Rb. Amsterdam - C/13/702712/HA RK 21-186
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| Rb. Amsterdam - C/13/702712/HA RK 21-186 | |
|---|---|
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| Court: | Rb. Amsterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 17 GDPR |
| Decided: | 27.07.2021 |
| Published: | 25.08.2021 |
| Parties: | Rabobank |
| National Case Number/Name: | C/13/702712/HA RK 21-186 |
| European Case Law Identifier: | ECLI:NL:RBAMS:2021:4315 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | n/a |
The District Court of Amsterdam rejected a claimant's request for the removal of her personal data by Rabobank from various financial registers. The interests of this registration for the financial sector were considered to be greater than the individual interest of the claimant, who could not reasonably demonstrate the significant adverse affects.
English Summary
Facts
The claimant primarily requested that the defendant, Rabobank, remove her data from the registers related to money laundering and secondly, if the court decided not to remove the data, to shorten the retention period of the entries in these registers, which by law is 8 years.
The claimant's data had been inserted in various registers as a result of suspicious transactions on her Rabobank bank account. There were suspicions that the funds originated from criminal activity. The claimant contests Rabobank's position.
Holding
The Court was of the opinion that it had been sufficiently established that the claimant was guilty of money laundering, given her contribution to the financial transactions, which took place through her bank account, between two other persons.
The Court first examined the national legislation, specifically Art. 5.2.1 of the Protocol on Incident Warning System for Financial Institutions, in order to then verify whether the GDPR legislation has been respected. The national legislation is used to determine when an inclusion in such registers is necessary. Three conditions are relevant: (a) the conduct(s) of the person to be listed pose a threat to (I) the (financial) interests of clients and/or the financial institution itself or (II) the continuity and/or integrity of the financial sector; (b) it has been sufficiently established that the relevant (legal) person is involved in the conduct(s) referred to under (a). This means that criminal offences are in principle reported; (c) the principle of proportionality has been observed in the sense that it is established that the interest of inclusion prevails over the possible adverse effects of inclusion in the register. To conclude, there must be a more serious suspicion of a criminal offence than a reasonable suspicion of guilt.
The Court confirmed the correct recording of the data in the registers on the basis of the above-mentioned assessment framework. The principle of proportionality under the GDPR and condition c of the Protocol entails that the interest in including the data in the register must be weighed against the possible adverse effects on the data subject of the registration. In the context of this assessment, the Court was of the opinion that the claimant has not been able to make it plausible that the registration will have a significant adverse effect on her. Specifically, the claimant cites three adverse consequences, namely she cannot (a) open a bank account anymore, (b) take out a mortgage and (c) take out insurance or a loan. The Court contests the first point (a) as it is legally provided (Basic Bank Account Agreement (Original name of the law: Convenant Basisbankrekening)) that a basic account can always be opened. Points (b) and (c) are not made concrete by the claimant.
According to the Court, the justified interests of the defendant and the entire financial sector cannot be served in any other way than by the registration. The statutory retention period of 8 years was also deemed proportionate by the Court.
The Court weighed the interests of the claimant and the defendant, as well as those of the entire financial sector. It concluded that the interests of the entire financial sector outweigh those of the claimant, as the Court must conclude that the claimant has not been able to make their interests reasonable.
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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.
Body
Court of Amsterdam
Date of judgment
27-07-2021
Date of publication
25-08-2021
Case number
C/13/702712 / HA RK 21-186
Jurisdictions
Civil rights
Special characteristics
First instance - single
Police report
Content indication
GDPR. Oral pronunciation. Rejection of request to bank to remove personal data from IR, IVR and EVR. Debt healing is sufficiently established. Rejection of the alternative request for a shorter registration period. Compliance with proportionality test
Locations
Rechtspraak.nl
Enhanced pronunciation
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Pronunciation
police report
COURT OF AMSTERDAM
Private Law Department
case number / claim number: C/13/702712 / HA RK 21-186
Minutes of oral judgment (order) of 27 July 2021
in the case of
[applicant]
,
residing at [residence] ,
the applicant,
lawyer mr. M.P. Hearts in Rotterdam,
and
the cooperative
COOPERATIVE RABOBANK U.A.,
Based in Amsterdam,
defendant,
lawyer mr. A. van Hees in Amsterdam.
The parties will hereinafter be referred to as [applicant] and Rabobank.
The hearing will be held in the building of this court to deal with the request for removal of personal data from the registers.
Today, Mr. P.J. van Eekeren, judge, and mr. E.H. van Kolfschooten, clerk.
After the case has been declared:
-
[applicant] , aforesaid,
-
Mr [name 1] , the father of [applicant] ,
-
mr. M.P. Hearts, aforesaid,
-
mr. [name 2], advisor security affairs at the Rabobank,
-
mr. K.M. van Zwieten, lawyer of the Rabobank.
An oral hearing was held in this case today, of which a separate official report will be drawn up. The judge has ruled that the verdict will be made orally.
The judge orders the following decision.
1 The review
The request
1.1.
[Applicant] has primarily requested that her data be removed from the following three registers: the Incident Register (IR), the Internal Referral Register (IVR) and the External Reference Register (EV). In the alternative, [the applicant] requested that the time limit for registrations be shortened.
1.2.
Rabobank has argued against this.
Assessment framework
1.3.
The assessment framework in this case is Article 6(1)(f) of the GDPR:
“Processing is necessary for the purposes of the legitimate interests pursued by the controller or a third party, except where the interests or fundamental rights and freedoms of the data subject which require the protection of personal data outweigh those interests, in particular when the person concerned is a child”.
1.4.
Inclusion in the EVR takes place when the following conditions are met (for the elaboration of the aforementioned GDPR assessment framework) in Article 5.2.1. of the Financial Institutions Incident Alert System Protocol (as applicable at the time of the relevant events):
a) the conduct(s) of the person to be disclosed pose a threat to (I) the (financial) interests of clients and/or the financial institution itself or (II) the continuity and/or integrity of the financial sector;b ) it is sufficiently established that the relevant (legal) person is involved in the conduct(s) referred to under a. This means that in principle criminal offenses will be reported;
This means that there must be sufficient concrete facts and circumstances that can lead to the conclusion that an act can be qualified as a criminal offense as referred to in Article 350 of the Criminal Code. In other words, there must be a more serious suspicion of a criminal offense than a reasonable suspicion of guilt.
The review
1.5.
The court will first of all assess the data registration in the EVR on the basis of the aforementioned assessment framework.
1.6.
Rabobank argues that the aforementioned conditions have been met because it is sufficiently established that [applicant] was guilty of culpable money laundering.
1.7.
Debt money laundering requires that the suspect must reasonably suspect that the money originates from some crime. According to settled case law of the Supreme Court, this must involve gross and considerable carelessness with regard to the origin of the good. This is the case if a suspect, upon reflection about the information known to him, could have suspected that the property originated from a crime and he should not have acted as he did without further investigation into the origin of the property. What can be expected of the suspect with regard to the caution to be observed, depends on the circumstances of the case.
1.8.
[the applicant] disputes Rabobank's position and relies on the two statements it made to Rabobank and its statement at the hearing.
The court is of the opinion that it is sufficiently established that [the applicant] was guilty of culpable money laundering. The reason is the following.
1.9.
The following is agreed between the parties.
On 26 October 2019, [applicant] opened a Rabobank account (hereinafter: the Bank Account). The only credit amounts that were subsequently in the Bank Account were transferred thereto by a private person (hereinafter: A), namely:
On November 8, 2019 at 8:49 PM €750 and at 9:18 PM €950, and on November 9, 2019 at 10:20 AM €1,250.
On 8 November 2019 at 9:31 pm (i.e. within fifteen minutes after the entry of a total of €1,700) [applicant] withdrew €1,250 (the maximum of the weekly withdrawal limit) in cash in Amsterdam. The Bank Account was subsequently blocked by Rabobank. On 9 November 2019, [applicant] tried to pay € 307.50 from the bank account at 12:47 pm (i.e. within 2.5 hours after the arrival of the €1,250) at Zara in Amstelveen, and – after an increase via the App of her payment limit up to € 10,000 at 12:50 pm – tried at 12:54 pm to successively withdraw € 500 and € 50 in cash at the Hema in Amstelveen. These withdrawal attempts failed due to the account being blocked. A has reported fraud. [Applicant] initially did not give Rabobank permission to repay the remaining credit balance on the Bank Account, originating from A, to A.
1.10.
In summary, the [applicant] stated the following. The brother of her ex-boyfriend (hereinafter: brother-in-law) called from Thailand with acute financial problems and asked her for financial help, [the applicant] wanted it, but had no money herself. However, brother-in-law had a friend whom [applicant] did not know himself, who had no identification himself and could therefore not deposit money directly to brother-in-law, but could transfer that money to [applicant]'s bank account, after which [applicant] then paid it in cash. was able to withdraw it to transfer it to a brother-in-law in Thailand. On 8 November 2019, immediately after the entry of a total of €1,700 into its Bank account, [the applicant] withdrew €1,250 in cash at 21.31 in Amsterdam, and deposited that amount in cash that same evening in Rotterdam to a brother-in-law in Thailand at Moneygram after she had first had tried unsuccessfully at Western Union where she had been asked for payslips. When the brother-in-law called again for more money, she refused because she was busy with a birthday on November 9, 2019. She wanted to help her brother-in-law, that was all, according to [applicant].
1.11.
[applicant] has not explained (following her statement):
-why and for which purpose the Bank Account was already opened on October 26, 2019, i.e. two weeks before the transfers by A on November 8 and 9, 2019, the only amounts received on this account, while according to her it concerned her contribution on November 8, 2019 to solution of brother-in-law's acute money problems;
-why, as she stated through her counsel for the first time at the hearing, she had opened the Bank Account at the request of her ex-boyfriend;
-why Western Union would have asked her for payslips when it was only about cash-out deposits;
-why she tried again on November 9, 2019 to withdraw money from the Bank Account, even though (after depositing the € 1,250 the night before in favor of her brother-in-law) she had decided not to help her brother-in-law any further financially, and while she knew that the remaining credit balance in the Bank Account came entirely from the friend of the brother-in-law and was intended as financial aid for that brother-in-law.
1.12.
The aforementioned question marks relate to obvious oddities and improbabilities in the course of events outlined by [applicant]. This, all the more without further explanation, seriously detracts from the persuasiveness of her statement.
This is all the more pressing since [applicant] has not substantiated the cash deposit via Moneygram indicated by her with documents, while these must have been issued by Moneygram and [applicant] herself also says that she has proof thereof; it is impossible to see why it did not submit these documents in the proceedings.
1.13.
In the given situation, even if her statement had been followed, [the applicant] could have suspected with some reflection that this was a very unusual situation, so that it would have been reasonable for her to conduct further investigation into this state of affairs, the person of the transferor and the origin of the money received on the Bank Account. [the applicant] should have checked whether this was legitimate, that is, whether this money did not originate from a criminal offence. Without this further investigation, she should not have acted as she did, i.e. withdrawing this money in cash on 8 and 9 November 2019. As a result, she was considerably careless.
1.14.
[Applicant] states that she was gullible and naive, that she therefore knew nothing and that therefore, even in view of her young age (she was 20 at the time of the events), nothing can be blamed on her.
The district court does not agree with this. First of all, not in view of the lack of persuasiveness of her statement as explained above. Moreover, not in view of the fact that on 9 November 2019 [applicant] also tried to make debit card withdrawals from A's remaining money in the Bank Account, while she knew – also according to her statement – that this money did not belong to her, and she once again, when it became clear to Rabobank what the situation was, it initially did not want to cooperate in repayment to A.
In addition to all this, it is established between the parties that [applicant] on 8 November 2018, on which evening she withdrew €1,250 in cash from the Bank account, as explained above, had already withdrawn €1,750 from her ING bank account in the morning. . The customer of that account (B) had become the victim of Whatsapp fraud on that account the day before, on November 7, 2018, and that customer has therefore reported fraud. This factual concurrence means that within three days [applicant] withdrew a total of €3,000 in cash from two accounts in her name, in both cases that money was credited to her account as a result of Whatsapp fraud. This state of affairs cited by Rabobank should have prompted [the applicant] to provide a further explanation, at least in these proceedings, but it also failed to do so. In the absence of this, in view of this concurrence, the credulity alleged by [applicant] cannot be assumed all the more.
1.15.
The fact that no report has been filed against [applicant] and that she (therefore) has not been prosecuted for debt laundering of money originating from fraud, does not lead to a different conclusion in the given circumstances.
After all, in the absence of a (further) sufficiently convincing, consistent and transparent statement from [applicant], it is sufficiently established that [applicant] was guilty of culpable money laundering as referred to in ground law. 1.7. In this way - if not (sufficiently) further contradicted - the necessity test in the GDPR has also been met, see para. 1.3. This also applies to condition b of the Protocol, see r.o. 1.4.
1.16.
Condition a of the Protocol, which amounts to the principle of necessity, is also met. Through her actions, [the applicant] has also made it possible for money received from fraud to end up in the hands of either her or third parties. It is therefore justified that Rabobank no longer has confidence in [applicant] as a client. There is therefore a need for warnings within the financial sector, including Rabobank, to prevent a recurrence. That is a serious interest. After all, debt money laundering is a serious threat to the continuity and integrity of the financial sector.
1.17.
The proportionality principle according to the GDPR and condition c of the Protocol (above) entails that the importance of including the data in the EVR must be weighed up against the possible adverse consequences for the data subject.
[Applicant] first stated in this regard that she can no longer open a bank account anywhere. As Rabobank has argued without being contradicted, under the Basic Bank Account Covenant there is always the option of opening a basic account in order to continue to participate in payment transactions. This is therefore not an interest of [the applicant] to be weighed up .
1.18.
Secondly, [the applicant] has argued that it cannot now take out a mortgage. Rabobank has acknowledged that this is correct in itself. However, [the applicant] has not made it concrete that she currently wants to buy a house for which she needs a mortgage, which she is refused due to the registration. As a result, its interest is currently insufficiently realistic to be taken into account in the aforementioned balancing of interests.
1.19.
Thirdly, [the applicant] has indicated that it is currently unable to take out insurance or a loan. With regard to the insurance, it has not been explained what this refers to. With regard to the loan, it has been explained that [applicant] cannot borrow for, for example, a car or household effects. This also applies to the fact that this has not been made sufficiently concrete. Moreover, [applicant] has a paid job and, as Rabobank has undisputedly argued, she could therefore also save for this instead of borrowing and [applicant] has also indicated that she would like to save. These are therefore not interests that can be included in the balancing of interests.
1.20.
Finally, also in the context of the weighing of interests, the young age and naivety of [the applicant] was invoked. Rabobank has indicated that age in itself can play a role when considering the duration of registration, especially for 18 and 19-year-olds. Based on the considerations in 1.14. this interest is ignored.
1.21.
As a result, registration in the EVR for eight years is proportional in relation to Rabobank's legitimate aim with it, and condition c of the Protocol and the AVG standard are therefore met.
1.22.
Finally, the principle of subsidiarity according to the GDPR and the Protocol is complied with. After all, in the absence of further dispute, it has been established that the aforementioned legitimate interests of Rabobank and the financial sector as such cannot be served in any other way than by means of this registration.
Conclusion
1.23.
The conclusion is that all conditions for data registration in the EVR have been met. This also establishes – if not further contradicted by [applicant] – that the lighter conditions for registration in the IVR and EVR have been met. The primary request for removal from these three registers is therefore rejected. The alternative request to shorten the registration period of eight years will also be rejected on the basis of the foregoing.
1.24.
Since [applicant] has been unsuccessful, she must pay the costs of the proceedings and subsequent costs incurred by Rabobank. These costs are currently estimated at:
- court fee € 667.00
- lawyer's salary 1,126.00 (2.0 points × rate € 563.00)
Total €1,793.00
2 The decision
The court
2.1.
rejects the requests,
2.2.
orders [applicant] to pay the costs of the proceedings, estimated on the part of Rabobank to date at € 1,793.00,
2.3.
orders [applicant] to increase the costs incurred after this decision, estimated at € 163.00 in lawyer's salary, on the condition that [applicant] has not complied with this decision within 14 days of being notified and that the decision is subsequently served has taken place, with an amount of € 85.00 in lawyer's salary and the writ costs of service of the decision,
2.4.
declares this decision provisionally enforceable with regard to the costs order.
This official report has been drawn up, which has been adopted and signed by the judge and the clerk of the court.
