provision, because on the basis of the first sentence of article 21 subsection 1 GC only if the data processing is based on article 6 subsection 1 under e or f GC, whereas according to ING this concerns data processing that is necessary to comply with a legal obligation as referred to in article 6 subsection 1 under c of the GC. 
13.2. 
The court considers as follows. As a provider of credit, ING is obliged under Section 4:32 paragraph 1Wft to participate in a system of credit registration. The CKI is such a system of credit registration that is maintained by BKR. ING is a participant in the CKI and, as a participant, is bound by the CKI General Regulations adopted by BKR (hereinafter: AR). The purpose of the AR is to promote socially responsible financial services. Specifically, this involves protecting consumers from excessive credit and other financial problems (problematic debt situations) and limiting the financial risks for lenders when granting credit and preventing and combating abuse and fraud. 
13.3. 
The registration in the CKI constitutes a processing of personal data within the meaning of the GTC. Pursuant to art. 21 section 1 GC, the data subject has at all times the right to object to the processing of data concerning him or her on the basis of art. 6 section 1 under e or f GC, due to reasons related to his or her specific situation, and in the event of an objection by the data subject, the data controller must cease processing the personal data, unless the data controller invokes compelling legitimate grounds for processing that outweigh the interests of the data subject. 
13.4. 
Article 6 paragraph 1 AVG reads, insofar as relevant in this context: 
1. Processing is only lawful if and insofar as at least one of the following conditions is met: 
(...) 
c) the processing is necessary to comply with a legal obligation incumbent on the controller; 
(...) 
e) the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; 
(f) processing is necessary for the purposes of pursuing the legitimate interests of the controller or of a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data, in particular where the data subject is a child.
13.5. 
From the words "at least one" in the opening words of article 6 paragraph 1 AVG it appears that the different parts do not form mutually exclusive categories. In the opinion of the Court of Appeal, Article 6 paragraph 1 under f of the AVG in any case provides a basis for the data processing by the BKR of the data of [the applicant], in view of the purpose of the credit registration referred to above in 13.2. The Court of Appeal does not consider it plausible that the data processing is also necessary to comply with a legal obligation that rests on ING as controller - assuming that ING can be considered as such. After all, the obligation referred to by ING in this respect is the obligation to participate in a system of credit registration. It cannot be said that ING does not comply with that participation obligation if it does not process the data of [the applicant] in the CKI. The Court of Appeal therefore assumed that now that the data processing falls under Article 6 paragraph 1 under f GCI and not also under Article 6 paragraph 1 under c GCI, [the applicant] is entitled to the right of objection on the grounds of Article 21 paragraph 1 GCI. 
13.6. 
In its decision of 9 September 2011 (ECLI:NL:HR:2011:BQ8097), issued under the (then) Personal Data Protection Act, the Supreme Court considered that all data processing must comply with the principles of proportionality and subsidiarity, which means that the interference with the interests of the data subjects may not be disproportionate in relation to the purpose to be served by the processing and that purpose cannot reasonably be achieved in another way that is less harmful to the data subject. It must be assumed that this principle also applies to the processing of personal data - and the assessment of a request for removal - on the basis of Article 21 paragraph 1 of the GCG. 
14. In summary, [the applicant] argues the following against the balancing of interests made by the Court.
[applicant] is financially reliable. It has fully complied with its obligations from its loans with ING and another loan with Defam. Registration is therefore not necessary to protect her against excessive lending and other problematic debt situations and to properly assess credit and payment risks of participants.
From the registration it can be deduced that [the applicant] has been in arrears with the main claim and that it has been claimed. However, it did not exceed the principal claim and the claim was not the principal claim but a residual debt. This falls outside the scope of the BKR. 
The court wrongly believes that removal should only be carried out in exceptional cases. Removal should be carried out on the basis of the assessment in accordance with article 21 of the AVG. In any case, it must be tested separately whether further coding is still necessary in the current situation. In doing so, all the circumstances of the case must be taken into account in the given case, including the situation regarding the claim, the situation regarding compliance with the Defam credit and the current financial situation, according to [the applicant].
15. ING refutes these objections and endorses the balancing of interests. 
16. The court considers the balancing of interests made by the court to be correct and accepts it. With respect to the objections of [the applicant] the Court considers the following. 
[the applicant] has indeed fully complied with its obligations under another credit facility with ING, but that does not apply to its obligations under the credit facility agreed in 2007. After all, it is certain that arrears have arisen in that facility which have given ING cause (and may have given ING cause) to terminate the credit and claim the outstanding balance, after which [the applicant] proved unable to pay the claimed amount in time. The fact that [the applicant] later repaid the amount due does not justify the conclusion that it has (always) 'fully' fulfilled its obligations. What she meant by the distinction between arrears and exceeding the principal claim, has not become clear to the Court of Appeal. With regard to the credit with Defam, ING has undisputedly pointed out that this credit was not granted to [the applicant] but to her husband. 
Even if it were to be assumed that [the applicant] is financially reliable, which is disputed by ING, this does not mean that the risk of excessive lending is absent and that ING may refrain from registration in accordance with the AR, not only for the protection of [the applicant] but also with a view to the assessment by other providers of the risks of granting credit to [the applicant]. It is impossible to see why this would fall outside the scope of the AR.
Whether or not the removal of codes that have once been correctly applied should only take place in exceptional cases can be left open. It is only a question of weighing up the interests in the light of the requirements of proportionality and subsidiarity. As considered, the Court endorses the balancing of interests carried out by the Court. The fact that it has not appeared on appeal that there is now an urgent necessity for the implementation of the plans with [the applicant's] home is also relevant here. Incidentally, [the applicant] did state that the registration makes it impossible to obtain the mortgage financing required for this purpose, but ING disputed this, stating the reasons, and at the hearing it appeared that [the applicant] had only had a telephone rejection of Florius and that she had not made use of the possibility to have that rejection reassessed in Florius's internal complaint procedure. The parties debated the current financial situation of [the applicant] at the hearing. It did not appear to the Court that this financial situation is such that maintaining the registration should be considered disproportionate. At the hearing [the applicant] argued that ING should temporarily revoke the registration, so that [the applicant] would have the opportunity to obtain the financing it desired, after which ING would be allowed to register it again. The court of appeal rejected such a temporary interruption of the registration, because it could put Florius or another credit provider on the wrong track. Grief 2 does not succeed.
17. In ground 3, [the applicant] submits that the District Court failed to take into account in ground 4.7 that [the applicant] wants to split her house and thereby add the split-off part to the tight housing stock, which is a current interest. Furthermore, she argues, she wants to arrange her future now. The court should not have tested whether this is an exceptional situation, but whether further registration is still necessary. 
18. This grievance also fails. The court did not ignore the fact that the house would be split up and that therefore an extra house would be created. For the assessment in the context of Article 21 of the AVG it cannot be seen that this carries any relevant weight. This also applies to the circumstance that [the applicant] now wants to arrange her future. Whether the situation is exceptional or not, also in the opinion of the Court of Appeal the circumstances of the case are not such that the registration period must be shortened. 
19. The failure of grievances 1 to 3 means that [the applicant's] request will also be rejected on appeal. 
20. Grievance 4 concerns the award of costs. The applicant argues that in proceedings of this kind, as in administrative law, an order for costs on the part of the applicant should be omitted if there is no abuse of process. The grievance fails. Although the court is not obliged to do so pursuant to section 289 of the Dutch Code of Civil Procedure, in proceedings like this one an order to pay costs is made and the Court of Appeal sees no reason to rule otherwise in this case. 
21. Grief 5 is a so-called smudge grievance, which does not require separate discussion. This grievance also fails. 
22. In conclusion, the grievances fail and the contested decision will be upheld. As requested by ING, [the applicant] will be ordered to pay the costs of the appeal, including post-clearance costs, which will be provisionally enforceable. 
Decision
The court:
ratifies the order of the District Court of The Hague of November 28, 2019.
orders [the applicant] to pay the costs of the appeal, estimated on the part of ING to date at € 760 for out-of-pocket expenses, € 2,148 (2 pt x rate II) for the lawyer's salary and € 157 for subsequent costs, with provision that this amount will be increased by € 82 in the event that [the applicant] has not complied with this decision within fourteen days of this decision being notified.
declares these cost orders enforceable in stock.
reject it more or else requested.