GHAL - 200.186.790/01

Hof Arnhem-Leeuwarden - 200.186.790/01

Court:	Gerechtshof Arnhem-Leeuwarden (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(b) GDPR Article 6(1)(c) GDPR Article 6(1)(f) GDPR Article 10 GDPR
Decided:	28.4.2020
Published:	30.4.2020
Parties:	Stichting De Huismeesters
National Case Number:	200.186.790/01
European Case Law Identifier:	ECLI:NL:GHARL:2020:3374
Appeal from:	Unknown
Language:	Dutch
Original Source:	de Rechtspraak (in NL)

The Arnhem-Leeuwarden Court of Appeal ruled that the processing (inclusion and sharing) by the lessor of a code in a module with the names of tenants for the purpose of allocating public housing, where the code indicates that because of the presence of cannabis the tenancy agreement with this tenant had been terminated, must be assessed in the light of Article 6 GDPR and not Article 10 GDPR. Article 6(1)(f) GDPR provides a sufficient basis for processing.

English Summary

Facts

The housing department of Groningen has a policy according to which the renting agreement can be terminated where the tenants were found to cultivate cannabis in the place allocated to them. They are then put on a list where they are banned from applying to a new housing during 3 years.

The Appellant was evicted from her rental home because of her cannabis plants, a record of which was made by the housing corporation, followed by a 5-year prohibition for the Appellant to rent homes. Her personal data along with the reason for the contract termination (cannabis cultivation) was supposed to be shared with other local organizations and housing corporations according to the agreement against home cultivation of cannabis. On 17 November 2015 the Court of First Instance ruled, among others, in favor of the Appellant’s objection against the sharing of her data according to the agreement and reduced the 5-year prohibition to 2 years.

Both Appellant and the Huismeersters Foundation appealed this decision in the Court of Appeals on several points.

Dispute

One tenant was expelled from his house on this basis and considered that the processing of his data was not compliant with the GDPR. The controller put forward Article 6(1)(b), (c) and (f) GDPR as potential legal bases.

Main questions from data protection perspective were:

• Is the Huismeestes Foundation allowed to share (personal) data of Appellant with other participants of the agreement because Apellant has been evicted from her social rental home due to a hemp farm?

• Does a record of the reason of eviction (cannabis) constitute data relating to criminal convictions and offences according to Article 10 GDPR?

Holding

The Court ruled that the record of the reason of eviction does not constitute data relating to criminal convictions and offences. In this case the record was made by assigning code 2 (2=cannabis) in the field “reason of registration”. According to the Court, this simply marks cannabis being grown in the rental home as a reason for termination of the rental agreement. It does not follow that the Appellant has already been or will be charged under Criminal law.

As to the first question, the Court ruled that legitimate interest was the most appropriate legal basis for the sharing of the Applicants personal data under the agreement against home cultivation of cannabis. The Huismeesters Foundation initially claimed 3 legal bases for the processing: Article 6(1)(c) legal obligation, Article 6(1)(b) contract, and Article 6(1)(f) legitimate interests. The Court rejected the legal obligation because the agreement against home cultivation of cannabis is a policy and not a law. Contract was not applicable as a legal basis because the Appellant was not a party of it, and it was not concluded on her request.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

Ruling

COURT OF APPEAL ARNHEM-LEEUWARDEN

Leeuwarden location

civil law department, trade

court case number 200.186.790/01

(case number of the Northern Netherlands court 4080624)

judgment of 28 april 2020

in the matter of

[appellante] ,

living at [A] ,

appellant in the principal appeal,

Intimidated in the incidental appeal,

in first instance: defendant in convention and plaintiff in counterclaim,

hereinafter [appellante],

Attorney at law: Mr. T.J.J. Bodewes, Groningen office,

by

The Housekeepers Foundation,

based in Groningen,

the defendant in the principal's appeal,

appellant in the incidental appeal,

in the first instance: plaintiff in convention and defendant in counterclaim,

hereafter: The Housemaids,

Attorney at law: Mr. A.J. Klok, Groningen office.
1 The further course of the proceedings on appeal
1.1

The court takes over the content of the interlocutory judgment of 30 October 2018.
1.2

Subsequently, the following documents have been received:

-

Also issue a deed of conditional amendment to the basis of the counterclaim in incidental appeal dated 11 December 2018 of [appellant];
-

deed of further information dated 11 December 2018 of De Huismeesters;
-

deed omiting/explanatory notes (productions) dated 22 january 2019 of [appellant] ;
-

reply deed dated 22 January 2019 from De Huismeesters;
-

deed of release of productions 18, 19 and 20 by memorandum of reply of De Huismeesters;
-

the productions submitted to H16-form by De Huismeesters dated 24 May 2019.

1.3

On 7 June 2019, the parties' competition ordered in the interlocutory judgment of 6 March 2018 took place. Minutes were drawn up of the proceedings at the hearing.
1.4

The parties applied for judgment in the case file sent prior to the hearing of 26 September 2018, which was annulled at the parties' request, supplemented by the abovementioned documents.
2 The established facts

The Court of Appeal bases its appeal on the following facts:
2.1

Since 1 August 2008 the Huismeesters leased to [appellante] and [B] a

dwelling on [a-street 1] in [A] (hereinafter: the dwelling). [appellante] and [B] lived there together with their three minor children.
2.2

The General Rental Conditions De Huismeesters (hereafter: general conditions) apply to the rental agreement. The general terms and conditions contain, where relevant, the following provisions:

"article 2 more than one tenant

1. (...) Each of the tenants shall be jointly and severally liable for the full amount of the rent and service charges and for all other obligations arising for him and for the other tenant(s) from this agreement and the law.

(…)

article 7 the tenant's general obligations

(…)

10. The hirer is not allowed to grow hemp or similar crops in the hired premises, or to carry out any other activities that are punishable under the Opium Act or Penal Code). Acting contrary to this prohibition is so serious that it justifies dissolution of the rental agreement as soon as possible".
2.3

Pursuant to the Housing Act 2014 and the Housing Ordinance 2015 of the Municipality of Groningen (hereinafter: Housing Ordinance), the Board of B&W of the Municipality of Groningen is charged with the distribution of housing in the Municipality of Groningen. In the context of this division of housing, a register of house-hunters is kept, which is further regulated in Section 2 of the Housing Ordinance. This register is the Woningnet system. Section 3 Housing Bye-Laws contains rules on the provision and allocation of housing. Article 2 of the Housing Bye-Law gives the Board of B&W the power to delegate the distribution of housing to the housing corporations in Groningen. The Board of Housing, Spatial Planning and the Environment made use of this power by a decree of 24 January 2017, which came into effect retroactively on 1 July 2015.

Applications from house hunters who wish to qualify for a priority position are handled by the joint venture of the housing corporations Woonurgentie Groningen, formerly called Selection Committee Groninger Corporations. The Woonurgentie Groningen carries out its activities within the framework of the distribution of housing on the basis of a sub-mandate of the Groningen housing corporations.
2.4

The Housekeepers is a party to the Covenant on Tackling Home Farming in Hemp (hereinafter referred to as 'the Covenant'):

the hemp covenant). This is an agreement between the municipalities of Groningen and

Haren, the Groningen Regional Police Force, the Groningen Public Prosecutor's Office, the housing corporations operating in Groningen and Haren and Essent Netwerk B.V. The aim of the covenant is to combat the domestic cultivation of hemp in the Groningen/Haren police district by means of a joint approach. Articles 9, 12 and 13 of the hemp covenant, adopted in 2006 and amended in 2012, read (in part) as follows:

“9. After the dismantling of the hemp farm, the police will, by using the

BPS Information Form, under or pursuant to the provisions of the Police Records Act, the

covenant partners (as well as the UWV and the Tax and Customs Administration) about this immediately if necessary.

inform them so that they take the measures laid down in this covenant. (...)

The information to be transmitted concerns:

Personal details of the suspect;

Location of the nursery;

Date of dismantling of the hemp nursery;

Number of hemp plants/quantity of hemp found;

Situation found (...);

Is there recurrent behaviour, if so, date of previous dismantling;

Indication of the number of previous harvests (the duration of the period in which the

hemp nursery, prior to dismantling by the police, has at least

functioned);

Possible risk to local residents;

File number / mutation number.

(…)

12. Rental termination

If it turns out that there is a hemp nursery in a rented house or appurtenances (...)

the housing corporation shall give the tenant the opportunity to draw up the tenancy agreement.

say. Damage and repair costs as well as loss of rent will be included in

the final reckoning.

The termination has the consequence that the tenant is excluded from the

renting a house of one of the housing corporations in the municipality of Groningen. The

tenant can register as a house seeker, but cannot during these two years

responding to a house via Woningnet. (...)

Judicial procedure

If the tenant does not voluntarily terminate the tenancy agreement, the housing corporation will in a

judicial procedure dissolution of the tenancy agreement and/or eviction of the

claim the property and order the tenant to pay the costs of the proceedings and attorney's fees.

The damage suffered will also be claimed, including repair costs and loss of rent.

As a result of the legal proceedings, the tenant will be for the next five years

excluded from renting a house from one of the housing associations in the municipality

Groningen. The tenant can register as a house seeker, but can during this time

do not respond to a house via Woningnet for five years. (...)

13. The starting point is that repressive measures will be taken against hemp growers under

the motto, "yes, unless. After all, if there are indications of a distressing

case, as a result of which certain measures are not indicated, consultations may be held between the

covenant parties are chosen to implement certain measures under certain conditions.

aprons.

The covenant deliberately does not set out any binding criteria for answering the following questions

of whether there is a distressing case. In practice, each case will be dealt with in a separate

consultations between the partners shall be held to determine which cases are to be identified

as a distressing case. However, repeat offenders will not be considered distressing."
2.5

In 2016, the Groningen housing corporations, including De Huismeesters, adopted the Protocol Tweedekansbeleid en stedelijke registratie Groningen (hereafter referred to as: Protocol Tweedekansbeleid). The Protocol on the Second Chance Policy sets out the conditions and agreements under which the Groningen Housing Association registers the tenant's personal data on behalf of the housing corporations. The Second-degree Policy Protocol includes a scheme for evicted households, which also includes tenants who have evicted their home because of hemp. In the Protocol on Second Chance Policy, the distinction in the hemp covenant between two years in the event of termination by the tenant and five years in the event of termination by the courts has been abolished, and in both situations a period of three years now applies within which households evicted on account of hemp cannot rent a home from a Groningen housing corporation. A signalling module has been developed for the registration of this category of tenants. The registration system means that the housing corporation passes on the method of termination to Woonurgentie Groningen, Woonurgentie Groningen on behalf of the housing corporation registers the details of the termination in the notification module in Woningnet, whereby only employees of the corporations have access to the registration, Every week, Woonurgentie Groningen manually checks whether there is a match (signalling) between the house seeker who registers on Woningnet and a registration in the signalling module and when the maximum registration period is reached, the registration of the person concerned in the signalling module is deleted. Annex 1 to the Protocol on Second Chance Policy lists the data on the evicted household provided and identified by the housing corporation.

A hardship clause has been included at the end of the Second Chance Policy Protocol. A housing corporation may deviate from the Second Chance Policy Protocol and seek advice from the Special Purpose Groups Working Group for the decision to be taken.

The Second Chance Policy Protocol was notified to the Personal Data Authority in a letter dated 26 January 2016 and was included in the administration under number m1612690.
2.6

On 6 January 2015, employees of the Groningen Regional Police raided the home. The mutation report drawn up by the police stated that hemp had been grown in the attic and that 51 pots with plant residues had been found, as well as various attributes for growing hemp such as 14 assimilation lamps, transformers, carbon filters, fans and extractors. In that report, the question "nursery in operation" was further answered: "No. The nursery had just been harvested". Furthermore, this report states that the power supply was not illegally tapped, but that approximately 2.5 times as much power was consumed than the average.
2.7

In a letter dated 25 February 2015 De Huismeesters [appellante] and [B] let

know that it is seeking the dissolution of the tenancy agreement and the eviction of the house by the court. In that letter De Huismeesters subsequently gave [appellant] and [B] the opportunity to terminate the tenancy agreement no later than 6 March 2015, so that they would be excluded from renting housing via the housing corporations in Groningen for three years instead of five.
2.8

The tenancy agreement with [B] was terminated by [B]'s notice of termination with effect from 6 March 2015.
2.9

After having obtained an eviction order by judgment of the Subdistrict Court, [the appellant], together with her children, was evicted from the dwelling on 10 December 2015.
2.10

2.10 Since November 2016, [the appellant] has lived together with her children in a rented social housing unit rented by another housing corporation.
3 The dispute and the decision in first instance
3.1

The Huismeesters has in first instance (in convention) - in summary - claimed the dissolution of the tenancy agreement and the order of [appellant] to vacate the dwelling, with order of [appellant] to pay the costs of the proceedings.
3.2

In the first instance (in conditional counterclaim) [appellant] has - in summary - claimed an injunction against De Huismeesters the (personal) data of [appellant] as referred to in the hemp covenant from the housing corporations and Woningnet N.V. referred to in the hemp covenant. to provide De Huismeesters with the (personal) data of [appellante] already provided in this respect, to remove them (or have them removed) and to keep them (or have them removed) and to exclude De Huismeesters from renting a social housing unit for a longer period than 24 months, starting 6 March 2015, all this under penalty of a fine, with De Huismeesters being ordered to pay the costs of the proceedings.
3.3

In a judgment dated 17 November 2015, the Subdistrict Court granted the dissolution and eviction claimed by De Huismeesters in convention. Also counterclaimed the by [appellant] claimed prohibitions to provide her (personal) data and to exclude her (personal) data for a longer period than 24 months from a rental accommodation, with effect from 1 January 2012.

17 November 2015, all this upon forfeiture of a penalty payment of € 5,000 for each violation thereof up to a maximum of € 100,000. [Appellant] has been charged with the costs of the proceedings in counterclaim and the costs of the proceedings in counterclaim have been compensated between the parties. The more or otherwise claimed has been rejected by the Subdistrict Court.
4 The claims on appeal
4.1

On appeal, [appellant] seeks the setting aside of the judgment of 17 November 2015 in convention and the claims of De Huismeesters in convention (until

termination of the tenancy agreement and eviction of the rented property) to be cancelled after all.

order The Huismeesters to pay the costs of both sets of proceedings.
4.2

De Huismeesters, by statement in reply, increased and claimed the following in support of her claim

Order [the appellant] to pay the costs of the mutation amounting to € 2,725.53 (incl. VAT) and the

overdue rent of € 206.95. In addition, De Huismeesters in incidental apple

set aside the judgment in counterclaim and uphold the forms of order sought

of [appellant] in counterclaim as shown in 3.3 above.
4.3

In a roll order dated 31 January 2017 the Court of Appeal rejected [appellant's] objection to the amendment of the claim.
4.4

In connection with the amended regulations with respect to the protection of personal data following the exchange of memorandums, the Court of Appeal has given the parties the opportunity to comment on this. The (Implementing Act) General Data Protection Ordinance (AVG and UAVG respectively) also served as a basis for [the Appellant's] claims. De Huismeesters did not object to this and the addition did not appear to the court of appeal to be in conflict with the proper order of procedure either. The amended claim will be decided upon.

5. The assessment of the grievances and the claims

in the principal appeal
5.1

In the principal's appeal, [appellant] raised four grievances, of which grievance I relates to the establishment of the facts and grievances II to IV together relate to the question whether the termination of the lease with all its consequences as claimed by De Huismeesters in first instance in a convention is justified in the circumstances of [appellant].
5.2

Now that the Court of Appeal has established the facts again with due observance of the statements of the parties, ground I no longer needs to be discussed separately.
5.3

As far as grievances II up to and including IV are concerned the following applies.
5.4

In the preliminary ruling of the Supreme Court of 28 September 2018 (ECLI:NL:HR:2018:1810) it was considered that the main rule and the unless provision of Section 6:265(1) of the Dutch Civil Code together express the substantive rule of law which, in short, only a shortcoming of sufficient weight entitles the parties to terminate an agreement in whole or in part. This judgment further implies, with respect to the obligation to establish and the burden of proof, that the structure of the main rule and the unless-delivery implies that the creditor must establish and, if necessary, prove that there is a shortcoming on the part of the debtor and that it is up to the debtor to establish and, if necessary, prove the circumstances which relate to the application of the unless-delivery.
5.5

As a starting point the Court of Appeal takes into consideration 2.4.1, first paragraph, of the judgment under appeal, which [the appellant] (rightly) did not contest in appeal, in the sense that in the house rented from De Huismeesters a hemp nursery has been in operation and that this is not allowed pursuant to Article 7.10 of the general terms and conditions applicable to the lease agreement. [Appellant] has stated that she was not aware of the hemp plantation and that it was a shortcoming of her (former) partner [B]. As a contractual co-tenant, [Appellant] is jointly and severally liable for all obligations under the lease, whereby it is irrelevant which of the two tenants is in default (cf. ECLI:NL:HR:2005:AU3255). As a result, [Appellant] , as well as its then co-tenant [B] , failed in its obligations as tenant. Section 6:265 (1) of the Dutch Civil Code shows that De Huismeesters may, in principle, have the lease terminated on the grounds of this shortcoming.
5.6

5.6 [Appellant] argues in appeal, that the member of the law referred to in the said article of the law after unless said exception occurs in this case. To that end, it argued - in summary - that it had no knowledge of the nursery furnished by its partner [B] in the attic of the dwelling, that in this case it was a well-designed nursery that was in no way dangerous, that the nursery did not cause any nuisance to the surrounding area, that her partner who set up that nursery for medical reasons and that [appellant] and her three minor children would be disproportionately affected by their personal circumstances if [appellant] were to lose her home, while the hemp covenant would prevent her from being eligible again for social housing for many years.
5.7

The Housemasters have disputed that [appellant] did not know about the hemp plantation in the attic. [appellant] also states that because of serious chronic back complaints, [B] needed pain relief, that the regular medication worked less than weed, that [B] tried in vain to obtain medicinal weed and that [B] could not buy the quantity he needed with his benefit. Partly against that background and the duration of the infringement, [the appellant] did not, in the opinion of the Court of Appeal, substantiate sufficiently that it did not notice that [B] had built up a professional nursery in the attic of their house, inhabited by themselves and their three underage children, consisting of 14 assimilation lamps, 7 transformers, a time switch, carbon filters, air extractors, ventilators and heaters, and had operated with (at least) 25 plants at all times during a period of one year - to [the appellant] herself. Her offer of evidence cannot repair that. The Court of Appeal therefore disregards this argument.
5.8

Assuming that this was the case, the fact that the hemp nursery was sufficiently soundly constructed, was not a fire hazard, and did not cause any nuisance to the surrounding area, does not put sufficient weight on itself either. Therefore, the specific offer of evidence of [the appellant] does not belong to the Court of Appeal as irrelevant. The Housekeepers have a sufficiently weighty interest in preventing hemp nurseries in her home possession as much as possible, in view of the danger and risk of fire, water leakage, degradation and crime that such nurseries cause in general. It therefore also has a substantial interest in attaching a clear consequence to this and in a rapid end to the use of a dwelling after it has been established that that dwelling has (also) been used for a hemp nursery, especially the [appellant] as tenant and [B] as co-tenant for which she is jointly and severally liable was expressly forbidden to grow hemp in the dwelling.
5.9

The fact that [B] has terminated the tenancy agreement after discovering that a hemp nursery has been driven in the accommodation is also not of sufficient weight. This termination does not detract from the seriousness and duration of the shortcoming.
5.10

Finally, [the appellant] pointed out the far-reaching consequences of termination of the tenancy agreement for her and her three minor children. The Court of Appeal wants to assume that [the appellant] and her children are attached to the dwelling and the surroundings in which they live and that they have been able to find the necessary school and other facilities, but it has neither been stated nor appeared that this will not be possible elsewhere. Moreover, as considered above, the court of appeal assumes that [the appellant] has been aware of the hemp plantation constructed by the contractual co-tenant [B]. [Appellant] is primarily responsible for the situation that has arisen as a result of the presence of a hemp farm. Against the undoubtedly far-reaching consequences of a dissolution and an eviction, partly in consideration of the aforementioned circumstances, also seen in conjunction, there is a serious shortcoming, in view of its nature and duration, for the consequences of which [the appellant] was explicitly warned beforehand, which justifies the dissolution despite the consequences thereof for [the appellant].
5.11

In conclusion, the claimed dissolution of the lease and eviction of the dwelling, as well as the order of [Appellant] to pay the costs of the proceedings, were justly awarded by convention. Grounds of appeal II to IV therefore fail.

increase of the claim of De Huismeesters
5.12

In appeal, the Huismeesters has increased its claim lodged in first instance in convention against [the appellant] in the sense that it additionally claims the unpaid rent for December 2015 of € 206.95 and an amount of € 2,725.53 in mutation costs (relating to the evacuation, cleaning and repair of the dwelling). However, it appears from the statements of De Huismeesters that at the end of 2016 a payment arrangement was made between the parties for these arrears and these costs, as well as for the legal costs in which [the appellant] was convicted in the first instance, set by the parties at a total amount of € 3,600, and that [the appellant] subsequently started to pay from that amount in monthly instalments. De Huismeesters has acknowledged that [appellant] has paid the said amount of € 3,600.00 in comparison of 7 June 2019. Where [appellant] has acknowledged the indebtedness of that amount and has paid in full, it is not possible to see which interest De Huismeesters still has with this increased claim. This claim is therefore not amenable to adjudication.

in the incidental appeal
5.13

De Huismeesters has formulated seven grievances against the verdict of

17 November 2015, as far as counterclaimed. The grievances I and IV oppose the limitation to 2 years of [appellante] 's exclusion by De Huismeesters. Grounds II, III and V object to the prohibition to - in brief - share [appellant's] (personal) data with the other partners of the hemp covenant. Grievance VI is directed against the penalty payment and grievance VII is directed against the compensation of the costs of the proceedings.
5.14

With regard to grievances I and IV, which oppose the claim under II of [appellant], the following applies.
5.15

The purpose of the claim is to prohibit De Huismeesters from excluding [the appellant] from renting social housing for more than two years from one of De Huismeesters. The principle of freedom of contract also applies with regard to the allocation of a rental home. De Huismeesters is therefore in principle free to enter into a rental agreement with a house seeker or not. However, on the basis of the Housing Act, De Huismeesters, as a recognized institution in the sense of Section 19 of the Housing Act, has a special responsibility with regard to housing persons who, due to their income or due to other circumstances, experience difficulties in finding suitable housing (Section 46 paragraph 1 under a of the Housing Act). In addition, the contractual freedom of De Huismeesters is influenced by the powers delegated to the Groninger corporations, including De Huismeesters, in the context of the distribution of housing. It is not disputed that [appellant] can be considered part of the aforementioned target group. This special responsibility and mandated authority bring along that higher demands may be made on De Huismeesters than on a regular landlord when it comes to whether or not to enter into a tenancy agreement and that under circumstances not wanting to enter into a tenancy agreement may be in conflict with the required social care that De Huismeesters has to observe.
5.16

The foregoing however does not take away that De Huismeesters can have such objections with regard to entering into a tenancy agreement with [appellant] that the interest of [appellant] as a house seeker has to give way for this. The interest of De Huismeesters boils down to the fact that there must be sufficient confidence in the fulfilment of the rent obligations by [appellant] . This trust is not there, according to De Huismeesters, with reference to the above mentioned shortcoming, consisting of having a hemp nursery.
5.17

Although De Huismeesters can be followed in this, she makes a big distinction when it comes to the period of exclusion. In the period in question it was the policy of De Huismeesters that when the tenant terminates the tenancy agreement after the discovery of a hemp nursery (requested by the housing corporation) an exclusion period of 2 years - apparently in the letter from De Huismeesters of

25 February 2015 mistakenly referred to as 3 years - a period of exclusion of 5 years applied in the event of not 'voluntary' termination but dissolution of the lease contract by the court. Such a large distinction is not justified by considerations of efficiency and/or saving of costs on the part of De Huismeesters or otherwise. In view of the housing shortage and the importance of decent housing for the target group to which [appellant] belongs, such a large distinction leads to a considerable chance that a tenant will inevitably opt for termination instead of having the ground for dissolution and eviction put forward by the landlord reviewed by the court. As a result, this distinction violates the constitutionally and conventionally protected right to invoke legal protection. As a result, there is no sufficiently weighty ground for the aforementioned major distinction, so that De Huismeesters, because of the social care to be required of it as referred to above, is obliged to apply an equal or nearby period of exclusion as in case of termination of - then - 2 years, also in case of dissolution of the lease by the court.
5.18

The freedom of contract to which De Huismeesters is entitled is thus limited, in the sense that it may be expected of her that she observes her own policy, to be applied in the aforementioned sense. The fact that De Huismeesters meanwhile - together with the other Groningen housing corporations - since June 2016 applies as a policy a uniform exclusion period of three years for tenants who have been evacuated due to having a hemp nursery, regardless of whether they themselves have terminated the tenancy agreement or whether the tenancy agreement has been terminated by dissolution by the court, does not make this any different. After all, in the case of [appellant], as De Huismeesters also stated at the hearing, the 'old' policy continues to apply.
5.19

The above leads to the fact that grievances I and IV in the incidental appeal were presented in vain and the claim under II of [appellant] was rightly granted. Incidentally, the Court of Appeal noted for the sake of clarity that [the appellant] must comply with all other (regular) conditions for the allocation of a rented dwelling and the entering into of the tenancy agreement in order to be able to successfully claim a dwelling from De Huismeesters.
5.20

Regarding the by [appellant] sub I claimed and assigned prohibition to De Huismeesters to share the (personal) data of [appellant] with other partners of the hemp covenant and the against that directed grievances in the incidental appeal the following applies. The injunction to De Huismeesters to remove (personal) data of [the appellant] that had already been provided to the partners of the hemp covenant (or to have them removed) and to keep them removed (or to have them removed) was rejected by the Subdistrict Court. [appellant] did not object to this. That part of the debate was therefore withdrawn from the appeal. It is therefore a matter of whether or not De Huismeesters is allowed to share (personal) data of [the appellant] with the other corporations because [the appellant] has been evicted from her social housing because of a hemp farm (grievances II, III and V).
5.21

The parties have discussed various forms of data sharing. The claim of [appellant] referred to here is, in view of the formulation and the explanation given thereon, on the basis of the hemp covenant and the Protocol Tweedekansbeleid delen van (persoons)gegevens van [appellante] ten aanzien van de hempbouw in haar van De Huismeesters rented house to the other housing corporations and Woningnet N.V. in Groningen.

Assuming this, the receipt by De Huismeesters of the police report based on the Police Records Act and the hemp covenant (as shown in consideration 2.4) and the use of those data - together with the own statements of [appellante] and [B] - by De Huismeesters for the purpose of terminating the lease agreement concerning the rented house in which the hemp nursery was found can be left undiscussed.
5.22

The claim of [appellant] relates to the provision by De Huismeesters of personal data of [appellant]:

-

Woonurgentie Groningen in order to have these data processed in the signalling module belonging to Woningnet, which means that [appellant] cannot be allocated a home for 5 years after the end of the lease agreement with De Huismeesters;
-

the corporate/special target group that wishes to apply the hardship clause laid down in the Protocol on Second Chance Policy.

5.23

In the event of an eviction as a result of the cultivation of hemp at home, the housing corporation in question will, pursuant to Article 6 of the Protocol on Second Chance Policy, Annex I, pass on the following information to Woonurgentie Groningen: name of tenant, gender, date of birth, address of evicted home, frequency of eviction d. by means of code (1st eviction = code 1, etc.), reason registration by means of code and statement (code 1 = rent arrears/ nuisance and code 2 = hemp), date of registration, name and contact details of the evicting corporation and any contact persons. These details will be included in an alert module of Woningnet.nl that is only visible to (authorised employees of) the participating housing corporations and Woonurgentie Groningen.
5.24

On 25 May 2018, the AVG and the AVG Implementation Act entered into force, while in the judgment rendered prior to this date, the court applied the Personal Data Protection Act (Wbp) to this part of the dispute between the parties. Paragraph 10 of Section 48 of the AVG Implementation Act states that legal proceedings and claims already pending at the time this Act came into effect will continue to be governed by the law that applied prior to the AVG Implementation Act coming into effect. The AVG itself does not provide for transitional law. As a European regulation, the AVG will be binding and directly applicable in each Member State from 25 May 2018 (Article 99(3) AVG). 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 lawsuits already pending and claims which were submitted prior to the entry into force of the AVG.

25 May 2018, but only in so far as it concerns subjects that are not covered by the AVG but by national law and in so far as the Wbp does not conflict with the AVG. The Court will therefore first assess [appellant's] claims in the light of the AVG. Incidentally, for the decision in the present case it makes only a very limited difference whether the Wbp or the AVG is applied.
5.25

The data to be provided by De Huismeesters on the basis of the Protocol Tweedekansbeleid as mentioned under 5.23 are personal data in the sense of article 4 under 1 AVG. The forwarding of such personal data to the Woonurgentie Groningen constitutes processing within the meaning of article 4 under 2 AVG. The Housekeepers is the controller (article 4 under 7 AVG). The - in this case - provision of personal data is only lawful if it can be based on one of the principles referred to in Article 6 of the AVG. The Huismeesters has in particular invoked the basis under b (necessary for the execution of an agreement to which [appellant] is a party or to take measures at the request of [appellant] prior to the conclusion of an agreement), under c (necessary to comply with legal obligation resting on De Huismeesters) and under f (necessary for the representation of the legitimate interests of De Huismeesters or a third party). [appellant] has argued that the personal data to be provided by De Huismeesters about her, with regard to the cultivation of hemp in the house rented by her from De Huismeesters, are criminal personal data and that De Huismeesters is not allowed to process those data.
5.26

Pursuant to the AVG and Wbp, criminal personal data are personal data that have to do with criminal convictions and criminal offences, including possible well-founded suspicions/concrete indications that someone has committed a criminal offence, or that have to do with security measures that are related to this, including a judicial prohibition because of unlawful or inconvenient behaviour. This concerns a special category of personal data for which better protection is required. The provision of such data is subject to the stricter rules in Section 10 of the AVG and - insofar as not contrary to these - Sections 22 and 23 of the Wbp. The acceptance of personal data in this special category may not be overly demanding, otherwise the specific legal protection applicable to it will be undermined. On the other hand, the concept of personal data of a criminal nature may not be stretched too much, because otherwise the system laid down in Sections 5 and 6 of the AVG would be overly demanding.

According to established case law under the Personal Data Protection Act - which case law is still relevant because the concepts have not been substantively changed - the assumption and processing of personal data under criminal law does not require a conviction by a criminal court, but must involve such concrete facts and circumstances that they can be qualified as a criminal offence in the sense of Article 350 of the Code of Criminal Procedure. It is therefore a question of whether the data to be processed points in the direction of a heavier suspicion than a reasonable suspicion of guilt (cf. HR 29 May 2009, ECLI:NL:HR:2009:BH4720).
5.27

In this case, the processing of a data consists of a code. The Property Master's Office sends a 'code 2' to Woonurgentie Groningen via the signalling module. As such, this code is not a criminal information. This code stands for 'hemp' and is not in itself a criminal information. In the context of the alert module and its intended use, De Huismeesters indicates with 'code 2' that because of the presence of hemp plants in the dwelling rented from it, the lease agreement with [appellant] has been terminated. This fact - the civil law termination of the tenancy agreement due to hemp cultivation in the house - does not in itself imply a criminal nature either. Under additional facts and/or circumstances it may follow from the designation 'hemp' - by which thus unlawful cultivation under civil law is meant - that, in addition to this unlawful act under civil law, there is (also) a question of criminally culpable conduct. However, in the opinion of the Court of Appeal this is insufficient to qualify the processing of a code 2 as criminal personal data as referred to above in this case. Whether [the appellant] has been or will be prosecuted under criminal law and has been or will be convicted does not simply follow from the mere (civilly unlawful) presence of a hemp plantation in the dwelling, let alone from the processing of 'code 2', all the less in view of the responsibility disputed by [the appellant] in this respect. The fact that, on balance, the code does indicate undesirable tenant behaviour does not make this any different. The conclusion is that the Court of Appeal does not follow [the appellant] in its argument that in its case the processing of its personal data in the notification module is subject to the stricter rules of Section 10 of the AVG. The processing of the data of [appellant] by De Huismeesters on behalf of third parties must therefore be tested against the provisions of Article 6 of the AVG.
5.28

The principles under b and c of article 6 paragraph 1 of the AVG for providing the personal data in annex 1 of the Protocol Tweedekansbeleid are insufficiently substantiated. Thus De Huismeesters has not substantiated the sub b ground with an agreement with or request of [appellant]. Moreover, although the provision of data takes place within the framework of the mandated statutory authority to divide housing, this provision of data is based on policy and not on a statutory obligation. The Court of Appeal is of the opinion that sub f provides a sufficient basis for the provision of data, also in view of point (47) of the preamble to the AVG. In view of the risks that hemp cultivation in general entails for the rented accommodation and the nuisance that this may cause for local residents, there is a special circumstance that may justify a deviation from the allocation rules on the basis of Article 13 paragraph 6 of the Housing Ordinance, for which it is necessary to process the (personal) data relating to the discovery of a hemp farm in [the appellant's] rented accommodation. The mandated Groningen corporations have made use of this (public law) power. As a result, the provision of data takes place to promote the legitimate interests of De Huismeesters and the other housing corporations in Groningen with regard to the public law authority of an efficient housing distribution. Under these circumstances the interest of De Huismeesters in processing outweighs the interest of [appellant] not to do so. For the provision by De Huismeesters of the data referred to in consideration 5.23 Article 6 paragraph 1 under f. therefore provides a sufficient basis.
5.29

The same applies to the personal data to be provided by De Huismeesters within the framework of the hardship clause to be applied in favor of [appellante] in the Protocol Tweedekansbeleid. The application of this hardship clause is based on a request of [appellant] so that the personal data to be provided by De Huismeesters in that context can also be based on article 6 sub a AVG, being the consent of [appellant] as referred to in article 7 AVG. In doing so, De Huismeesters will have to observe the further rules until 25 May 2018 of the Wbp and from 25 May 2018 of the (Uitvoeringswet) AVG. The question of whether De Huismeesters did so in this case does not lie before the court of appeal.
5.30

If the Wbp is applicable, the outcome is no different. The provision of data on the basis of the Protocol Tweedekansbeleid are personal data in the sense of article 1 under a Wbp. The forwarding of such personal data to Woonurgentie Groningen constitutes processing within the meaning of Sections 1(b) in conjunction with Section 5 of the Wpb. The provision of personal data is permitted under Article 8 sub f Wpb. The Protocol on Second Chance Policy was submitted to and registered with the Dutch Data Protection Authority at the beginning of 2016, shortly after the judgment of the Subdistrict Court. The data to be provided pursuant to the Protocol on Second Chance Policy, Annex I, in the case of [the appellant] are not criminal data within the meaning of Section 16 in conjunction with Section 22 of the Wpb.

To the extent that De Huismeesters provides personal data in the context of the application of the hardship clause, this is based on a request made by [the appellant] and, in principle, this transfer of data is therefore also permitted under the Wpb. The Huismeesters will have to observe the further conditions of the Wpb (which was in force until May 25th 2018).
5.31

To that extent grievances II, III and grievance V succeed and there is no ground for granting [appellant's] 's claim under I.
5.32

Ground VI relates to the objection that De Huismeesters has against the fine imposed on it. As far as this penalty payment relates to the prohibition to provide data that has been imposed on her it is justified, but as far as this relates to the prohibition to exclude [appellant] for longer than 24 months it is, in view of the foregoing, in vain. The penalty imposed in the first instance makes no distinction according to offence and has the same maximum for both offences. Unlike in the case of the prohibition to provide information, no consideration is given to the periodic penalty payment in the case of the prohibition to exclude. The purpose of the periodic penalty payment is therefore met by individualising it and attributing it to the prohibitions. This means that now only the ban on exclusion for longer than 24 months will be enforced, the penalty payment will be further determined at € 2,500 per violation, with a maximum of € 50,000. To that extent the grievance succeeds.
5.33

With grievance VII De Huismeesters attacks the in counterclaim determined compensation of costs. According to De Huismeesters [appellant] should be charged with the legal costs of the counterclaim. Since it follows from the above that the counterclaim brought by [the appellant] is partly admissible and partly not, there is no reason to adjudicate differently on the compensation of costs determined in counterclaim at first instance. The grievance fails.
6 The conclusion
6.1

The grievances in the principal appeal have failed, so that the judgment under appeal, in so far as it was delivered by convention, must be upheld.
6.2

The grounds of appeal in the incidental appeal are successful in part, so that the judgment under appeal, insofar as it was given in a counterclaim, must be set aside, with the exception of the prohibition of exclusion of [appellant] for longer than 24 months and the compensation of costs of the proceedings. The prohibition of the provision of (personal) data as referred to in the hemp covenant (and the Protocol on Second Chance Policy that entered into force afterwards) claimed by [the appellant] is still rejected.
6.3

As the unsuccessful party, the Court of Appeal will order [the appellant] to pay the costs of the principal's appeal.
6.4

The costs for the proceedings in principal's appeal on the part of De Huismeesters will be set at € 718,- for court registry fees and € 2.685,- (2,5 point x rate II at € 1.074,-) for a lawyer's salary.
6.5

If not contradicted, the court of appeal will also award the claimed legal interest on the legal costs and the after costs as mentioned below.
6.6

As both parties in the incidental appeal are found to be right and wrong, the costs thereof will be compensated as mentioned below.
7 The decision

The court, on appeal:

in the principal and the incidental appeal

Ratifies the judgment of the Groningen Subdistrict Court of 17 November 2015 in so far as it has been rendered by convention;

sets aside the judgment of the Subdistrict Court of Groningen of 17 November 2015, insofar as it has been rendered in a counterclaim, except insofar as in sub 3.7 The Huismeesters is forbidden to exclude [the appellant] for a period longer than 24 months and in sub 3.9 the costs of the proceedings between the parties have been compensated, confirms this judgment insofar as it has been rendered and does justice again for the rest;

Condemns De Huismeesters to pay a penalty of € 2.500,- for each violation of the prohibition mentioned in sub 3.7 of the judgment of the Subdistrict Court in Groningen of 17 November 2015, up to a maximum of € 50.000,-;

condemns [the appellant] in the costs of the principal appeal, until this decision on the part of De Huismeesters fixed at € 718,- for court fees and at € 2.685,- for salary in accordance with the liquidation rate, to be paid within fourteen days after the date of this judgment, and - in case payment does not take place within the aforesaid term - to be increased with the statutory interest to be calculated from the aforesaid term for payment;

condemns [the appellant] to pay the after costs, estimated at € 157,-, with provision that this amount will be increased by € 82,- in the event that [the appellant] has not complied with this judgment within fourteen days after this judgment has been written and served, all this increased by the statutory interest to be calculated from fourteen days after this judgment has been written and served;

declares this judgment provisionally enforceable;

provides that each party to the incidental appeal shall bear its own costs;

rejects the more or otherwise claimed.

This judgment was delivered by D.H. de Witte, W.F. Boele and M. Willemse and was publicly pronounced by the District Court, in the presence of the Registrar, on

28 April 2020.