Rb. Amsterdam - KG ZA 23-440

Rb. Amsterdam - KG ZA 23-440
Court:	Rb. Amsterdam (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 17 GDPR Article 21(1) GDPR Article 35(2) UAVG Article 4:32 WFT
Decided:	31.05.2023
Published:	21.06.2023
Parties:	ING
National Case Number/Name:	KG ZA 23-440
European Case Law Identifier:	ECLI:NL:PHR:2022:1154
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	Rechtspraak (in Dutch)
Initial Contributor:	nur-khmeydan

A Dutch Court held that a bank's interest to have payment behaviour data registered in the Central Credit Information System outweighed a data subject's interest in the removal of these data, even if the registration has an effect on a current loan.

English Summary

Facts

In 2018, the data subject secured a loan from ING bank (the controller). Following this, several unauthorized overdrafts occurred on his checking account, and the controller subsequently placed registrations with respect to the data subject in the Dutch Central Credit Information System (CKI). These registrations contained payment behaviour data, among other things the fact that for a certain period, the data subject was unable to fulfill their payment obligations set out with the controller. The data subject objected the CKI registrations on the basis of Article 21 GDPR, explaining that it had an impact on a loan he was taking out for a new house. The controller denied the request and further considered it as inadmissible under national provisions.

Holding

The court dismissed ING's plea for inadmissibility under national provisions.

The court then clarified that under national law, credit providers are mandated to process personal data and participate in the Central Credit Information System. The aim of the provision is twofold: firstly, it seeks to protect consumers from over-indebtedness and secondly, shield creditors from non-paying borrowers.

The court added that the rejection of a request for data deletion under Article 21 GDPR needs to be justified by a compelling legitimate interest, subject to the principles of proportionality and subsidiarity. Legitimate interest must be assessed on the basis of currently known facts and circumstances of the case, including those after the CKI registration.

The court pointed out that the data subject had inconsistent debt repayment patterns but fully cleared his debt in 2023 (i.e. after the CKI registration). In the balance of interest, the court considered that the controller's interest in maintaining the registration outweighed the data subject's interest in their removal. Consequently, the court dismissed the appeal.

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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.

COURT OF AMSTERDAM
Private law department, civil preliminary relief judge

case number / roll number: C/13/734199 / KG ZA 23-440 DvH/MAH

Minutes of oral judgment on 31 May 2023

in the case of

[plaintiff] ,

living in [town] ,

plaintiff in summary summons dated 26 May 2023,

lawyer mr. P. Thole in Alkmaar,

in return for

the public limited company

ING BANK NV,

Based in Amsterdam,

defendant,

lawyer mr. D.J. Posthumous in Amsterdam.

The parties will hereinafter be referred to as [plaintiff] and ING.

The hearing will be held in the building of this court to deal with a claim in summary proceedings.

Nowadays Mr. R.A. Dudok van Heel, preliminary relief judge, and mr. M.A.H. Verburgh, Registrar.

Appearing after the case is called:

- [claimant] with Mr. Thole,

- on the ING side: [name] (Special Administration employee) with mr. Posthuma.

1
1. The procedure
During the oral hearing on May 31, 2023, [plaintiff] argued and claimed in accordance with the summons. ING has put forward a defense partly on the basis of a deed submitted in advance. Both parties have submitted exhibits and pleadings. The hearing of the case has been closed and an oral decision has subsequently been made. Pursuant to Article 29a paragraph 3 of the Code of Civil Procedure, this official report has been drawn up, which will be issued to the parties on 1 June 2023.

2The oral pronunciation
Facts

2.1.
[plaintiff] lives with his partner and five-month-old child in a rented house of 79 m2 with two bedrooms.

2.2.
[claimant] had (until 2020) a current account with ING with number [account number] and, since August 2018, a personal loan (the credit) of € 15,000.00 (with contract number: [contract number]). In 2019, unauthorized overdrafts arose on the current account and arrears in installment payments on the credit. In 2020, the debit balance on the payment account and the remaining outstanding loan have been claimed. In that context, ING has placed registrations with regard to [claimant] in the CKI (Central Credit Information System) of the BKR (Foundation Bureau Credit Registration).

2.3.
In the CKI, an arrears (special code A) and claiming of the arrears (special code 2) are currently registered with regard to the payment account of [claimant] as of 18 January 2020. With regard to the credit, codes A and 2 are also registered as of April 14, 2020. The practical end date for both is 10 January 2023.

2.4.
On 24 February (and 11 May) 2023, ING was requested on behalf of [plaintiff] via Vesting Finance to remove the BKR registrations from the CKI. The requests were denied on March 23 (respectively May 11), 2023.

2.5.
On March 17, 2023, [plaintiff] signed a purchase agreement for the purchase of a house in Maasdijk for € 400,000.00. The purchase agreement contains a financing condition, which - after extension - can be invoked no later than 31 May 2023.

2.6.
[plaintiff] claims in these preliminary relief proceedings the removal of the BKR registrations, under penalty of a penalty, with an order against ING to pay the legal costs and subsequent costs, with statutory interest. ING is defending this.

Judgement

2.7.
[plaintiff] has an urgent interest in his claim because he can invoke the financing reservation no later than today.

2.8.
ING's appeal for inadmissibility is rejected. The term in Article 35 paragraph 2 of the General Data Protection Regulation (UAVG) Implementation Act applies exclusively to the interested party who wishes to make use of the petition procedure regulated in that article (conclusion/appeal for cassation in the interest of the law of the Attorney General at the Supreme Court). Council of 9 December 2022, ECLI:NL:PHR:2022:1154, 3.6). Now that [plaintiff] has opted to submit his claim in preliminary relief proceedings, he is not bound by this six-week period.

2.9.
Pursuant to Article 4:32 of the Financial Supervision Act (Wft), credit providers, such as ING, are obliged to participate in a system of credit registration, which is administered by the BKR. The purpose of the credit registration is twofold: on the one hand, to protect consumers against over-indebtedness, and on the other hand, to protect credit providers against borrowers who have been shown to be unable or unable to repay their loan. In the context of participating in that system of credit registration, the credit providers process personal data.

2.10.
[claimant], whose personal data are registered with the BKR, has the right to delete his data as referred to in Article 17 of the General Data Protection Regulation (AVG) and the right to object as referred to in Article 21 of the AVG.

2.11.
[plaintiff] has lodged an objection with ING against the processing of his personal data on the basis of Article 21 paragraph 1 GDPR due to his specific situation. Now that ING has rejected that objection, [plaintiff] can ask the court for an effective remedy. The question is whether ING has made it plausible that its compelling legitimate interests (the dual purpose of the credit registration) outweigh the interests of [plaintiff] in this case. This weighing of interests must be made on the basis of the facts and circumstances known now, including those after registration. As with any data processing, the principles of proportionality and subsidiarity must also be complied with.

2.12.
It is considered that ING's interest in maintaining the BKR registrations outweighs [plaintiff's] interest in removing them. This means that his claim to order ING to remove the BKR registrations will be rejected. This is explained as follows.

2.13.
Payment arrangements were initially made, which [plaintiff] has not always complied with punctually. He did occasionally pay off small amounts on his debt, but in September 2022 Vesting Finance again tried to make a serious payment arrangement with [plaintiff]. That did not work then. On 9 January 2023, [plaintiff] paid the remainder (€ 13,390.13) of his debt to ING. That was not even five months ago.

2.14.
According to [plaintiff], he has had a very good business since August 2021. It is therefore incomprehensible that, in response to Vesting Finance's request in September 2022, he did not immediately repay his debt to ING in full, but in December 2022 proposed a payment arrangement of € 600.00 per month. Shortly afterwards, in January 2023 - when the BKR registration apparently seemed to become a problem for him - he was after all able to pay the entire debt at once. This does not show great payment morale.

2.15.
Even more important is that it is not yet possible to speak of a stable financial situation. The company of [plaintiff], which according to him (and according to the financial documents submitted by him) is now running so well, has only been active since August 2021. That is only a period of less than two years.

2.16.
Finally, it is also considered that [claimant]'s wish to move to a larger home - because of a current home that is too small and the intention to expand his family - is understandable and understandable. However, this does not outweigh the interests of ING and the purpose of the credit registration. Granting [plaintiff's] claim would in fact mean that, as soon as a debt has been paid off, anyone who has a good reason to buy a home can achieve removal from the BKR registration. That was not the intention of the legislator when introducing the system of credit registration.

2.17.
[plaintiff] will be ordered to pay the costs of the proceedings as the unsuccessful party. The costs on the part of ING are estimated at:

- court fee € 676.00

- lawyer's salary 1,079.00

Total € 1,755.00.

2.18.
The requested order in subsequent costs is granted in the manner stated in the decision.

3The decision
the preliminary relief judge,

3.1.
refuses the requested provision,

3.2.
orders [plaintiff] to pay the legal costs, estimated at ING to date at € 1,755.00,

3.3.
orders [plaintiff] to pay the costs incurred after this judgment, estimated at € 173.00 in lawyer's salary, to be increased by € 90.00 and the costs of the writ of service in the event that this judgment is served,

3.4.
declares these cost orders immediately enforceable.

Of which this official report has been drawn up, which has been adopted and signed by the preliminary relief judge and the clerk of the court.