Rb. Zeeland-West-Brabant - C/02/358389/HA RK 19-110
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| Rb. Zeeland-West-Brabant - C/02/358389/HA RK 19-110 | |
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| Court: | Rb. Zeeland-West-Brabant (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(c) GDPR
Article 16(2) TFEU |
| Decided: | 21. 10. 2019 |
| Published: | 7. 11. 2019 |
| Parties: | Achmea |
| National Case Number: | C/02/358389/HA RK 19-110 |
| European Case Law Identifier: | ECLI:NL:RBZWB:2019:4846 |
| Appeal from: | n/a |
| Appeal to: | Hof 's-Hertogenbosch - 200.270.589 01 and 200.270.589 02 |
| Language: | Dutch |
| Original Source: | de Rechtspraak (in NL) |
The Zeeland West Brabant Court of First Instance confirms the right to erasure regarding credit registrations kept in bank databases.
English Summary
Facts
The applicant requested the Court to remove his credit registration from two bank databases, Achmea and ABN AMRO, because these registrations prevented him from obtaining loans and leases. The claimant based his application on Article 8 of the ECHR and Article 7 of the Charter. In their defence, the banks argued that the processing of the personal data was not based on the data subject’s consent under Article 6(1)(a) GDPR but on compliance with legal obligations under Article 6(1)(c) GDPR and that the data subject did not have the right to object to the processing.
Dispute
The Court had to balance the different interests at stake to assess whether the banks' refusal to erase the personal data was legitimate.
Holding
First of all, the Court described that the objective of credit registration was to protect consumers against excessive lending and to protect providers of credit against borrowers who have not proven their ability to repay the loans.
Then, the Court found that the credit registration system necessarily involves the processing of personal data, protected by Article 16(2) TFEU. It found that personal data can be collected only for specific purposes listed exhaustively under Article 6(1) GDPR.
In addition, the Court stressed the difference between the right to object to processing on the one hand, which applies where the processing is based on Article 6(1)(e) GDPR or Article 6(1)(f) GDPR, and the right to erasure on the other hand, which applies even if the processing is based on Article 6(1)(c) GDPR.
The Court confirmed that in this case the processing was based on Article 6(1)(c) GDPR and that the claimant could ask for the erasure of his personal data. However, the controllers could still refuse the erasure on the basis of compelling legitimate grounds which would outweigh the interests, rights and freedoms of the data subject.
It found that only the “negative” credit registrations prevented the Claimant from obtaining loans and leases but that they were necessary to prevent him from an excessive debt situation.
Finally, regarding the ECHR and the Charter, the Court considered that the ECHR cannot be invoked as an independent legal basis and rejected the arguments related to the Charter without any further explanation.
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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.
DECISION SEAS-WEST BRABANT COURT Location Breda Cluster II Commercial matters Case number / petition number: C/02/358389 / HA RK 19-110 Decision of 21 October 2019 in the matter of [applicant] , living at [residence] , petitioner, attorney mr. R.A.J. Summer at Oosterhout, by 1 public limited company ACHMEA BANK N.V., established in Tilburg, the Netherlands, defendant, Attorney at law F.P. Richel and J.M. Brölmann in Utrecht, 2. public limited liability company ABN AMRO BANK N.V, established in Amsterdam, the Netherlands, defendant, lawyer Mr. C.M. Jakimowicz in Rotterdam, The parties are hereinafter referred to as [applicant], Achmea and ABN AMRO. 1 The proceedings The course of the procedure is evidenced: - the application pursuant to Article 35 of the Law implementing the General Data Protection Regulation, received at the Registry on 9 May 2019, with productions numbered 1 to 44; - the production of works by [the applicant], received at the Registry on 20 August 2019, numbered 45 to 48; - the defence lodged at the Registry on 2 September 2019 by ABN AMRO, containing works numbered 1 to 9; - the statement of defence of Achmea, received at the Registry on 3 September 2019, with the productions numbered 1 up to and including 7; - the deed of submission of Achmea's works, received at the Registry on 6 September 2019; - the oral hearing held on 9 September 2019; - the pleadings of Achmea and ABN AMRO. 2 The dispute 2.1 [applicant] applies to the Court by order, as far as possible enforceable in stock: I. order Achmea and ABN AMRO to remove the special code(s) in the CKI of the BKR in the name of [the applicant] within 48 hours after the date of service, or to keep them removed, on pain of a penalty of € 1,000 for each day that Achmea and ABN AMRO fail to meet this obligation, with a maximum of € 100,000; II. Order Achmea and ABN AMRO to pay the legal costs of these proceedings, including a salary for the (legal) attorney at law and the costs of service of the order to be made by the District Court. 2.2 Achmea and ABN AMRO refute the request. The arguments of the parties are discussed in more detail below, insofar as they are relevant. 3 The assessment 3.1 If, on the one hand, the parties argue that the productions are not contested, or not sufficiently substantiated, and, on the other hand, on the basis of the undisputed content of the productions, the following is established between the parties: - [applicant] was married and has a daughter from 2003 and twins from 2005. After the birth of his first daughter, his mother-in-law from Lithuania came to live with them to help. This increased the cost of living. After the birth of the twin daughters the cost of living increased. - On 27 September 2005 Achmea granted [the applicant] a mortgage loan of € 271,000. - In 2006 [the applicant] fell seriously ill, resulting in a long sickbed. His wife still did not have a job, which caused a difficult financial situation. - On 16 January 2008, ABN AMRO provided [the applicant], who already had a Private Limit Plus account with ABN AMRO, with a loan of € 23,500. - Partly as a result of the difficult financial situation, marital problems arose, which led to the application for divorce in 2009. [applicant] had to leave the marital home, which led to double housing costs. In addition, he had to pay high lawyer's fees, which caused him to run up debts. - In 2009 and 2010 there were arrears in the payment of the mortgage charges. In June/July 2010 the parties agreed that the house had to be sold. After the sale of the house a residual debt of € 68,897.08 remained to Achmea on 18 July 2011. - Payment arrears have also arisen at ABN AMRO, which resulted in ABN AMRO transferring its claims to a collection agency. The debt to ABN AMRO amounted to €24,835.09. - After [the applicant] had already applied for debt assistance via the municipal social service in 2010, he was admitted to the WSNP on 11 March 2013 with a debt of over €100,000. On 9 March 2016, the debt rescheduling scheme was terminated with the provision of a clean slate. - As a result of the clean slate declaration Achmea has written off the residual claim and registered it in the Central Credit Information System (hereinafter: CKI) of the Stichting Bureau Krediet Registratie (hereinafter: BKR). As a result, [the applicant] has an A(chterstand) 2(claim) and 3(write-off) code in the CKI, which code will be removed in March 2021. As a result of this clean slate declaration, ABN AMRO has also written off and registered its claim against [the applicant] in the CKI, giving [the applicant] an (A)chterstand 3 (write-off) coding in the CKI. This coding will also be removed in March 2021. - Since August 2011, [applicant] has been renting a three-room apartment for the amount of € 585,= per month. His three daughters stay with him every other weekend. Since March 2016 he pays € 725,= per month in alimony for his children and makes financial contributions to various costs. - In September 2016, [the applicant] , who has always had a permanent employment contract in previous years, resigned from the Omgevingsdienst Zuid Holland Zuid in Dordrecht. Subsequently, he worked through three secondment agencies as a hirer for municipalities and Omgevingsdiensten as a Wabo case manager, permit grantor and (construction) plan assessor. In January 2018 he registered with the Chamber of Commerce as an independent entrepreneur and in April 2018 he started as a self-employed person. As an independent entrepreneur he performs under the trade name 'Bouwen en Omgeving [Construction and Environment] [applicant] Advies & Consult' the same activities that he previously performed in employment. - By order of Archytes Groep BV, [applicant] has carried out work for Omgevingdienst Rivierenland Tiel. The assignment agreement was entered into for the period from 1 November 2018 to 1 April 2019. For this work [applicant] has charged an average amount of € 10,000 per month. Subsequently, [the applicant] entered into an assignment contract with Field Recruitment CV for the period from 1 April 2019 to 15 August 2019, to carry out work for the municipality of Rotterdam. The agreement was entered into for 36 hours per week at an hourly rate of € 70, = excluding VAT. At the end of March 2019, however, [the applicant] transferred to the municipality of Moerdijk where he started to perform work via the principal Reef on the basis of an assignment agreement dated 4 April 2019. The agreement was entered into for the period from 8 April 2019 up to and including 31 December 2019 and was concluded for a working week of (average) 36 hours at a fee of € 67.50 per hour. [applicant] started work as a licensing authority on 8 April 2019. - At the request of [applicant], CoderingVrij applied to Achmea and ABN AMRO on 14 August 2018 with a request to check whether the registration was made in accordance with the rules of the BKR. In a letter dated 23 August 2018, ABN AMRO indicated that all codings have been notified in accordance with the rules of the BKR and also informed Achmea on 4 September 2018 that all codings are correct. - On 14 September 2018 CoderingVrij asked ABN AMRO to remove the coding. ABN AMRO responded negatively to this request by letter of 18 October 2018. On 26 March 2019 CoderingVrij submitted a new request to ABN AMRO. By letter dated 1 April 2019, ABN AMRO also rejected this request. - On 14 September 2018 CoderinVrij also requested Achmea to remove the coding. Achmea responded negatively to this request by letter of 20 September 2018. On 17 April 2019 CoderinVrij submitted a new request to Achmea, to which no response has (yet) been received. - International Card Services BV did (eventually) comply with CoderingVrij's request to remove the special codes A(chterstand) and 2(residual claim fully due and payable) with regard to a credit granted to [the applicant] in October 2010. 3.2 The [applicant] requests the District Court to remove the negative BKR registrations of Achmea and ABN AMRO, as these registrations hinder him in obtaining a mortgage loan, a business loan and a business car lease. The applicant bases its application on Article 10 of the Constitution, Article 8 of the European Convention on Human Rights (ECHR), Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (Charter) and the General Data Protection Regulation (AVG), in particular Article 17(1)(a), (b), (c) and (d) AVG. He submits that many defendants and/or judges apply the AVG erroneously and apply an incorrect basis when assessing an application such as the present one. An application is often rejected on the grounds of the social importance of the credit registration system. However, this is a political position that is not legally tenable. The starting point of this position is that the collective (interest) must always take precedence over the individual. In the case of fundamental rights, however, the individual should take precedence over the collective. In the present case, it concerns the protection of natural persons in the processing of personal data, which is a fundamental right. Two tests must be carried out in the assessment. The first test is that the data processing must be stopped now that the data subject has withdrawn his/her consent to the processing (Article 6(1)(a) AVG), invoked the right to be forgotten (Article 17 AVG) and/or objected to it (Article 21 AVG), unless the data controller invokes a compelling legitimate ground that outweighs the interests, rights and freedoms of the data subject (Article 21(1) AVG and Article 6(1)(f) AVG). The obligation and burden of proof of the compelling legitimate grounds for processing lies with the controller. The second test is that the controller has to demonstrate that its overriding legitimate interests outweigh the interests or fundamental rights and freedoms of the data subject. This weighing up of interests, which must take place in accordance with the current situation, follows, among other things, from the so-called Santander judgment (ECLI:NL:HR:2011:BQ8097) and involves an investigation into proportionality and subsidiarity. With regard to Achmea, [the applicant] submits that Achmea has not carried out any tests, let alone weighed up the interests. With regard to ABN AMRO, [the applicant] takes the position that ABN AMRO applied the wrong criterion by pointing out the social importance of the credit registration system and not using the objective of the BKR as a criterion. Moreover, ABN AMRO wrongly assumes that a coding can only be changed in special cases and that [the applicant] did not put forward sufficient special and weighty grounds. Also, the test is wrongfully not carried out ex nunc, in view of the argument that at the time the codings were rightly placed and that there were major financial problems at that time. 3.3 Achmea and ABN AMRO put forward as defence - in brief - that [the applicant] cannot rely independently or separately on Article 10 of the Constitution, Articles 7 and 8 of the EU Charter and Article 8 of the ECHR. According to Achmea and ABN AMRO, the [applicant] is not entitled to invoke the right to oblivion as referred to in Article 17 of the AVG. After all, the processing of personal data is not based on consent (Article 6(1)(a) of the AVG) so that [the applicant] cannot invoke Article 17(1)(b) of the AVG. Nor can [the applicant] invoke Article 17(1)(c) of the AVG, since [the applicant] is not entitled to object in accordance with Article 21(1) of the AVG. After all, an objection can only be made against the processing of personal data on the basis of Article 6(1)(e) or (f) of the AVG. However, the personal data are processed on the basis of Article 6 paragraph 1 sub c AVG, since Achmea and ABN AMRO are under a legal obligation to process personal data. Furthermore, Achmea and ABN AMRO are of the opinion that the exception to the right of forgetting as referred to in article 17 paragraph 3 AVG applies. Insofar as this exception does not apply, [the applicant] is also not entitled to a right to forgetting on the basis of Article 17 paragraph 1 (a) and (d) of the AVG, in view of the concrete circumstances of the case. Achmea and ABN AMRO are of the opinion that the BKR registration is not disproportionate and that the subsidiarity test has been met. Admissibility 3.4 The [applicant] lodged his application in good time. He is therefore admissible in his application. The General Data Protection Ordinance (AVG) 3.5 Achmea and ABN AMRO are providers of credit within the meaning of Section 1:1 of the Financial Supervision Act (Wft). Pursuant to Section 4:32 of the Wft they are obliged to participate in a system of credit registration. According to the Explanatory Memorandum, one of the tasks of a credit registration system is 'in any case the collection, recording, organisation and making available to participants of data that are important for the assessment of the financial capacity of the consumer'. The CKI is such a credit registration and Achmea and ABN AMRO, as participants in the CKI, are bound by the General Regulations laid down by the CKI. The registration is carried out by the BKR on the basis of the information provided by the participants. 3.6 Pursuant to Section 4:34 of the Wft, providers of credit have an obligation to obtain information and, on the basis of that information, to assess whether the granting of credit is irresponsible for the consumer in connection with the risk of excessive lending. In certain cases, that obligation will result in the database of a credit registration system having to be consulted prior to the conclusion of a credit agreement. Section 4:34(2) of the Wft expressly states that no credit may be granted if this is irresponsible with a view to preventing the consumer's over-indebtedness. In doing so, the provider of credit shall base himself on the information collected on the basis of the provisions under and pursuant to the first paragraph. This shall include consultation of credit registration data. Further rules can be found in the Decree on Conduct Supervision of Financial Undertakings (Wft BGfo). For example, pursuant to Section 114 of the FMSA, the lender is obliged to consult the BKR in the case of loans of more than € 250. 3.7 The purpose of credit registration is, on the one hand, to protect consumers against excessive lending and other financial problems and, on the other hand, to protect credit providers against borrowers who have been found to be unable to repay their loans. Late payments or other irregularities arising during the term of a credit agreement are recorded in the CKI with special codes. To this end, the General Regulations require a participant to report to the BKR (among other things) any arrears that have arisen, after which the consumer concerned receives an A-coding in the CKI and the fact that an amount of € 250 or more has been debited (special code 3). In principle, the registrations of the arrears and special codes remain visible on the overviews provided by the BKR for a period of five years after a report has been made to the BKR. 3.8 Participating in a credit registration system necessarily involves the processing of personal data. Pursuant to Article 16(1) of the Treaty on the Functioning of the European Union (TFEU), everyone has the right to the protection of their personal data. The AVG complies with the mandate to establish rules for the protection of individuals with regard to the processing of personal data given in Article 16(2) of the TFEU. 3.9 The registration of data in the CKI of the BKR can be regarded as the processing of personal data within the meaning of Article 4 opening words and under 2 GCG. Achmea and ABN AMRO are deemed to be responsible for processing within the meaning of the opening words of Article 4 and under 7 of the AVG, since the data has been provided by them as participants in the credit registration. 3.10 Pursuant to Article 5 AVG, personal data may only be collected for specific, explicitly defined and justified purposes. Justified purposes may only be those pursued by data processing in one of the grounds listed exhaustively in Article 6(1) of the AVG. The said Article 6(1) is, in so far as it is currently relevant: The processing is lawful only if and in so far as at least one of the following conditions is met: a. the data subject has given permission for the processing of his/her personal data for one or more specific purposes; b. (…) c. the processing is necessary to comply with a legal obligation incumbent on the controller; d. (…) e. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; f. processing is necessary for the purposes of pursuing the legitimate interests of the controller or of a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data, in particular where the data subject is a child. 3.11 It follows from the Supreme Court decision of 9 September 2011 (NJ 2011, 595, Santander), which can be deemed not to have lost its validity under the AVG, that the processing of personal data always requires a balancing of interests, regardless of the ground on which the processing takes place. This means that the processing of data must comply with the principles of proportionality and subsidiarity. The principle of proportionality means that the interference with the interests of the data subject in the processing of personal data must not be disproportionate to the purposes of the processing. In accordance with the principle of subsidiarity, the purpose for which the personal data are communicated should not reasonably be achieved by other means which are less harmful to the data subject when processing personal data. However, even if data processing is in principle allowed on one of the grounds mentioned in Article 6(1) of the AVG, the requirement remains that the processing must be necessary in the specific case in view of the stated purpose of the processing. The presence of a legal justification therefore did not make a balancing of interests superfluous. The circumstances of the case must be taken into account in this balancing exercise. 3.12 However, even if a balancing of interests has been carried out when processing data, the data subject may still object to such processing for reasons relating to his or her specific situation. In that case, a new weighing of interests will be carried out in relation to his or her particular personal circumstances. However, this right of objection, as laid down in Article 21 paragraph 1 of the AVG, only applies if the processing has taken place on the basis of Article 6 paragraph 1 under e or f. If this objection is upheld, this will result in the removal of the personal data on the grounds of Article 17, paragraph 1 (c) of the AVG. Removal of the personal data can also be requested in one of the other cases referred to in Article 17 clause 1 AVG. These other cases are not limited to certain bases, so that they also apply to the categories other than those of e and f of Article 6 clause 1 AVG. 3.13 Article 17 of the AVG reads as far as currently relevant: 1. The data subject has the right to obtain from the data controller the erasure of personal data relating to him or her without unreasonable delay and the data controller is obliged to erase personal data without unreasonable delay where one of the following applies: a. the personal data are no longer necessary for the purposes for which they were collected or otherwise processed: b. the data subject withdraws the consent on which the processing (...) is based, and there is no other legal basis for processing; c. the data subject objects to the processing pursuant to Article 21 paragraph 1, and there are no overriding compelling legitimate grounds for processing, or the data subject objects to the processing pursuant to Article 21 paragraph 2; d. the personal data have been unlawfully processed; e. (…) f. (…) 2. (…) 3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: a. (…) b. for compliance with a legal obligation under Union or Member State law to process which is incumbent on the controller, or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; c. (…) d. (…) e. (…) 3.14 It is not a matter of dispute that the data provided and registered by Achmea and ABN AMRO are correct and have been processed lawfully. Nor is it disputed that Achmea and ABN AMRO were right to have the special codes registered. The question is whether Achmea and ABN AMRO should have removed these data at the request of [the applicant]. In doing so, [applicant] in particular invokes article 21 paragraph 1 of the AVG and the test referred to therein, which according to him should take place, whereby the obligation to establish and the burden of proof rests on Achmea and ABN AMRO. Article 21 paragraph 1 AVG reads: The data subject has the right to object at any time to the processing of personal data relating to him/her on the basis of Article 6, paragraph 1, under e or f, including profiling on the basis of those provisions, for reasons relating to his/her specific situation. The controller shall cease processing of the personal data unless he or she establishes compelling legitimate grounds for processing which override the interests, rights and freedoms of the data subject or which are related to the institution, exercise or justification of legal proceedings. 3.15 In the assessment of [the applicant]'s reliance on article 21 paragraph 1 AVG, it is important to note that Achmea and ABN AMRO's defence that the processing of the personal data took place on the basis of article 6 paragraph 1 opening words and under c AVG, so that article 21 paragraph 1 AVG is not applicable. 3.16 The court is of the opinion with Achmea and ABN AMRO that the processing of personal data in the CKI is based on a legal obligation as referred to in article 6 paragraph 1 under c AVG. After all, the processing of the personal data results from an obligation on the part of Achmea and ABN AMRO as credit providers to participate in a system of credit registration, which necessarily entails the processing of personal data. However, the task of carrying out a statutory obligation does not justify every data processing. The data controller may not process more or other data than is necessary to fulfil the statutory obligation. In this context, it is important that credit registration enables credit providers to comply with their statutory obligation to obtain information and, on the basis of that information, to assess whether the granting of credit is irresponsible for the consumer in connection with the risk of excessive lending, as referred to in Section 4:34 of the Wft. Articles 4:32 and 4:34 Wft have a basis in Union law in Directive 2008/48/EC on credit agreements for consumers. In order to be able to comply with this obligation, it is necessary not only for the credit to be registered, but also for the way in which the obligations arising from the credit agreement are or have been fulfilled. This means that the registration of the special ratings as referred to in the General Regulation and currently under discussion here too, the so-called negative BKR registration, is also necessary for the implementation of the statutory obligation. This registration is therefore also covered by Article 6, paragraph 1 (c) of the AVG. This means that [the applicant] cannot invoke Article 21 paragraph 1 AVG. 3.17 The fact that the processing of the personal data has taken place on the basis of a statutory obligation also means that Article 17 clause 3 AVG applies in this case, so that no removal of the personal data can be requested on one of the grounds mentioned in the first clause of Article 17 AVG. 3.18 The fact that Article 17 paragraph 1 of the AVG does not apply in the present case does not alter the fact that a balancing of interests may result in data still having to be deleted. After all, the principles of proportionality and subsidiarity must be complied with not only in the case of the registration of personal data, but also in the case of their retention in the event of subsequent changes in circumstances. 3.19 In the context of the aforementioned balancing of interests, it should be assessed whether the invasion of [applicant's] privacy is not disproportionate in relation to the purpose to be served by the registration. In doing so, the circumstances of the specific case must be taken into account, as they are known at the time of the balancing of interests. 3.20 In support of his application for removal of the negative BKR registrations, [the applicant] argues that he has not incurred any new debts since 2013 and that his financial situation is in good order. As a result of the debt assistance process, he has learned to control his expenses properly and to keep proper records. In this regard, he refers to the (draft) annual accounts 2018 of his company submitted as production. In addition, he has been able to make considerable savings and currently has a savings balance of almost € 40,000. Now that he has been able to leave all his problematic debts behind, he wants to make a new start with his family. Since April 2018 he has his own business that runs very well. He has received a large order with which he has a monthly income of an average of € 10.000,=. His company is currently growing to such an extent that he is forced to expand his business. As an entrepreneur, he needs to arrange various financial matters for which he needs a business loan. Because of the negative BKR registrations he is not granted a business credit. In addition, he is on the road a lot for his work, which makes it necessary for him to have his own transport. He intends to lease a car via financial lease, which is not possible due to the negative BKR registrations. The [applicant] currently leases a car via a short lease, the costs of which are considerably higher than a financial lease. In addition, he intends to take out a mortgage loan, which is not possible at present. In the two-room apartment that he has been renting since August 2011, he does not have enough space for himself and his three daughters who stay with him every other weekend. Given the level of his income, he does not qualify for a larger, social rental home and a rental home in the free sector is unreasonably expensive. Only the negative BKR registrations hinder him to obtain a mortgage loan. 3.21 The District Court is of the opinion that, in view of [the applicant's] plans, there is still every reason to protect him against incurring new debts. At the time, [the applicant] entered the statutory debt rescheduling scheme on account of his problematic debt situation that had existed for many years. The clean bill of lading was only granted three years ago. Although [the applicant] submits that he has not incurred any new debts since 2013, the failure to incur new debts is one of the obligations to which he was bound by virtue of the debt rescheduling. That debt rescheduling scheme was terminated in March 2016 with the granting of a clean slate. At the hearing, he was unable to provide information about the amount he had saved in that three-year period and the percentage paid out to his creditors. It is therefore not clear to what extent he was able to repay his debts in that three-year period. The intention is that debtors will remain debt free after the termination of the debt rescheduling arrangement. If they regain their debts, the statutory debt rescheduling scheme can no longer be invoked in the period up to 10 years after the termination of the scheme. There is therefore every reason for [the applicant] to exercise due care when entering into debt and to protect him against this. There is also reason to protect credit providers from [the applicant], if, in view of his problematic debt background, he wants to take on new debts too lightly. 3.22 It is important to note that [the applicant] quit his permanent job shortly after the clean bill of health had been issued and took up employment through secondment agencies. Since January 2018 he has been working as an independent entrepreneur. The documents submitted by [the applicant] show that although he had an income of around € 10,000 per month, this was for a fixed-term assignment. Subsequently, he entered into a contract that also applies for a definite period. There is therefore no question (yet) of a stable income. The court understands that [the applicant] has his office at home, which keeps the costs low. [the applicant] has not substantiated the need to expand his business in any way. The fact that a business loan is required for this purpose has not been substantiated in any way. If [the applicant] already needs a car for his work, which has not been demonstrated either, it is not clear why he cannot finance it himself, in view of the amount he claims to have saved, so that the need to finance a car by means of a financial lease has not been substantiated either. As far as the mortgage loan is concerned, the need has not been demonstrated. Apart from the fact that [the applicant] does not live in a two-room apartment, as he claims, but in a three-room apartment, the mere fact that he may have little space is not sufficient reason to buy a house. Has insufficiently demonstrated that he is unable to rent a larger dwelling. 3.23 In view of the above, the District Court is of the opinion that there is every reason to maintain the negative BKR registration, since the invasion of the privacy of [the applicant] is not disproportionate in relation to the purpose to be served by the registration. Article 10 of the Constitution 3.24 [applicant] also invokes Article 10 of the Constitution. Pursuant to this provision, everyone has the right to respect for his privacy, subject to restrictions to be imposed by or pursuant to the law. The former Personal Data Protection Act (Wpb), which was intended to implement Directive no. 95/46/EC of the European Parliament and of the Council of 25 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, also gave effect to the instruction given in paragraphs 2 and 3 of Article 10 of the Constitution to lay down further rules for the protection of individuals with regard to the processing of personal data. The aforementioned Directive and the Wpb have been replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, the AVG. 3.25 As envisaged in paragraph 3.8, the AVG complies with the mandate set out in Article 16(2) TFEU to lay down rules on the protection of individuals with regard to the processing of personal data. Pursuant to Article 16(1) TFEU, everyone has the right to the protection of personal data concerning him or her. 3.26 Personal data is also protected as part of privacy within the meaning of Article 10 of the Constitution. Based on established case law of the European Court of Justice, EU law is considered to be a legal order of its own. Provisions of EU law have a direct effect in the Dutch legal order and take precedence over national law, including the Constitution. Existing national law, including the Constitution, must be interpreted in accordance with Union law. In view of this, it is not clear to the District Court what [the applicant] intends to do with reliance on Article 10 of the Constitution as an independent basis for the application. There is no explanation, so that the court will not discuss this basis any further. Articles 7 and 8 of the Charter 3.27 Article 7 of the Charter enshrines the right to respect for private life. It follows from Article 52(3) of the Charter that this right has the same scope and limits as Article 8 ECHR. Article 8 of the Charter lays down everyone's right to the protection of personal data. On the basis of the second paragraph, such data must be processed fairly for specified purposes and with the data subject's consent or on any other legitimate basis provided by law. Everyone has the right of access to data which has been collected concerning him or her and the right to have it rectified. On the basis of the third paragraph, an independent authority shall monitor compliance with these rules. On the basis of Article 51 of the Charter, the provisions of the Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States when they are implementing Union law. The Charter therefore applies when implementing the Regulation. In the absence of any explanation, it is not clear to the court why [the applicant] invokes this Charter as the basis of his application and to what extent, in his view, that invoking it should lead. Therefore, the court will not further discuss this basis. Article 8 ECHR 3.28 Finally, [the applicant] invokes Article 8 of the ECHR. This includes the constitutional right to the protection of private life. If private life is violated, these must be provided for by law pursuant to the second paragraph of Article 8 ECHR and must be necessary on a number of specified grounds. In the application of these restrictions on private life, in addition to necessity, proportionality and the principle of subsidiarity also play an important role. The AVG is such a statutory regulation as referred to in Article 8(2) ECHR, which includes a restriction on private life. The provisions in the AVG must be interpreted in the light of Article 8 ECHR. Partly in connection with this, the weighing up of interests has also taken place as set out above. This balancing of interests leads to the conclusion that the application will be rejected. A reliance on Article 8 ECHR as an independent basis for the application can therefore not succeed. Legal costs 3.29 As the unsuccessful party, [the applicant] shall be ordered to pay the costs of the proceedings of ABN AMRO and Achmea. The costs on the part of ABN AMRO and Achmea are estimated per defendant: - court fee paid € 639.00 - lawyer's salary € 1,086.00 (2.0 points × II rate € 543.00) Total € 1.725,00. 4 The court rejects the request,orders [the applicant] to pay the costs of the proceedings, on the part of ABN AMRO, estimated to date at € 1,725.00, orders [the applicant] to pay the costs of the proceedings, in respect of Achmea's cases and to date estimated at € 1,725, declares the order for costs enforceable on a provisional basis. This order was issued by Mr Hermans and pronounced in public on 21 October 2019.1
