RvS - 202201620/1/A3

RvS - 202201620/1/A3
Court:	RvS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 4(1) GDPR Article 6 GDPR Article 17 GDPR Article 82 GDPR
Decided:	16.08.2023
Published:	16.08.2023
Parties:
National Case Number/Name:	202201620/1/A3
European Case Law Identifier:	ECLI:NL:RVS:2023:3130
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	Raad van State (in Dutch)
Initial Contributor:	n/a

Photographs of family home, taken for the purpose of a tax valuation, held to fall within the scope of the Article 4(1) GDPR definition of personal data.

English Summary

Facts

The data subject’s home was photographed in 2012 for the purposes of a tax valuation, under the Property Valuation Act. The photographs were initially processed lawfully (for tax valuation), but then afterwards put in a database and used for other purposes.

The Municipal Executive of Breda (the controller) held these photographs and initially was the body responsible for tax valuations. In 2019, the Municipal Executive of Breda transferred these responsibilities to the West Brabant Tax Authority of Breda, which then became the competent public body for handling tax valuations in Breda.

On 26 April 2020, the data subject (appellant) requested the Municipal Executive of Breda (the controller) to erase the photographs from their internal database. The photographs were focused on the architectural features of the home and the overall state of the property. However, from these photographs, the data subject’s license plate could be seen, as well as framed family photographs in the home.

On 15 May 2020, the Municipal Executive of Breda refused to erase the photographs, because the database that they were held in was transferred to the West Brabant Tax Authority of Breda and erased from the Municipal Executive’s systems. The data subject objected to the Municipal Executive’s refusal and made a formal complaint against the Municipal Executive’s decision through its internal disputes system. On 24 November 2020, the Municipal Executive declared the claim unfounded and rejected the data subject’s request for damages.

On 4 February 2022, the data subject appealed the Municipal Executive’s decision in court. The Court dismissed the appeal and declared the case inapplicable. The data subject appealed this decision. On 4 July 2023 the appeal was declared admissible by the Netherlands’s Administrative Jurisdiction Division of the Council of State (the country’s highest administrative court).

Holding

The Court’s decision addressed two key issues, the applicability of the GDPR to the present case, and in the instance of applicability, the compliance of the Municipal Executive’s actions with the GDPR.

Firstly, regarding the applicable law, the court found that the GDPR was applicable.

The Court found that the photographs fell within the scope of the definition of personal data for the purpose of Article 4(1) GDPR. They noted that not all home valuation photographs would fall within the scope of Article 4(1) GDPR. However, as the photographs contained identifying factors such as the data subject’s number plate, and framed pictures of his family in the house, they fell within the definition of personal data. Thus the case fell within the material scope of the GDPR under Article 2 GDPR.

Secondly, regarding the compliance of the Municipal Executive’s actions with the GDPR.

Moreover, the Court found that the data subject had a right of erasure under Article 17 GDPR. However, the controller (the Municipal Executive of Breda) was justified to reject it, since the photographs had already been erased from the Municipal Executive’s system, when they were transferred to the West Brabant Tax Authority of Breda when they took over the tax valuation duties from the Municipal Executive in 2019.

Lastly, the Court found a violation of Article 6(1) GDPR as the Municipal Executive had established no lawful grounds to the processing following the initial tax valuation.

The Court overruled the lower Court’s decision from 4 February 2022. On the basis of domestic administrative law, it referred the case back to the Municipal Executive to review their earlier decision and reconsider the data subject’s claim. If the Municipal Executive then decided that their actions violated the law, they would be obliged to calculate the damages owed to the data subject based on the guidelines contained in Article 82 GDPR and the Austrian Post Case, C-300/21. In conclusion, the Council of State held that the Municipal Executive did not sufficiently consider their earlier decision to reject the data subject's claim and therefore had to review their earlier decision.

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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.

Ruling

202201620/1/A3.

Date of judgment: 16 August 2023

SECTION

ADMINISTRATIVE LAW

Ruling on the appeal of:

[appellant], residing in Bavel, municipality of Breda,

against the judgment of the Zeeland-West Brabant District Court of 4 February 2022 in case no. 20/10251 in the proceedings between:

[appellant]

and

The Municipal Executive of Breda.

Proceedings

By decision of 15 May 2020, the college rejected [appellant's] request to destroy photographs of his home and his request for compensation.

By decision of 24 November 2020, the college declared [appellant's] objection thereto unfounded.

By judgment of 4 February 2022, the court declared [appellant's] appeal against that decision inadmissible and rejected his request for damages. This ruling is attached.

The [appellant] appealed against this judgment.

The college made a written submission.

[appellant] submitted a further document.

The Division held a hearing on 4 July 2023, at which [the appellant] appeared.

Considerations

Introduction

1.       With effect from 1 May 2019, the Municipal Executive transferred the activities concerning the valuation and handling of notices of objection and appeal concerning the Property Valuation Act (hereinafter: WOZ) to the Belastingsamenwerking West-Brabant (hereinafter: BWB). On 26 April 2020, [the appellant] requested the board and the BWB to destroy all photos of his house taken by an appraiser on 21 September 2012 as part of his objection to the determination of the WOZ value of his house. In doing so, he submitted to both the college and the BWB a request for compensation of €1,000. The college rejected this request on 15 May 2020, as the photos in question had already been removed. Furthermore, the college considers that it did not act unlawfully. The [appellant's] objection to this was declared unfounded by the college on 24 November 2020.

Ruling of the court

2.       The court considered that [appellant], both with regard to his request for destruction of the data and his request for damages, no longer had a procedural interest. The court considered that the photographs have since been destroyed, leaving [appellant] with nothing to gain from the proceedings on this point. In addition, the BWB was held liable on account of the same data processing as the college and the BWB compensated for this damage. Therefore, the college does not have to compensate the damage also for the same damaging act. Due to the lack of procedural interest, the court declared the appeal against the decision of 24 November 2020 inadmissible.

Appeal

Litigation interest

3.       [appellant] submitted reasons that the district court erred in considering that he no longer had an interest in a substantive assessment of his appeal.

3.1.    Unlike the District Court, the Division considers that [appellant] does have a procedural interest in his appeal of 17 December 2020 because his request of 26 April 2020 was not fully complied with. He requested both the college and the BWB to pay €1,000 in damages. The BWB, for processing the photos from 1 May 2019, reimbursed €500 to [appellant]. The college rejected his request for compensation, for processing the photos from 21 September 2012 to 1 May 2019. For processing during that period, he therefore received no compensation. For this reason alone, [appellant] has an interest in his appeal (and appeal).

3.2.    The appeal is well-founded. The judgment of the district court should be set aside. Doing what the district court should do, the Division will pass judgment on [appellant's] appeal.

Assessment of appeal

Legal framework

4.       On 25 May 2018, the General Data Protection Regulation (hereinafter: AVG) became applicable and the Personal Data Protection Act (hereinafter: Wbp) was repealed. In this case, as will be seen below, both the Wbp and the AVG apply. The relevant provisions therefrom are set out in the annex, which forms part of this judgment.

Request for erasure

5.       [appellant] argues that the photographs contain personal data. He further argues that the Board erred in taking the position that the photographs have already been destroyed.

5.1.    Insofar as it concerns his request to remove the photos, this must be assessed by reference to the law that was applicable at the time the college made the decision on the objection, in this case 24 November 2020. At that time, the AVG had already entered into force.

5.2.    Article 4(1) of the AVG reads, "For the purposes of this Regulation, "personal data" shall mean any information relating to an identified or identifiable natural person ("the data subject"); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to that natural person's physical, physiological, genetic, mental, economic, cultural or social identity." The term "personal data" has a broad meaning (see, for example, Court of Justice judgment of 20 December 2017, Nowak, ECLI:EU:C:2017:994, at 34).

5.3.    Not every photograph taken for valuation purposes, taken to record architectural features and condition of a property, contains personal data in the aforementioned sense. According to [appellant], he himself, his wife, his license plate number and a picture frame, with a family member depicted on it, could be seen in the photographs taken of his home, which he claims to still have in his possession. To some extent, this is consistent with what the BWB, to whom the photographs were transferred, stated in the letter dated 2 March 2021, that the photographs contain personal data. In these circumstances, the college's mere assertion in the decision on objection, that this is not the case because the photographs are not traceable to [the appellant], cannot be followed without further substantiation.

5.4.    The argument succeeds.

5.5.    Under Article 17 of the AVG, the data subject has the right to obtain from the controller erasure of personal data concerning him in the cases specified in that article.

5.6.    The College has stated that it no longer has the photographs because they were transferred to the BWB with the transfer of the work. This communication does not strike the Division as implausible. [appellant], by merely stating that the college still has the photographs, has not made the contrary plausible. The request for removal was rightly rejected on this ground alone.

5.7.    The argument does not succeed.

Request for compensation

6.       [The appellant] argued that the Board had unlawfully processed the photos, because he had only given permission to use the photos for the purpose of determining the WOZ value of his house for the year 2012. He argues that he is entitled to (non-material) damages because the board later used the photos for other purposes, including using them as reference property for determining the WOZ value of other properties. [appellant] argues that the board erred in taking the position that he did not suffer any damages as a result of these later processing of the photographs by the board.

6.1.    [the appellant's] request for compensation relates to the damage he allegedly suffered as a result of the data processing operations between 21 September 2012 and 1 May 2019. The lawfulness of the processing operations must be assessed on the basis of the law applicable at the time of those operations. It was argued that the photos were used not only for the purpose of determining the WOZ value of [the appellant's] home for the year 2012, but also later in the period up to

1 May 2019. These are processing operations before and after 25 May 2018. To the extent his request concerns the unlawfulness of the College's actions before 25 May 2018, the old law applies, i.e. the Wbp. For processing operations after 25 May 2018, the AVG applies.

6.2.    Article 8 opening words and (a) of the Wbp, which is in Chapter 2 that deals with the conditions for the lawfulness of processing personal data, reads, "Personal data may only be processed if the data subject has given his unambiguous consent to the processing."

Article 6(1)(a) of the AVG reads, "Processing shall be lawful only if and to the extent that the data subject has given his consent to the processing of his personal data for one or more specified purposes."

Article 4(11) of the AVG reads, "For the purposes of this Regulation, "consent" of the data subject shall mean any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject signifies, by means of a statement or an unambiguous active act, his or her consent to the processing of personal data relating to him or her."

Article 82(1) of the AVG reads, "Any person who has suffered material or immaterial damage as a result of a breach of this Regulation is entitled to receive compensation from the controller or processor for the damage suffered."

6.3.    The decision on objection refers to the opinion of the Advisory Committee on Objections. It states the following:

"The committee considers that the objections raised by the objector cannot automatically lead to the opinion that the taking of the photos is unlawful, as the objector gave permission for the taking of those photos. Nor is the fact that the photos were saved and reused automatically unlawful. After all, it is not unusual for data and other relevant material to be stored in municipal systems for the purpose of decision-making and carrying out municipal duties."

Thus, the decision on objection does not show that the college has verified for which processing and for which purposes the photographs were used. Nor has it verified whether the consent given applies to each of these processing operations. It follows that the decision on objection did not carry out the test required by Article 8 of the PDPA and Article 6 of the AVG.

Therefore, to that extent, the decision on objection was not sufficiently carefully prepared and not properly reasoned.

6.4.    The argument succeeds.

Conclusion

7.       As ruled under 3.2, the appeal is well-founded and the District Court's decision must be set aside. Doing what the court should do, the Division will declare the appeal against the decision of 24 November 2020 well-founded. This decision must be set aside due to violation of Article 3:2(1) of the General Administrative Law Act (Awb) and Article 7:12(1) of the Awb. The college must take a new decision on [the appellant's] objection. If the board concludes therein that there was unlawful conduct, it must decide on the substance of [appellant's] request for compensation. The request must then be assessed on the basis of, inter alia, the Court of Justice's judgment of 26 May 2023, Österreichische Post, ECLI:EU:C:2023:370 and the Division's decision of 2 February 2022, ECLI:NL:RVS:2022:319.

8.       The College must pay the costs of the proceedings.

Decision

The Administrative Law Division of the Council of State:

I. declares the appeal well-founded;

II. sets aside the judgment of the district court of Zeeland-West Brabant of 4 February 2022 in case no. 20/10251;

III. declares the appeal well-founded

IV. sets aside the decision of the Municipal Executive of Breda of 24 November 2020, reference 1.2020.0174.001.

V. orders the Municipal Executive of Breda to reimburse [the appellant] for the costs incurred by him in connection with the handling of the appeal and the appeal, amounting to €133.19

VI. orders the Municipal Executive of Breda to reimburse [appellant] for the court fee of € 452.00 paid by him for handling the appeal.

Thus determined by J.Th. Drop, member of the single-member chamber, in the presence of A.M.E.A. Neuwahl, registrar.

in the presence of A.M.E.A. Neuwahl, Registrar.

Member of the Single Chamber

The Registrar is prevented from signing the judgment.

Delivered in public on 16 August 2023