AN - 0000104/2021

AN - 0000104/2021
Court:	AN (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 57(1)(f) GDPR Article 63(1) Law 39/2015 Articles 63(2) and 65(2)
Decided:	23.12.2022
Published:
Parties:	BBVA
National Case Number/Name:	0000104/2021
European Case Law Identifier:
Appeal from:	AEPD (Spain) PS/00070/2019
Appeal to:	Unknown
Original Language(s):	Spanish
Original Source:	Audiencia Nacional (in Spanish)
Initial Contributor:	Bernardo Armentano

A Spanish Court annuled a millionaire fine imposed on BBVA. It held that the DPA violated principles of the sanctioning procedure, as there was a disconnection between the original complaints and the investigation on the bank's privacy policy.

English Summary

Facts

In 11 December 2020, the Spanish DPA jointly decided on 5 complaints made by different data subjects against BBVA (PS/00070/2019). In short, of the 5 complaints: 1 concerned the obligation to sign the privacy policy to unblock a bank account; 1 referred to the impossibility of rejecting data processing when agreeing with the privacy policy; another 3 were related to receiving advertising messages without prior consent (which the bank claimed to have collected through its privacy policy).

As seen, all the complaints referred to the bank's privacy, to which consumers were required to consent in order to contract banking and financial services. For this reason, the DPA understood that the violation was not limited to the illegal processing of data of the 5 data subjects. In its view, the privacy policy itself was illegal, violating the GDPR and, by extension, the bank's entire set of customers. Based on this understanding, it gathered the complaints for joint decision and instituted a sanctioning procedure with the purpose of investigating BBVA's privacy policy and assess how consent was being obtained.

At the end of the procedures, the DPA found a violation of Articles 12, 13 and 14 GDPR, due to the absence of clear information in the bank's privacy policy, and imposed a fine of €2.000.000. It also found a violation of Article 6 and imposed a second fine, of €3.000.000. Finally, the DPA ordered BBVA to amend its privacy policy in order to ensure that each processing operation relies on a valid legal basis and to provide sufficient information to its customers. This was the first multimillion-euro fine imposed by the AEPD and received and received a lot of attention from privacy professionals and those interested in data protection.

The bank filed a judicial appeal against the DPA decision. In summary, it alleged that the procedure initiated by the DPA violated its right of defense provided for in Law n. 39/2015. According to BBVA, the initiation of investigation represents a pre-judgment of guilt and violates the presumption of innocence, as the investigation order comes from a hierarchical superior, contaminating the action of the inspector responsible for the investigation.

Holding

The Spanish National Court highlighted that, according to Recital 129 GDPR, the powers of the supervisory authorities must be exercised in accordance with adequate procedural guarantees established in the Law of the Union and the Member States. Thus, it took Article 63(2) LOPDGDD as a starting point. This article establishes that procedures carried out by the Spanish DPA shall be governed by the provisions of the GDPR and, secondarily, by the national norms on administrative procedures. The Court acknowledges that the DPA can launch an ex officio investigation to determine the existence of a violation as provided for by Article 65(2) of the same law. However, Article 63(1) of Law 39/2015 (Administrative Procedures Law), also applicable pursuant to the aforementioned provision, requires that ex officio investigations be initiated upon agreement by the competent body.

In the case at hand, the National Court saw a total disconnection between the object of the procedure initiated by the DPA and the complaints made by the data subjects. For the judges, the complaints related to concrete and individual violations, but, from that point on, the DPA initiated a sort of general review of BBVA's performance. In other words, they held that the allusion to the bank's privacy policy in relation to certain facts, empowers the DPA to investigate said facts or the "reason for the complaint" as indicated in article 57 (1)(f) GDPR. However, it does not allow the DPA to open a disciplinary proceeding against the controller as a result of the complaint.

The Court stressed the relevance of the principle of legality, provided for in Article 25(1) of the Spanish Constitution, within the scope of sanctioning administrative procedures. It referred to a Supreme Court precedent according to which this principle "is translated into the imperative requirement of normative predetermination of illegal behaviors and the corresponding sanctions". Similarly, the assessment of the evidence must be done in line with the principle of the presumption of innocence. Thus, the National Court understood that the DPA should be limited to proven facts. In its understanding, the facts do not lead to the conclusion that the mere existence of the privacy policy violated the GDPR. Finally, it reinforced that the GDPR does not provide for the sanctioning of potential violations and considered that 5 complaints in a universe of thousands of consumers is not representative of a generalized violation.

Therefore, the Court annulled the DPA's decision holding that it was not in accordance with the law.

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English Machine Translation of the Decision

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

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