AN - 0000104/2021

AN - 0000104/2021
Court:	AN (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 57(1)(f) GDPR
Decided:	23.12.2022
Published:
Parties:	BBVA AEPD
National Case Number/Name:	0000104/2021
European Case Law Identifier:	ECLI:ES:AN:2022:6460
Appeal from:	AEPD (Spain) PS/00070/2019
Appeal to:	Unknown
Original Language(s):	Spanish
Original Source:	Audiencia Nacional (in Spanish)
Initial Contributor:	Bernardo Armentano

The Spanish Court Audiencia Nacional annuled a millionaire fine imposed on BBVA. It held that the DPA violated principles of the administrative sanctioning procedure as it went beyond the facts reported in the original complaints and carried out a general investigation on the bank's data protection policy.

English Summary

Facts

On 18 November 2020, the Spanish DPA (AEPD) jointly decided on five complaints made by different data subjects against Banco Bilbao Vizcaya Argentaria, SA (BBVA) (PS/00070/2019). In short, of the five complaints: One concerned the obligation to sign a data protection policy document to unblock a bank account; one referred to the validity of consent obtained through agreement with the data protection policy document; and other three were related to receiving advertising messages without consent (which the bank claimed to have obtained through the documents that the clients signed).

At the end of the procedures, the DPA found a violation of Article 6 GDPR and imposed a fine of €3,000,000. Due to the absence of clear information in the bank's data protection document, it also found a violation of Article 13 and 14 GDPR and imposed a fine of €2,000,000. In its decision, the DPA considered that although the complaints referred to specific and individualized behaviors in relation to certain natural persons, the violations transcended said complaints. It held that the data protection policy documents well as the consent obtained from its customers infringed the GDPR, affecting all customers. Therefore, it ordered BBVA to adapt its processing operations to the data protection legislation, to provide adequate information to its customers and to correct the way through which consent was being obtained.

The bank filed a judicial appeal against the DPA decision. Among other aspects, BBVA claimed that there was a total disconnection between the object of the procedure by the DPA and the complaints made by the data subjects. It argued that the DPA used specific and individual facts and complaints as an excuse to initiate a sort of general review of BBVA's practices and their data protection policy.

Holding

While rejecting some of the arguments of BBVA, the Court agreed that there is a relevant disconnection between the initial complaints and the final DPA decision.

The Court stressed that Article 57(1)(f) GDPR enables the DPA to investigate facts or the subject matter of the complaint. However, it does not allow the DPA to open a procedure against the data protection policy of BBVA itself. In its reasoning, it refers to one of its previous decisions from 23 April 2019 (Rec. 88/2017), in which it defined criteria for the application of the principles of the administrative sanctioning procedure within the scope of the DPA.

In the case at hand, the judges agreed that the DPA failed: (i) to examine the facts reported in the complaints; (ii) to make an assessment of the evidence in relation to those facts; and (iii) to link the facts to the data protection policy document. Rather, they found that the DPA opened a general investigation into the data protection policy of BBVA. In the Court's view, the DPA is bound by the facts of the data subject complaints. Therefore, the DPA is (at least initially) limited to investigate said facts or the "subject matter of the complaint".

The Court invokes the principle of legality, provided for in Article 25(1) of the Spanish Constitution, and referred to a Supreme Court (Tribunal Supremo) precedent according to which this principle "is translated into the imperative requirement of normative predetermination of illegal behaviors and the corresponding sanctions". In the case under analysis, the Court states that the mere existence of a data protection policy does not correspond to any concrete violation as the GDPR, or other data protection legislation, does not punish potential infringements.

Further, the Court held that it is for the DPA to assess the evidence of the facts in order to duly respect the principle of presumption of innocence. In its ruling, it points out that in this case the DPA only stated the proven facts related to the complaints, but did not assess these facts in its final decision. If an individual violation is not proven, neither should the conclusion be reached that the data protection policy violated the rights of all customers.

For these reasons, the Court annulled the DPA decision holding that it was not in accordance with the law.

Comment

There is no discussion about the possibility of the DPA to investigate ex officio. Spanish administrative law provides for this option. In ex officio procedures the DPA has a wider margin to define the scope of the procedure as when it is directly confronted with a complaint. Given that both possibilities exist (complaint based procedure and ex officio procedure - see Art. 64.2 LOPDGDD) it should have been brought up (or if it was brought up during the procedure, mentioned in the final decision) if it is permissible for the DPA to switch from a complaint based procedure to an ex officio procedure and, if yes, under which circumstances. Judging from the content of the decision, such an option seems rather limited.

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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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