AEPD (Spain) - EXP202205104

AEPD - PS/00586/2022
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 6(1) GDPR Article 20 LOPDGDD
Type:	Complaint
Outcome:	Upheld
Started:	04.04.2022
Decided:	17.05.2023
Published:	17.05.2023
Fine:	50,000 EUR
Parties:	Fusiona Soluciones Energéticas, S.A.
National Case Number/Name:	PS/00586/2022
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Spanish
Original Source:	AEPD (in ES)
Initial Contributor:	Mgrd

The Spanish DPA held that the registration of a data subject in a common credit information system was unlawful as the debt was neither 'certain, nor due or payable'. It fined the controller €50,000.

English Summary

Facts

The company Fusiona Soluciones Energéticas, the controler, filed a lawsuit against the data subject due to an alleged debt. In the judgment , a Spanish Court of First Instance dismissed the claim and declared that the data subject had no debt with the controller. Although the decision was final, the controller included the data subject's data in the 'common credit information system' associating them with the alleged debt.

The data subject then filed a complaint with the Spanish DPA, which initiated disciplinary proceedings against the controller.

Holding

The Spanish DPA concluded that the controller violated Article 6(1) GDPR.

According to the DPA, when notifying the credit information system about a debt that is neither 'certain, nor due or payable', as required by Article 20(1) LOPDGDD, the controller cannot rely on the presumption of legitimate interest established by this provision without first carrying out a balancing exercise.

Therefore, the DPA considered that the data processing lacked a legal basis and fined the controlle €50,000 for the violation of Article 6(1) GDPR.

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English Machine Translation of the Decision

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

File No.: EXP202205104
RESOLUTION OF SANCTIONING PROCEDURE
Of the procedure instructed by the Spanish Agency for Data Protection and based on
to the following:
BACKGROUND
FIRST: D.A.A.A. (hereinafter, the claiming party) dated April 4, 2022
filed a claim with the Spanish Data Protection Agency. The
The claim is directed against Fusiona Soluciones Energéticas, S.A. with NIF
A85818797 (hereinafter, the claimed party). The reasons on which the claim is based
are the following:
The complaining party states that their personal data was registered in systems
common forms of credit information in relation to a debt associated with a contract
which he did not do
Along with the claim, the following relevant documentation is provided:
Judgment of the Court of First Instance number X of ***LOCATION.1, dated
November 29, 2021, Verbal Trial XXX/2020, in which ruling dismissed
fully the claim filed by Fusiona Soluciones Energéticas, S.A, against
the complaining party, absolving the affected party of all claims against him.
Oral Proceeding Order XXX/2020, dated January 14, 2022,
in whose agreement the firmness of said resolution is declared.
ASNEF report on the inclusion of the personal data of the complaining party to
instances of the claimed party, on March 22, 2022. Registration date March 28,
June 2019.
SECOND: In accordance with article 65.4 of Organic Law 3/2018, of 5
December, Protection of Personal Data and guarantee of digital rights (in
forward LOPDGDD), said claim was transferred to the claimed party, for
to proceed with its analysis and inform this Agency within a month of the
actions carried out to adapt to the requirements established in the regulations of
Data Protection.
The transfer, which was carried out in accordance with the regulations established in Law 39/2015, of
October 1, of the Common Administrative Procedure of the Administrations
Public (hereinafter, LPACAP) by electronic notification, was not collected by
the person in charge, within the period of availability, understood as rejected
in accordance with the provisions of art. 43.2 of the LPACAP dated May 15, 2022,
as stated in the certificate that is in the file.
Subsequently, the transfer was carried out in accordance with the rules established in the
LPACAP by certified postal mail, was returned due to absence on June 6
of 2022.
No response has been received to this letter of transfer.
THIRD: In accordance with article 65 of the LOPDGDD, when the
before the Spanish Data Protection Agency (hereinafter, AEPD) a
claim, it must evaluate its admissibility for processing, and must notify the
complaining party the decision on the admission or inadmissibility of processing, within the period of
three months from the date the claim was received by this Agency. yes, elapsed
this period, if said notification does not take place, it will be understood that the
processing of the claim in accordance with the provisions of Title VIII of the Law.
Said provision is also applicable to the procedures that the AEPD
would have to process in exercise of the powers attributed to it by other
laws.
In this case, taking into account the foregoing and that the claim is
filed with this Agency, on April 4, 2022, it is communicated that your
The claim has been admitted for processing, on July 4, 2022, after three
months since it entered the AEPD.
FOURTH: On January 17, 2023, the Director of the Spanish Agency for
Data Protection agreed to initiate disciplinary proceedings against the claimed party,
for the alleged infringement of Article 6.1 of the GDPR, typified in Article 83.5 of the
GDPR.
FIFTH: Notification of the Commencement Agreement, through the postal service on the 18th of
January 2023, stating that the postal notification "has been returned to origin by
unknown" on January 27, 2023, and for this reason it was sent to the Single Edictal Board of the
BOE, being published on February 1, 2023.
Subsequently, the Single Authorized Electronic Address (DEHÚ) service certifies:
“date of acceptance by the claimed party on February 9, 2023”.
There is no record that the claimed party has submitted a written statement of allegations to the same.
Article 64.2.f) of Law 39/2015, of October 1, on Administrative Procedure
Common for Public Administrations (hereinafter LPACAP) -provision of which
the party claimed was informed in the agreement to open the procedure establishes that if allegations are not made within the period provided for the content of the
initiation agreement, when it contains a precise pronouncement about the
imputed responsibility, may be considered a resolution proposal. In it
present case, the agreement to initiate the sanctioning file determined the
facts in which the accusation was specified, the infringement of the GDPR attributed to the
claimed and the sanction that could be imposed. Therefore, taking into consideration that
the claimed party has not made allegations to the agreement to start the file and
In accordance with the provisions of article 64.2.f) of the LPACAP, the aforementioned agreement of
beginning is considered in the present case resolution proposal.
In view of all the proceedings, by the Spanish Agency for Data Protection
In this proceeding, the following are considered proven facts:
PROVEN FACTS
FIRST: The claimed party included the personal data of the claiming party in
common credit information systems in relation to a debt associated with a
contract that I do not perform.
SECOND: It appears in the report issued by Equifax dated March 22, 2022,
the following operations in the Asnef file:
Reporting Entity: Fusiona Soluciones Energéticas, S.A.
Registration date: 06/28/2019
Name: A.A.A.
THIRD: In the Judgment of the Court of First Instance number X of
***LOCATION.1, dated November 29, 2021, Verbal Trial XXX/2020, was
confirms in its ruling that the claim made by
Fusiona Soluciones Energéticas, S.A, against the claimant, acquitting the
affected by all claims against him.
In the Verbal Trial Ordinance Diligence XXX/2020, dated January 14,
2022, it is agreed to declare the firmness of said resolution.
FUNDAMENTALS OF LAW
Yo
Competence
In accordance with the powers that article 58.2 of Regulation (EU) 2016/679
(General Data Protection Regulation, hereinafter GDPR), grants each
control authority and as established in articles 47, 48.1, 64.2 and 68.1 of the
Organic Law 3/2018, of December 5, Protection of Personal Data and
guarantee of digital rights (hereinafter, LOPDGDD), is competent to
initiate and resolve this procedure the Director of the Spanish Protection Agency
of data.
Likewise, article 63.2 of the LOPDGDD determines that: "The procedures
processed by the Spanish Data Protection Agency will be governed by the provisions
in Regulation (EU) 2016/679, in this organic law, by the provisions
regulations dictated in its development and, insofar as they do not contradict them, with character
subsidiary, by the general rules on administrative procedures."
II
breached obligation
The claimed party is accused of committing an infringement for violation of Article 6.1 of the GDPR, due to lack of legitimacy in the treatment.
Article 6 of the GDPR, under the heading "Lawfulness of processing", details in its section
1 the cases in which data processing is considered lawful:
"1. Processing will only be lawful if it meets at least one of the following
conditions:
a) the interested party gave his consent for the processing of his personal data
for one or more specific purposes;
b) the treatment is necessary for the execution of a contract in which the interested party
is part of or for the application at the request of the latter of pre-contractual measures;
c) the processing is necessary for compliance with a legal obligation applicable to the
responsible for the treatment;
d) the processing is necessary to protect vital interests of the data subject or of another
Physical person;
e) the treatment is necessary for the fulfillment of a mission carried out in the interest
public or in the exercise of public powers conferred on the data controller;
f) the treatment is necessary for the satisfaction of legitimate interests pursued
by the person in charge of the treatment or by a third party, provided that on said
interests do not outweigh the interests or fundamental rights and freedoms of the
interested party that require the protection of personal data, in particular when the
interested is a child.
The provisions of letter f) of the first paragraph shall not apply to the treatment
carried out by public authorities in the exercise of their functions.”
In parallel, the LOPDGDD, in its article 20, under the rubric of "Systems of
credit information” provides:
"1. Unless proven otherwise, the processing of personal data will be presumed lawful.
related to the breach of monetary, financial or credit obligations by
common credit information systems when the following are met
requirements:
a) That the data has been provided by the creditor or by someone acting on their behalf
or interest.
b) That the data refer to certain, overdue and payable debts, whose existence or
amount had not been subject to an administrative or judicial claim by the debtor or
through a binding alternative dispute resolution procedure between the
parts.
c) That the creditor has informed the affected party in the contract or at the time of
require payment about the possibility of inclusion in said systems, with
indication of those in which it participates.
The entity that maintains the credit information system with data related to the
breach of monetary, financial or credit obligations must notify the
affected by the inclusion of such data and will inform you about the possibility of exercising the
rights established in articles 15 to 22 of Regulation (EU) 2016/679 within
of the thirty days following the notification of the debt to the system, remaining
data blocked during that period.
d) That the data is only kept in the system while the breach persists, with a maximum limit of five years from the expiration date of
the monetary, financial or credit obligation.
e) That the data referring to a specific debtor can only be
consulted when the person consulting the system maintained a contractual relationship
with the affected party that implies the payment of a pecuniary amount or this would have
requested the conclusion of a contract that involves financing, deferred payment or
periodic billing, as happens, among other cases, in those provided for in the
legislation on consumer credit contracts and real estate credit contracts.
When the right to limitation of processing has been exercised before the system
of the data challenging its accuracy in accordance with the provisions of article 18.1.a) of the
Regulation (EU) 2016/679, the system will inform those who could consult it with
accordance with the previous paragraph about the mere existence of said circumstance, without
provide the specific data with respect to which the right had been exercised, in
both are resolved on the request of the affected party.
f) That, in the event that the request for the conclusion of the contract is denied, or it
will not be held, as a result of the consultation carried out, whoever has
Once the system has been consulted, inform the affected party of the result of said consultation.
2. The entities that maintain the system and the creditors, regarding the treatment
of the data referring to their debtors, will have the status of co-responsible for the
data processing, being applicable the provisions of article 26 of the
Regulation (EU) 2016/679.
It will correspond to the creditor to guarantee that the requirements demanded for the
inclusion in the debt system, answering for its non-existence or inaccuracy.
3. The presumption referred to in section 1 of this article does not cover the
cases in which the credit information was associated by the entity that
The system maintains additional information to those contemplated in said
section, related to the debtor and obtained from other sources, in order to carry out
carry out a profiling of the same, in particular through the application of techniques of
credit rating.”
II
Classification and classification of the offense
The infringement for which the party claimed in this agreement is held responsible
of initiation is typified in article 83 of the GDPR which, under the rubric
“General conditions for the imposition of administrative fines”, states:
"5. Violations of the following provisions will be penalized, in accordance with the
section 2, with administrative fines of a maximum of 20,000,000 Eur or, in the case of
of a company, of an amount equivalent to a maximum of 4% of the volume of
overall annual total business of the previous financial year, opting for the one with the highest
amount:
a) The basic principles for the treatment, including the conditions for the
consent in accordance with articles 5,6,7 and 9.”
The LOPDGDD, for the purposes of the prescription of the infringement, qualifies in its article 72.1.
very serious infringement, in this case the limitation period is three years, "b)
The processing of personal data without the fulfillment of any of the conditions of
legality of the treatment established in article 6 of Regulation (EU) 2016/679.”
The documentation in the file shows that the party
claimed violated article 6.1 of the GDPR.
The conduct of the claimed party contrary to the principle of legality has consisted of
notify a credit information system (the ASNEF file) of a debt that,
with respect to the alleged debtor, the claimant, was not true, nor expired nor enforceable, as
requires article 20.1 of the LOPDGDD for the presumption to apply
"iuris tantum" of prevalence of the legitimate interest of the person in charge, without accrediting the
existence of such legitimate interest or the legally required weighting. The treatment
illegal use of the claimant's data, materialized in the inclusion in a file of
solvency without legal basis, began on June 28, 2019, the date of registration of the
debt in the mentioned file.
The claimant has provided a ruling from the Court of First Instance number X of
***LOCATION.1 Verbal Trial XXX/2020 Judgment: 00XXX/2021 before the party
claimed, as well as a report of inclusion in the Asnef system dated March 22
of 2022 in which your personal data is registered by the entity
claimed, with discharge date June 28, 2019.
As Recital 40 of the GDPR clearly states “..For the treatment to be
lawful, personal data must be processed with the consent of the interested party or
on some other legitimate basis established in accordance with the Law, either in the
this Regulation or by virtue of another Law of the Union or of the States
Member States referred to in this Regulation, including the need to comply with the
legal obligation applicable to the data controller or the need to execute a
contract in which the interested party is a party or in order to take measures at the request
of the interested party prior to the conclusion of a contract.”
IV.
Sanction
In order to establish the administrative fine that should be imposed, the following
provisions contained in articles 83.1 and 83.2 of the GDPR, which state:
"1. Each control authority will guarantee that the imposition of fines
administrative proceedings under this article for violations of this
Regulations indicated in sections 4, 5 and 6 are in each individual case
effective, proportionate and dissuasive.
2. Administrative fines will be imposed, depending on the circumstances of each
individual case, in addition to or in lieu of the measures contemplated in
Article 58, paragraph 2, letters a) to h) and j). When deciding to impose a fine
administration and its amount in each individual case shall be duly taken into account:
a) the nature, seriousness and duration of the offence, taking into account the
nature, scope or purpose of the processing operation in question, as well as
such as the number of interested parties affected and the level of damages that
have suffered;
b) intentionality or negligence in the infraction;
c) any measure taken by the controller or processor to
alleviate the damages and losses suffered by the interested parties;
d) the degree of responsibility of the controller or processor,
taking into account the technical or organizational measures that they have applied under
of articles 25 and 32;
e) any previous infringement committed by the controller or processor;
f) the degree of cooperation with the supervisory authority in order to remedy the
infringement and mitigate the potential adverse effects of the infringement;
g) the categories of personal data affected by the infringement;
h) the way in which the supervisory authority became aware of the infringement, in
particular whether the person in charge or the person in charge notified the infringement and, if so, in what
extent;
i) when the measures indicated in article 58, paragraph 2, have been ordered
previously against the person in charge or the person in charge in relation to the
same matter, compliance with said measures;
j) adherence to codes of conduct under article 40 or to mechanisms of
certification approved in accordance with article 42, and
k) any other aggravating or mitigating factor applicable to the circumstances of the case,
such as financial benefits obtained or losses avoided, directly or
indirectly, through infringement.
In relation to letter k) of article 83.2 of the GDPR, the LOPDGDD, in its article 76,
"Sanctions and corrective measures" establishes that:
"2. In accordance with the provisions of article 83.2.k) of Regulation (EU) 2016/679
may also be taken into account:
a) The continuing nature of the offence.
b) The link between the activity of the offender and the performance of data processing.
personal information.
c) The benefits obtained as a consequence of the commission of the infraction.
d) The possibility that the conduct of the affected party could have led to the commission
of the offence.
e) The existence of a merger by absorption process subsequent to the commission of the
violation, which cannot be attributed to the absorbing entity.
f) The affectation of the rights of minors.
g) Have, when it is not mandatory, a data protection delegate.
h) Submission by the person responsible or in charge, on a voluntary basis, to
alternative conflict resolution mechanisms, in those cases in which
there are controversies between those and any interested party.”
In accordance with the precepts transcribed, for the purpose of setting the amount of the sanction of
fine to be imposed in the present case for the infraction typified in article 83.5.a)
of the GDPR for which the claimed party is held responsible, are considered concurrent
the following aggravating factors:
- The evident link between the business activity of the defendant and the
treatment of personal data of clients or third parties (article 83.2.k, of the
GDPR in relation to article 76.2.b, of the LOPDGDD).
 The Judgment of the National Court of 10/17/2007 (rec. 63/2006), in which,
with respect to entities whose activity entails the continuous processing of
customer data, indicates that "...the Supreme Court has understood that
recklessness exists whenever a legal duty of care is neglected, that is
that is, when the offender does not behave with the required diligence. And in the
assessment of the degree of diligence, special consideration must be given to the
professionalism or not of the subject, and there is no doubt that, in the case now
examined, when the appellant's activity is constant and abundant
handling of personal data must insist on rigor and exquisite
Be careful to comply with the legal provisions in this regard.”
The balance of the circumstances contemplated in article 83.2 of the GDPR, with
regarding the offense committed by violating the provisions of article 6.1 of the
GDPR allows a penalty of 50,000 euros (fifty thousand euros) to be set.
Therefore, in accordance with the applicable legislation and assessed the criteria of
graduation of sanctions whose existence has been accredited, the Director of the
Spanish Data Protection Agency RESOLVES:
FIRST: IMPOSE FUSIONA SOLUCIONES ENERGÉTICAS, S.A., with NIF
A85818797, for a violation of Article 6.1 of the GDPR, typified in Article 83.5
of the GDPR, a fine of 50,000 euros (fifty thousand euros).
SECOND: NOTIFY this resolution to FUSIONA SOLUCIONES
ENERGÉTICAS, S.A.
THIRD: Warn the penalized person that they must make the imposed sanction effective
Once this resolution is enforceable, in accordance with the provisions of Article
art. 98.1.b) of Law 39/2015, of October 1, on Administrative Procedure
Common of Public Administrations (hereinafter LPACAP), within the payment period
voluntary established in art. 68 of the General Collection Regulations, approved
by Royal Decree 939/2005, of July 29, in relation to art. 62 of Law 58/2003,
of December 17, by means of its income, indicating the NIF of the sanctioned and the number
of procedure that appears in the heading of this document, in the account
restricted IBAN number: ES00-0000-0000-0000-0000-0000 (BIC/SWIFT Code:
CAIXESBBXXX), opened on behalf of the Spanish Data Protection Agency in
the banking entity CAIXABANK, S.A. Otherwise, it will proceed to its
collection in executive period.
Once the notification has been received and once executed, if the execution date is
between the 1st and 15th of each month, both inclusive, the term to make the payment
voluntary will be until the 20th day of the following or immediately following business month, and if
between the 16th and the last day of each month, both inclusive, the payment term
It will be until the 5th of the second following or immediately following business month.
In accordance with the provisions of article 50 of the LOPDGDD, this
Resolution will be made public once the interested parties have been notified.
Against this resolution, which puts an end to the administrative process in accordance with art. 48.6 of the
LOPDGDD, and in accordance with the provisions of article 123 of the LPACAP, the
Interested parties may optionally file an appeal for reversal before the
Director of the Spanish Agency for Data Protection within a period of one month from
count from the day following the notification of this resolution or directly
contentious-administrative appeal before the Contentious-administrative Chamber of the
National Court, in accordance with the provisions of article 25 and section 5 of
the fourth additional provision of Law 29/1998, of July 13, regulating the
Contentious-administrative jurisdiction, within a period of two months from the
day following the notification of this act, as provided for in article 46.1 of the
referred Law.
Finally, it is noted that in accordance with the provisions of art. 90.3 a) of the LPACAP,
may provisionally suspend the firm resolution in administrative proceedings if the
The interested party expresses his intention to file a contentious-administrative appeal.
If this is the case, the interested party must formally communicate this fact through
writing addressed to the Spanish Data Protection Agency, presenting it through
of the Agency's Electronic Registry [https://sedeagpd.gob.es/sede-electronicaweb/], or through any of the other registries provided for in art. 16.4 of the
aforementioned Law 39/2015, of October 1. You must also transfer to the Agency the
documentation proving the effective filing of the contentious-administrative appeal. If the Agency was not aware of the filing of the appeal
contentious-administrative proceedings within a period of two months from the day following the
Notification of this resolution would terminate the precautionary suspension.
Mar Spain Marti
Director of the Spanish Data Protection Agency