Gerechtshof Amsterdam - 200.258.736/01
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| GHAMS - 200.258.736/01 | |
|---|---|
 | |
| Court: | GHAMS (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 15 GDPR |
| Decided: | 03.03.2020 |
| Published: | 06.07.2020 |
| Parties: | ABN AMRO |
| National Case Number/Name: | 200.258.736/01 |
| European Case Law Identifier: | ECLI:NL:GHAMS:2020:648 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | uitspraken (in Dutch) |
| Initial Contributor: | n/a |
The Court confirmed that the appellant is not entitled to receive the information requested to ABN AMRO on the basis of the GDPR, considering they were not personal data.
English Summary
Facts
In the context of a litigation with his brother, the applicant requested access to a series of banking information to ABN AMRO, which refused to grant access to these data.
Holding
Court of Appeal is of the opinion that the documents as such could not be qualified as personal data within the meaning of the Wbp and the AVG: the requested data mainly relate to information regarding persons working at ABN AMRO, the question as to which persons had access to certain data and the question as to why, when and by whom the acts referred to by [Appellant 1] were performed. He also requested a large number of reports of telephone conversations and e-mail correspondence. On the basis of the CJEU case-law in Y vs MS and the Supreme Court, it cannot be said that such data can be regarded as personal data, since these (internal) documents relating to certain acts of ABN AMRO are not in themselves data about [Appellant 1], and these documents as such cannot be checked or corrected by [Appellant 1]. Therefore, ABN AMRO cannot be obliged to grant access to or a copy of these documents by invoking the Wbp and the AVG.
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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.
Search result - view documentECLI:NL:GHAMS:2020:648
Authority
Amsterdam Court of Appeal
Date of pronunciation
03-03-2020
Date of publication
06-07-2020
Case number
200.258.736/01
Jurisdictions
Civil Justice
Special features
Appeals
Decision
Content indication
Right of inspection pursuant to the Personal Data Protection Act (Wbp) and the General Data Protection Regulation (AVG).
Sites
Rechtspraak.nl
Enriched pronunciation
Ruling
COURT IN AMSTERDAM
Department of Civil and Tax Law, Team I
case number : 200.258.736/01
case numbers/rekestnummer rechtbank Noord-Holland : C/15/273938 / HA RK 18-80
C/15/276302 / HA RK 18-116
order of the multiple civil chamber of 3 March 2020
regarding
1[appellant sub 1] ,
2. [appellante sub 2] ,
both living at [residence] ,
appellants,
by
ABN AMRO BANK N.V.,
established in Amsterdam,
Intimate,
Lawyer: Mr. R.L. Ubels in Amsterdam.
1Process
1.1
Appellants are hereinafter jointly referred to as [Appellants] and separately as [Appellant sub 1] and [Appellant sub 2]. Intimidants will hereinafter be referred to as ABN AMRO.
1.2
1.2 [Appellants] lodged an appeal with the Court of Appeal on 1 May 2019, received at the Court Registry on 1 May 2019, against the order of the Noord-Holland District Court of 4 February 2019 (hereinafter referred to as: the contested order). The notice of appeal seeks that the Court of Appeal set aside the order under appeal and, provisionally and provisionally enforceable, grant the applications of [appellants] under the Personal Data Protection Act (Wet bescherming persoonsgegevens (Wbp)) and the General Data Protection Regulation (Algemene Verordening datsbescherming (AVG)), set aside the order of [appellants] to pay the costs of the proceedings at first instance and allow [appellants] to lodge the notice of appeal without legal representation, all this with an order that ABN AMRO pay the costs of the proceedings at both instances.
1.3
On 3 May 2019 the further productions B-30 to B-41 inclusive were received at the Registry of the Court of Appeal by [the appellants].
1.4
On 2 August 2019 a statement of defence from ABN AMRO was received at the Registry of the Court of Appeal. It applied to the Court of Appeal to dismiss [the appellants'] appeal and to uphold the contested order, ordering [the appellants] - provisionally enforceable - to pay the costs of the proceedings, together with additional costs, plus statutory interest on the amounts concerned as from one day after the judgment to be given.
1.5
Further documents from [appellants] were received at the Registry of the Court on 18 December 2019, 23 December 2019 and 30 December 2019.
1.6
The oral hearing of the notice of appeal took place on 10 January 2020. On that occasion [appellants] appeared. [appellant sub 2] explained the notice of appeal on the basis of speaking notes submitted to the Court of Appeal. On the side of ABN AMRO appeared D. Noordhoek and A.F. Ferwerda, both corporate lawyers at ABN AMRO, assisted by mr. Ubels mentioned above, who explained ABN AMRO's defence on the basis of speaking notes submitted to the Court of Appeal. On that occasion ABN AMRO objected to the submission of the further documents mentioned in 1.5 by [appellants] and requested that these be disregarded. To this end it argued that the submission of these documents was contrary to the two-composition rule and the proper order of procedure. The Court of Appeal considers as follows. It is certain that the further documents contain new grievances. In view of the two-conclusion rule contained in Article 347 paragraph 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering; Rv), [appellants] should not have lodged the grounds of appeal against the judgments of the District Court concerned later than in its notice of appeal. It has not appeared that in the present case there is reason to make an exception to the aforementioned (in principle strict) rule. The Court of Appeal therefore ignores these new grievances.
1.7
Subsequently a judgment has been given.
2Features
2.1
In the order under 2.1 to 2.10 the District Court established the facts on which it based its decision. By grounds 5 to 7 [appellants] contest this establishment of facts in a number of respects. In so far as relevant, the Court of Appeal will take this into account in the following. In this case - in so far as relevant for the assessment of the appeal - the following is relevant.
2.2
[appellant sub 1] had joint assets with his brother until 2009. In 2009 these assets were divided between them by means of (real estate) transactions in which ABN AMRO was involved (hereinafter: the division).
2.3
In proceedings before the District Court of Amsterdam, [Appellant sub 1] took the position - in brief - that his brother, ABN AMRO and the office of the civil-law notary involved in the division had acted unlawfully and were liable for the loss that [Appellant sub 1] claims to have suffered as a result of the division and various transfers. In the event of an incidental claim pursuant to Article 843a of the Rv, [the appellant under 1] has requested the submission of correspondence between his brother, ABN AMRO and the civil-law notary involved. By judgment of 9 November 2016, the court rejected all of [Appellant sub 1]'s claims and ordered [Appellant sub 1] to pay ABN AMRO's actual legal costs. To this end, the District Court considered, in summary, that [the appellant sub 1] was expressly aware when the assets were divided up, that it was not apparent that his brother had exerted unauthorised pressure on [the appellant sub 1] during the negotiations for the division, or that [the appellant sub 1] had withheld the underlying documentation, that [the appellant sub 1] was sufficiently aware of all documentation and information, and that it was not clear why [the appellant sub 1] believed that he had been financially disadvantaged by his brother. His incidental claim was rejected on the grounds of lack of interest.
2.4
In the context of the proceedings referred to above, [Appellant sub 1] also submitted a request for a preliminary hearing of witnesses in order to gain an insight into the cause of the disappearance of a sum of NLG 15 million and the extent to which the brother of [Appellant sub 1] , ABN AMRO and the civil-law notary involved played a part in this. By order of
On 9 November 2016, the request was rejected on the grounds of lack of interest. To this end, it was considered that the facts and circumstances of which [the appellant under 1] wishes to gather evidence in the preliminary hearing of witnesses, in view of the above-mentioned judgment of 9 November 2016, cannot contribute to a decision in the proceedings on the merits. By a (final) judgment of 27 November 2018 this judgment was upheld by this court of appeal, with the exception of the order of [appellant sub 1] to pay the full costs of the proceedings.
2.5
Subsequently, [appellants] submitted various requests to ABN AMRO relating to the provision of information.
2.6
By letter of 5 March 2018 [appellant sub 1] submitted a request for information to ABN AMRO pursuant to Section 35 of the Wbp (old). In this letter the following was written, insofar as relevant:
"On the basis of Article 35 of the Personal Data Protection Act, I request, within four weeks of the date of this letter, that you inform me in writing whether you are processing my personal data. If so, I request that you provide me with a comprehensible overview of all personal data that ABN AMRO and in particular your bank's Private Wealth Management department have processed on my behalf, (...).
I would like to receive a copy of my complete client file, including but not limited to
not limited to that, because I assume that these records have been kept by you:
My contact and address details in your systems from the opening of my bank accounts. Namely: my telephone numbers, my address(es) and my email addresses. It also includes the telephone numbers and e-mail addresses actually used by your organisation. Did you use the e-mail address: [e-mail address] in your system? And if so, when and for what matters.
A written elaboration of the telephone conversations you had with me and the conversations you had about my assets.
The inventory of my creditworthiness:
when I bought the apartment at [address 1] in [place A] on October 6, 2000;
ij the purchase of the estate [estate 1] by the [B.V.] on July 5, 2004. This estate was my own home from July 22, 2005 until December 29, 2009;
the purchase of my own home [name of home] , [address 2] in [town B] and the purchase of half of my brother's meadow on December 29, 2009, whereby I had to provide security for a loan from my brother of EUR 1,000,000.
4. Information about the signed opening contracts and 'electronic banking contracts' of the
the following bank accounts and their original names if these have been established in the course of time
time has changed. If this is the case, when this change of name was made.
implemented and by whom: (Annex 1, overview of 15 September 2009 and of 29 December 2009)
2010).
5. The opening contracts of my current and savings accounts with numbers: [1] ;
[2] ; [3] .
6. The 'electronic banking' contract with number: [4] and who had access to which accounts.
account(s) and since when.
7. The opening contracts of the bank accounts of [X] . These are the
accounts with numbers: [5] ; [6] ; [7] .
8. The 'electronic banking contract' with number: [8] and who had access to which
account(s) and since when.
9. I was not the legal representative of [X] . Why was this
account in my name and it was linked to my name. I also want to know when
these accounts have been removed from my banking page without my permission and who
who ordered it and who carried it out. This happened after 2010.
10. The opening contracts of the and/or accounts and the and/or deposit with numbers:
9] and [10] and [11] .
11. The 'electronic banking' with number [12] and who had access to which
account(s) and since when.
12. At which address(es) these above bank accounts were held and when and by whom
the address was changed and with which form. I also want to know who this change of address
and which employee within your organization has implemented this change.
13. All correspondence regarding the deposits on the and/or account, according to my information on
account number [9] such as the offers, contracts and letters, and specifically the
following points.
14. Who advised on the financing of 1 December 2000, who drew up the statement in
the framework of the division of 1 December 2000 within your bank and why was it
statement requested by you in your letter of 23 November 2000 (appendix 2, letter and statement), I would like to receive a copy of all advice letters as well as discussion notes from the Bloemendaal office and the Haarlem office, including Mrs. [J] . Who were the practitioners at the office Bloemendaal next to the bear [W] .
15. Why and by whom and by order of whom was the draft credit agreement drawn up?
of 6 September 2000 amended. This version differs from the final version. The latest
positive attitude clause in the final version has been removed (Annex 3, the
both versions).
16. A copy of the concept and signed deed of pledge. According to the offer letter of 7
September 2000 that was an annex. I don't have that deed of pledge. (appendix 4,
copy of letter dated 7 September 2000, with reference at the bottom to the deed of pledge).
17. A copy of the statement of account in my name from the notary you have in your file of the
economic breakdown of 1 December 2000;
18. A copy of the payment instruction whereby your bank transferred NLG 15,000,000 to the
third party account with the notary.
19. All correspondence regarding the opening of my bank account in Monaco from the branch office
Bloemendaal with Mr [K] of the ABN AMRO bank in Monaco and the explanations provided by the
Mr [W] indicated to Mr [K] with regard to "money laundering" (see point 14 above).
20. Who advised on the financing of the purchase of the apartment of the
[address 1] on 6 October 2000. Why and by whom was the loan granted at the last minute
elevated.
21. Who advised on the financing of the purchase of estate [estate 2] by the
[B.V.] on December 17, 2003. At that time, the loan of 1 December 2000
relieved. What kind of research has been done into the origin of the assets? Was there any
took note of the 'old file' of the transaction of 1 December 2000 and the note
of [Appellant's brother under 1] and me of 24 November 2000 (see above, point 14 and appendix 2).
22. A copy of the signed version of the deposit agreement of which the file of
the Notary had an unsigned version of the '[estate 1]' transaction of 5 July 2004 (appendix 5)
23. Who advised on this financing of the "[estate 1] " transaction and advised to deposit this deposit into a and/or an account? I would like to receive copies of all (advice) letters and call reports.
23. A copy of the notary's statement of account in your file of the transaction of 5 July 2004 of
estate [estate 1] .
25. There were two deposits according to your bank statement (appendix 6). Of the deposit of EUR
1.000.000 I would like to receive a copy of the signed deposit agreement as well as the
terms of this deposit;
26. When and by whom was the deposit of EUR 1,000,000 lifted.
26. Copies of all the letters referred to in the letter of 4 December 2006 (Annex 7).
26. Who carried out the order to have the deposit lifted in 2006 and why on [Appellant's brother sub 1] exclusively?
name was transferred to the and/or deposit?
29. In the roll over agreements of 6 February 2005 of EUR 10,5000,000 and EUR 1,000,000
who [brother of appellant under 1] signed with [estate 1] states in article 13 that [brother of appellant under 1] any change to the
must pass on ownership. On May 22, 2006, I became sole shareholder. Since
when did you know that I was the sole shareholder in the shares of estate [estate 1] B.V. and
who reported this to you?
30. Who manually carried out the assignment of [appellant's brother sub 1] dated 23 November 2009. Why was
I didn't call about that, like you did to [appellant's brother under 1] when it came to my
payment orders (Annex 8).
What legal basis gave you the authority to call [appellant's brother under 1] before my
execute payment orders from my own bank accounts? (appendix 9).
I would like to know what internal procedure should be followed according to the letter from
Ms [V] of 3 December 2009. I would like to receive a copy of this procedure
(Annex 10).
29. My credit files, of estate [estate 2] , [estate 1] , [address 1] , [name of house]
( [address 2] at [place B] ) and the pasture at [place B] and the
accompanying guidance letters.
30. The valuation reports found in the credit files relating to my property,
like the meadow, the house [address 2] , [place B] , [address 1]
and the estates [estate 1] and [estate 2] .
31. According to your own website, the conversation reports about my assets that you very regularly
fed.
32. The compliance forms you processed. Your information about my income and my
power.
33. The name of the person who advised on the credit of December 29, 2009 where I
had to provide third party security for the purchase of my own home as a private individual.
34. What rules did you follow when granting the mortgage loan for your own home as a private individual?
home with me?
35. All email correspondence regarding the financing of the buyout on 29 December 2009 for
as far as my property is concerned: the meadow and my future home,
address 2] , [place B] (Annex 11). [brother of appellant under 1] did not have power of attorney to
to speak to you on my behalf. I would like an explanation as to why Mr. [P] only
acting with [appellant's brother sub 1] to talk about my affairs and possessions.
36. Who within your organisation approved the draft deeds of the notary on 29 December
2009 that I was party to. Please have a copy of this correspondence and approval. Who in
your organization approved the notary's statement of 29 December 2009."
2.7
By letter dated 30 March 2018, ABN AMRO rejected the request.
2.8
By letter of 9 May 2018, [Appellant under 1] submitted a request for information to ABN AMRO pursuant to Section 35 of the Wbp (old). In this letter the following was written, insofar as relevant:
"On the basis of Article 35 of the Personal Data Protection Act, I request the following within four weeks of
date of this letter to inform me in writing whether you are processing my personal data which
concerns the following telephone numbers, please give me a comprehensible overview of
all personal data and conversations provided by ABN AMRO, in particular the Private Wealth department
Management of your bank has processed mine.(...)
2016 compliance form (Annex 1).
On this form the following telephone numbers are listed with my details:
Tel: [private number 1] (private);
Tel: [business number] (business).
I would like to receive an overview of all telephone calls made by the Bank with these numbers.
telephone numbers and a description of the content of these calls for the period 2000
to the present day.
The Bank's contact persons were in any case employees of the PWM department at the Bank.
Amsterdam : [P] , [V] and [C] (last name unknown). They had the
following telephone numbers:
[P] : [phone no.1] and [phone no.2]
V] : [phone no.3]
I would like to have transcriptions of at least:
- the conversations prior to, during and after the transfer of the deposits of EUR 25.000.000 on 23 December 2008, and the breaking open of the deposits, the reversal of these
deposits and other internal consultations with, inter alia, "[C] ";
- the discussions prior to, during and after the transfer on 23 November 2009 of the
deposits;
- the 2009 unbundling talks, which are likely to have started with the
preparation for the cancellation of old mortgages in March 2009 up to and including cancellation
power of attorney for the mortgage of the [address 1] in January 2010;
- the talks in 2010 on the decommitment of the third party security on the house [name of the house] ,
which finally took place in January 2011.
Since at least May 2009, the Bank was aware of my private mobile number: [mobile number 1].
as well as my private correspondence address (appendix 2). I would like an overview from which
it appears that these data have been processed in your systems as well as an overview of the conversations that
were conducted between the Bank and this number.
On behalf of [appellant sub 2], I request, pursuant to Section 35 of the Wbp, an overview of
providing the calls it made to PWM via its mobile number [mobile number 2] ,
her work number [work number] and her private number at [place A] : [private number 2] in the years
2009 and 2010.
This mainly concerns the discussions with [V] in the spring of 2009 on the
designation of the name and/or account of [appellant under 1] and [appellant's brother under 1] and the addition of an
correspondence address/duplicate address.'
2.9
ABN AMRO rejected this request by letter dated 6 June 2018.
2.10
By letter dated 15 May 2018 [appellant sub 2], ABN AMRO requested ABN AMRO to provide information on the basis of Section 35 Wbp (old). In that letter, the following is stated, in so far as relevant:
"With reference to article 35 of the Personal Data Protection Act, I would like to know in writing from you within four weeks of the date of this letter whether ABN AMRO Bank N.V. processes my personal data. If so, please provide me with a comprehensible overview of all the personal data that ABN AMRO Bank N.V. processes on my behalf and indicate this:
What data is involved;
What the purpose or purposes of the processing are;
To which persons, companies and/or other organisations this data has been or will be provided;
Where my data originated from (information about the origin of the data).
2.11
In response to this request, ABN AMRO [appellant sub 2] provided a USB stick with data. [Appellant sub 2] has asked additional questions by e-mail dated 29 June 2018. By letter dated 30 August 2018, ABN AMRO responded to (inter alia) these questions.
3Assessment
3.1
By applications dated 11 May 2018 and 10 July 2018, [appellants] requested the District Court, pursuant to Section 35 of the Wbp (old), to order ABN AMRO to provide the information requested in the letter of 5 March 2018 quoted in paragraph 2.6 or in the letter of 9 May 2018 quoted in paragraph 2.8 (hereinafter: the requests for inspection). By 'increase of claim' of 4 December 2018, they also requested the District Court to impose a penalty payment of €12,000 per week for the period that ABN AMRO would refuse to provide the requested information.
3.2
In the contested order, the District Court rejected the requests and ordered [appellants] to pay the costs of the proceedings. With regard to the application of 11 May 2018, the District Court considered that the vast majority of the requested information does not relate to personal data and, moreover, the requests do not correspond to the purpose and purport of the Wbp (old), since the explanation given by [appellants] shows that the requests are motivated by the desire to gather information for the civil proceedings against the brother of [appellant sub 1] and ABN AMRO. Furthermore, the District Court considered that [appellants] had already attempted to obtain the requested information by means of a request for the preliminary examination of witnesses and by means of an incidental claim pursuant to Section 843a of the Dutch Code of Civil Procedure and that these requests had all been rejected. The request of 10 July 2018, to which, in the District Court's opinion, the AVG applies, was rejected by the District Court on the same grounds now that the purpose and purport of the AVG are the same as the purpose and purport of the Wbp (old).
3.3
Against this decision [appellants] come up with fifteen grievances. ABN AMRO contested the grievances.
3.4
Grounds 1 and 9 up to and including 13 lend themselves to joint handling, since they all oppose the considerations of the District Court that led to the decision that the requests for access to the requested data should be rejected. [Appellants] have, in summary, argued in explanation of these grievances that they have a legitimate interest in the requests, that ABN AMRO - if no overview of the personal data processed is available - must submit all documents and that no grounds for refusal apply. Furthermore, [Appellants] have argued that the Court wrongly assessed the arguments on the basis of which they submitted the requests for inspection, since they do not have to demonstrate a legitimate interest in the exercise of their right of inspection. They argued that they wanted to make use of the right of inspection to determine where and how data about [appellant sub 1] were processed, that it appears from the case law of the Supreme Court that wanting to use information from a procedure under the Wbp (old) for the purpose of civil proceedings is no reason to reject a request such as the present one, and that ABN AMRO has to submit all documents containing the personal data if it cannot provide an understandable overview. In addition, [appellants] have taken the position that ABN AMRO has misled the court by not fully reproducing the text of the judgment of the Supreme Court of the Netherlands of 16 March 2018, ECLI:NL:HR:2018:365, that their requests for inspection are sufficiently specific and that the requested documents contain personal data. Finally, [Appellants] have argued that they cannot be required to state the purpose and scope of their requests for inspection, that the requests for inspection comply with ABN AMRO's instructions, that the requests are independent of the incidental claim pursuant to Article 843a of the Dutch Code of Civil Procedure and the request for the preliminary examination of witnesses, which cannot prevent a request for inspection either.
3.5
Pursuant to Article 48 paragraph 10 of the AVG Implementation Act (Bulletin of Acts and Decrees 2018, 144), the Wbp applies to written requests as referred to in Article 46 of the AVG Implementation Act that are already pending before the court at the time the AVG Implementation Act comes into force. The AVG Implementation Act entered into force on 25 May 2018 (Bulletin of Acts and Decrees 2018, 145). The Court applied the Wbp at the request of [appellants] of 11 May 2018 because the AVG Implementation Act had not yet entered into force at that time. However, on 25 May 2018 Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJEU L 119/1 of 4 May 2016) (hereinafter AVG) became applicable (cf. Article 99(1) and (3) AVG). As of that date, the AVG is binding and directly applicable in every Member State (Article 99(3) AVG), i.e.: irrespective of the possible applicability of the Wbp pursuant to Article 48(10) of the AVG Implementing Act. Against this background, the Court interprets Section 48(10) of the AVG Implementation Act in such a way that the Wbp continues to apply to applications submitted to the court before 25 May 2018, but only in so far as they concern matters not covered by the AVG but by national law and in so far as the Wbp does not conflict with the AVG. Incidentally, it makes only a very limited difference to the decision in the present case whether the Wbp or the AVG is applied. The Court of Appeal will discuss the arguments of the parties below both on the basis of the AVG and on the basis of the Wbp. Therefore, ground 8 does not serve any purpose.
3.6
The purpose of the Wbp (old) is to implement Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJEC L 281) (hereinafter: the Personal Data Protection Directive). It follows from recital 41 in the preamble to the data protection directive that the data subject has a right of access to the data which are the subject of processing and which concern him or herself, so that he or she can satisfy himself as to the accuracy and lawfulness of the information stored about him or her. This right of access is laid down in Article 12 of the Personal Data Protection Directive and implemented in Article 35 Wbp (old). Pursuant to the latter provision, [appellants] have the right to apply to ABN AMRO with a request to inform them whether personal data relating to them are being processed. If such data are processed, a complete overview must be provided in a comprehensible form, a description of the purpose(s) of the processing, the categories of data to which the processing relates and the recipients or categories of recipients, as well as the available information on the origin of the data. It follows from Article 1(a) of the Wbp (old) that the term 'personal data' means any information relating to an identified or identifiable natural person.
3.7
It follows from point 9 in the preamble to the AVG that the objectives and principles of the Wbp will remain in force after the AVG enters into force. Pursuant to Article 15 of the AVG, the person whose personal data are being processed has the right to obtain from the data controller confirmation as to whether or not personal data relating to him or her are being processed and, if so, to obtain access to those personal data and to the processing purposes (among other things), the categories of personal data concerned, the recipients or categories of recipients to whom the personal data have been or will be provided, and the period for which the personal data are expected to be stored or the criteria for determining that period. Article 4 of the AVG provides that the term 'personal data' shall mean any information relating to an identified or identifiable natural person and that 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 one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
3.8
The Court of Justice of the European Union (CJEU), in its judgment of 17 July 2014, ECLI:EU:C:2014: 2081 - in summary and in so far as is relevant - considered that although the legal analysis in a 'minute' may contain personal data, it does not in itself constitute such data within the meaning of Article 2(a) of the Personal Data Protection Directive, since such a legal analysis does not provide information on the applicant for the residence permit but, at most, in so far as that analysis is not limited to a purely abstract interpretation of the right, information on the assessment and application of that right by the competent authority to the applicant's situation, that situation being determined in particular on the basis of the personal data of that person held by that authority. Unlike the information on the applicant for the residence permit, which is in the minute and may constitute the factual basis for the legal analysis, such an analysis cannot itself be checked and corrected by the applicant. In those circumstances, extending the right of access of the applicant for a residence permit to that legal analysis would in reality not serve the purpose of the Data Protection Directive but the objective of ensuring him a right of access to administrative documents, which is not covered by the Data Protection Directive. In its judgment of 16 March 2018 (ECLI:NL:HR:2018:365), the Supreme Court held - with reference to the considerations of the CJEU in the aforementioned judgment - that the Data Protection Directive on the processing of personal data and on the free movement of such data, implemented by the Personal Data Protection Act (Wbp), enables the data subject to check whether his personal data are correct and have been processed lawfully, in order to protect the data subject's right to respect for his privacy. This check can then lead to the rectification, erasure or blocking of the data. The purpose of the action in those proceedings was to obtain information for the purposes of judicial proceedings and not the purpose for which the Directive protects personal data, so that no personal data within the meaning of that Directive were involved.
3.9
Although it can be assumed that the documents requested by [the appellant under 1] and reproduced in sections 2.6 and 2.8 may contain personal data of [the appellant under 1], the Court was of the opinion that these documents as such could not be qualified as personal data within the meaning of the Wbp and the AVG. After all, the requested data mainly relate to information regarding persons working at ABN AMRO, the question as to which persons had access to certain data and the question as to why, when and by whom the acts referred to by [Appellant under 1] were performed. He also requested a large number of reports of telephone conversations and e-mail correspondence. On the basis of the aforementioned considerations of the CJEU and the Supreme Court, it cannot be said that such data can be regarded as personal data, since these (internal) documents relating to certain acts of ABN AMRO are not in themselves data about [Appellant sub 1], and these documents as such cannot be checked or corrected by [Appellant sub 1]. Therefore, ABN AMRO cannot be obliged to grant access to or a copy of these documents by invoking the Wbp and the AVG.
3.10
Furthermore, the Court of Appeal is of the opinion that the requests for inspection do not comply with the purpose and purport of the Wbp and the AVG. As already considered above, the person whose data are processed - in view of the protection of the right to respect for personal privacy with regard to the processing of those data - is entitled to the right of inspection in order to be able to check whether his personal data are correct and are processed lawfully. It appears from the documents and the explanation given by [appellants] on the occasion of the oral hearing on appeal that, in short, they wish to inspect the requested data in order to be able to determine the reason for certain actions taken by ABN AMRO with regard to its assets and personal data. For example, they would like to know why the contact and address details of [Appellant under 1] have changed and why credit agreements have been entered into without him having signed them. On the occasion of the appeal pleadings, [the appellant under 1] also suggested that his details had been changed on the instructions of his brother, in which connection his brother may have had the impression at ABN AMRO that [the appellant under 1] had had a say in the matter. From these statements of [appellants] it has not become plausible that [appellants] wish to inspect the personal data processed by ABN AMRO in order to verify the correctness and lawfulness of the processing thereof. The assertion of [Appellants] that the time limit for submitting an application for revocation with regard to the judgment of this Court of Appeal of 27 November 2018 has expired, does not affect the foregoing. The Court of Appeal concluded that [the appellants] were using the authority to submit requests for inspection for a purpose other than that intended by the Wpb (former) and AVG in the present applications concerning [appellant sub 1].
3.11
With regard to the overview requested by [Appellant sub 2] in its letter of 9 May 2018 regarding the telephone conversations it had with PWM in 2009 and 2010, ABN AMRO argued that it did not have the documents requested by [Appellant sub 2], other than the data already provided to it by USB stick. Contrary to ABN AMRO's assertion that it was unable to retrieve any recordings or transcripts, [Appellants] have not demonstrated that ABN AMRO does have them in its possession. The request for inspection of the data as referred to above is therefore not assignable.
3.12
In view of all the above, grievances 1 and 9 up to and including 13 have failed. In view of all the above, what [appellants] have argued in support of these grievances no longer needs to be discussed.
3.13
With grievance 2, [appellants] complain that ABN AMRO has treated [appellant sub 1] unequally compared to [appellant sub 2]. In response to their request of 15 May 2018 for access to their personal details, they argued that ABN AMRO had provided [Appellant sub 2] with a standard letter and an overview of their personal details, but had not complied with [Appellant sub 1]'s requests for access. Without any further explanation, which was lacking, the Court did not see that [Appellant sub 1]'s situation could be equated to that of [Appellant sub 2]. In view of the foregoing under 3.9, the documents requested with regard to [Appellant sub 1] cannot as such be regarded as personal data, so that ABN AMRO did not have to comply with his request to provide these data. This grievance failed.
3.14
In ground 3, [appellants] argue that the District Court wrongly rejected the request as referred to in Section 46 (6) of the Wbp (old). By doing so, [appellants] ignore the fact that the District Court only has the power, pursuant to this provision, to request the parties and others to provide written information and to submit documents based on them within a term to be determined by the District Court. Together with ABN AMRO, the Court of Appeal is of the opinion that this provision does not confer the right to request the Court to order the parties or third parties to provide the information requested in the preliminary requests, so that ground 3 also fails.
3.15
With ground 4 [appellants] complain that the District Court did not rule on the alleged unlawful processing by ABN AMRO of the personal data of [appellant sub 1]. To this end, they argue that ABN AMRO, contrary to Sections 6, 13 and 34a of the Wbp (old), reversed the change of address previously passed on by [the appellant under 1] without having given instructions to do so. By doing so, the [appellants] disregard the fact that in the present case they (only) requested ABN AMRO to grant the requests for inspection pursuant to Section 35 of the Wbp (old). The question whether the aforementioned change in ABN AMRO's system should be regarded as unlawful processing does not arise in the present proceedings. This ground 4 therefore also fails.
3.16
By ground 14 of appeal, the appellants argued that the order under appeal wrongly ordered them to pay the costs of the proceedings in both cases, with reference to Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter'), under which everyone whose rights and freedoms guaranteed by European Union law have been violated has the right to an effective remedy. In addition, they refer to the judgment of the Court of Appeal of 's-Hertogenbosch of 1 February 2018, ECLI:NL:GHSHE:2018:363, in which the Court (in summary) refrained from ordering the applicant who makes use of his rights under the Wbp (old) and the Personal Data Protection Directive to pay the costs of the proceedings, on the ground that, also in view of the extent of those costs, they must be regarded as an obstacle to the above position and therefore contrary to Article 47 of the Charter. In the opinion of the Court of Appeal, the likelihood of a procedural award in the context of an application on the basis of the Wbp and the AVG does not in itself constitute an obstacle to the right to an effective remedy guaranteed in Article 47 Charter. In so far as such an obstacle can already be assumed, it is important to note the judgment of the CJEU of 27 November 2017 in Case C-73/16 ECLI:EU:C:2017:725 in which it was held, inter alia, that, while Member States are in principle free to determine appropriate compensation for bringing an action before an administrative authority, that compensation may not be at a level which is liable to obstruct the exercise of the right to an effective remedy guaranteed by Article 47 of the Charter. In the present case, in the opinion of the Court of Justice, there is appropriate compensation, so that there is no reason to dispense with an order for costs under Article 47 of the Charter. This leads to the conclusion that ground 14 fails.
3.17
Now that the Court has rejected the requests of [appellants], there was no reason to give an opinion regarding the additional request of [appellants] to impose a penalty payment of €12,000 per week for the period that ABN AMRO would refuse to provide the requested data. Grief 15 fails.
3.18
The conclusion is that the grievances fail. The contested decision will be upheld. As the unsuccessful party, [Appellants] will be ordered to pay the costs of the appeal.
4Decision
The court:
- upholds the contested order;
- orders [appellants] to pay the costs of the appeal proceedings and estimates those costs, insofar as they have been incurred to date on the part of ABN AMRO, at € 741 in disbursements and € 2,148 for the salary of the attorney at law.
This order was made by A.M.A. Verscheure, F.J. Verbeek and A.C.M. Kuypers and was pronounced publicly on 3 March 2020 by the District Court.
