Rb. Amsterdam - C/13/696660/HA RK - 21-37
| Rb. Amsterdam - C/13/696660/HA RK -21-37 | |
|---|---|
 | |
| Court: | Rb. Amsterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 79(2) GDPR |
| Decided: | 15.07.2021 |
| Published: | 18.08.2021 |
| Parties: | Microsoft Ireland Operations Limited |
| National Case Number/Name: | C/13/696660/HA RK -21-37 |
| European Case Law Identifier: | ECLI:NL:RBAMS:2021:3670 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | n/a |
The District Court of Amsterdam held that it lacked jurisdiction in a case concerning the removal of URL's from Amazon's search engine, as the claimant had not sufficiently demonstrated that his 'centre of interests' was in the Netherlands. The fact that the claimant is director and sole shareholder of a company established in the Netherlands was insufficient.
English Summary
Facts
The claimant requested Microsoft Ireland to remove a number of URLs (links) from a list of search engine results following a search by the claimant's name in Microsoft's search engine, Bing. The claimant based his request on Articles 17(1)(a) and (c) GDPR and Articles 10 and 21 GDPR.
Holding
The Court first examined its competence to rule on the request. The request is of an international nature as the applicant is domiciled in the UK and Microsoft is domiciled in Ireland. It noted that the dispute falls within the scope of the Brussels I bis Regulation in substantive, formal and temporal terms. Recital 147 GDPR states that the general rules of jurisdiction of the Brussels I bis Regulation should not prejudice the application of the specific rules of jurisdiction contained in the GDPR. This means that in a situation where both the Brussels I bis Regulation and the AVG are applicable, the Brussels I bis Regulation cannot take away the competence designated by the GDPR.
The Court referred to the case law of the CJEU (see CJEU 25 November 2011, ECLI:EU:C:2011:685, eDate Advertising GMBH/Martinez), from which it follows that Article 7(2) Brussels I bis Regulation, in the event of an alleged infringement of personal rights by content placed on the internet, must be interpreted as meaning that the victim may also lodge the claim with the court where he has his 'centre of interests'.
The CJEU defines the centre of interests as follows: "That place is usually the victim's habitual residence, but it may also be a Member State in which the victim does not habitually reside, provided that other evidence, such as the pursuit of a professional activity, may show that there is a particularly close connection with that State."
Whilst the claimant considered that he has the centre of interests in the Netherlands since he conducts his professional activities in the Netherlands and he maintains an office in the Netherlands, the Court found this explanation insufficient. It cannot be inferred from the mere fact that a person "also keeps an office" in a certain place that he thereby exercises his professional activities there.
The claimant had highlighted that he is the sole shareholder and director of an investment company with activities in the Netherlands and that he is currently looking for houses in the Netherlands to add to the company's portfolio. However, the Court considered that, since these are not the claimant's only professional activities, and that he also has activities outside of the Netherlands where he is domiciled in the UK, the claimant's situation does not satisfy the 'centre of interests' test.
The Court applied its reasoning regarding the complainant's 'centre of interests' to its review of Article 79 (2) GDPR, which states that proceedings may be brought before the courts of the Member State where the data subject has their 'habitual residence'.
Consequently, the Court concluded that it lacked jurisdiction to hear the application.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
Body
Court of Amsterdam
Date of judgment
15-07-2021
Date of publication
18-08-2021
Case number
C/13/696660 / HA RK 21-37
Jurisdictions
Civil rights
European civil law
Special characteristics
First instance - single
Order
Content indication
Request for removal of (URLs to) personal data from search engine results; jurisdiction (jurisdiction); place of harmful event art. 7 ahf sub 2 Brussels I-bis; center of interests.
Locations
Rechtspraak.nl
Enhanced pronunciation
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Pronunciation
order
COURT OF AMSTERDAM
Private Law Department
case number / claim number: C/13/696660 / HA RK 21-37
Order of 15 July 2021
in the case of
[applicant]
,
residing in [residence] (United Kingdom),
applicant,
authorized representative W.C.E. baron Van Lynden in Amsterdam,
and
the legal person under foreign law
MICROSOFT IRELAND OPERATIONS LIMITED,
established in Dublin (Ireland), defendant ,
not appeared.
The parties are hereinafter referred to as the applicant and Microsoft.
1 The procedure
1.1.
The course of the procedure is apparent from:
-
the application with annexes, received at the registry on January 22, 2021,
-
the English translation of the application, received at the registry on March 5, 2021,
-
the letter from the court registry to Microsoft dated March 16, 2021, in English, asking whether Microsoft wishes to be heard on the request,
-
information from DHL regarding the aforementioned letter by reference to the consignment number assigned to it, implying that the letter was delivered on March 18, 2021,
-
the e-mail message from the court to the applicant's representative dated April 21, 2021, with the request to further explain the alleged jurisdiction of the Dutch court, and the response from the representative of April 30, 2021,
-
the e-mail message from the court to the applicant's representative dated 10 June 2021, with a subsequent request for further explanation regarding the jurisdiction of the Dutch court, and the response to this from the representative dated 25 June 2021.
1.2.
The decision date has been set today.
2 The request
2.1.
The petition seeks to remove six URLs (hereinafter: the links) from the list of search results after a search by name of the applicant in Microsoft's search engine, called Bing.
2.2.
The applicant bases his request in the first place on the right to be forgotten, Article 17 paragraph 1 under a and under c of the General Data Protection Regulation (GDPR), with reference to the judgment of the Court of Justice of the European Union (CJEU) of 13 May 2014 in the Costeja case (C131/12, ECLI:EU:C:2014:317). He also bases his request on Articles 10 and 21 of the GDPR.
2.3.
To this end, the applicant submits the following. The data in the links concerns criminal personal data. Processing of this data is in principle prohibited, subject to a few exceptions. Microsoft cannot rely on these exceptions. Thus, the requirement of strict necessity is not met. Also, the information in the links cannot be regarded as a reflection of the current situation.
In addition, there is no public interest, let alone a compelling public interest that can justify the invasion of privacy. The information in the links has no professional relevance and lacks any protective effect. The privacy interest of the applicant himself and of his minor son, on the other hand, is extremely great.
Finally, Microsoft is acting inconsistently. Previous similar requests were granted, according to the applicant.
3 The assessment
3.1.
Before arriving at the substantive assessment of the request, the court must assess ex officio whether it is competent to take cognizance of the request. The request has an international character, because the applicant is domiciled in the United Kingdom and Microsoft is established in Ireland. The dispute falls within the scope of the Brussels Ia Regulation1 in substance, formally and temporally: it concerns a civil and commercial case that was brought after 10 January 2015 against a defendant domiciled in the European Union. This means that the jurisdiction of the Dutch court must be assessed on the basis of the provisions of this regulation. These provisions must be interpreted uniformly on the basis of the case law of the CJEU on this regulation and its predecessors.
3.2.
Article 4 of the Brussels Ia Regulation provides (as a general rule) that, without prejudice to this Regulation, persons domiciled in the territory of a Member State, irrespective of their nationality, shall be sued in the courts of that Member State. In view of this main rule, Microsoft must in principle be sued in the Irish courts. It follows from Article 5 of the Brussels Ia Regulation that derogation from this main rule is only possible on the basis of the rules laid down in Sections 2 to 7 (Articles 7 to 26) of Chapter II of the Brussels Ia Regulation.
3.3.
With regard to obligations arising from tort, delict or quasi-delict, in addition to the court of the defendant's domicile, the court of the place where the harmful event occurred (Article 7 preamble and under point 2 of the Brussels I bis Regulation) also has jurisdiction. It is settled case law of the CJEU that this includes both the place where the event that caused the damage occurred ('Handlungsort') and the place where the damage occurred ('Erfolgsort').
3.4.
The concept of tort must be interpreted autonomously. This case concerns a request aimed at getting Microsoft to remove links to personal data posted on the Internet for an infringement of the right to privacy and violation of the GDPR. The request is based on unlawful processing of personal data. An infringement of the GDPR qualifies as an obligation in tort within the meaning of the above under 3.3. mentioned article.
3.5.
The question is whether in this case the place where the harmful event occurred is located in the district of Amsterdam, at least in the Netherlands.
3.6.
It follows from case law of the CJEU (see CJEU 25 November 2011, ECLI:EU:C:2011:685, eDate Advertising GMBH/Martinez) that Article 7, point 2 of the Brussels I bis Regulation in the event of an alleged violation of personality rights by Content posted on the internet must be interpreted in such a way that the victim can also file the claim with the court where he has the center of his interests. What should be understood by this concept has been explained by the CJEU as follows: “That place is usually the habitual residence of the victim, but it can also be a Member State where the victim does not normally reside, insofar as other indications, such as the pursuit of a professional activity, it may be apparent that there is a particularly close connection with that State.”
3.7.
The applicant has argued that he has the center of his interests in the Netherlands. To this end, he argued, among other things, that he: “executes his professional activities in the Netherlands, after all, he also has an office in Rotterdam”. In this regard, the applicant apparently refers to [name of NV] N.V., which is stated in the preamble of the application. This explanation is insufficient. After all, it cannot be deduced from the mere fact that a person “also has an office” in a certain place that he thus carries out his professional activities as such in the Netherlands. The court therefore asked the applicant for further explanation.
3.8.
The applicant subsequently explained that he is the sole shareholder and director of the company, that it is an investment firm, that the applicant is currently looking for homes in the Netherlands for the portfolio of this company, and that its activities are carried out in the Netherlands. The Applicant also explained that these are not the Applicant's only professional activities. In addition to the above and his activities with [name bv] B.V., his activities take place. in the Netherlands also in [place of residence]. In [name bv] B.V., also established in Rotterdam, the applicant has a 100% interest. His father is the director here. The applicant has explained that this company has a real estate portfolio with objects in the Netherlands and that the applicant is actively involved in the activities of this company in the Netherlands.
3.9.
That explanation is also not sufficient. It may be deduced from this that the applicant is actively involved on a regular basis in the activities of two companies established in the Netherlands, and thus that the applicant carries out professional activities in the Netherlands. At the same time, however, it appears that these are not the applicant's only professional activities, but that his activities are also in [residence] - and therefore abroad -
play. However, the applicant has not explained the latter activities in any further detail, so that it remains unclear what activities are involved and, for example, what time and income are involved. As a result, the applicant's two professional activities cannot be compared, so that it is also impossible to determine where the center of gravity of his professional activities as a whole, and thus the place where the applicant has the center of his interests, should be situated. On the basis of that explanation that the applicant has provided, it cannot be concluded that that place is located in the Netherlands.
3.10.
That any of the other special jurisdiction rules of the Brussels Ia Regulation are applicable in this case has not been stated nor has it been proven.
3.11.
The GDPR also has a jurisdiction regulation. Article 79(2) of the GDPR provides that proceedings against a controller or processor may be brought before the courts of the Member State where the controller or processor has an establishment, or in the Member State where the data subject has his or her habitual residence. Pursuant to Article 67 of the Brussels Ia Regulation, that regulation is without prejudice to the provisions of EU law governing jurisdiction in particular matters, such as the GDPR in this case. The preamble under 147 to the GDPR states that the general jurisdiction rules of the Brussels Ia Regulation should not prejudice the application of the specific jurisdiction rules contained in the GDPR. This means that in a situation where both the Brussels Ia Regulation and the GDPR apply, the Brussels Ia Regulation cannot deprive a power designated by the GDPR.
3.12.
However, the jurisdiction regulation from Article 79, paragraph 2 of the GDPR is of no avail to the applicant. Microsoft is the controller with regard to the processing of the applicant's personal data. It is based in Ireland. It has already been established above that the applicant does not have his habitual residence or center of interests in the Netherlands. As a result, Article 79 paragraph 2 of the GDPR does not create jurisdiction for the Dutch court.
3.13.
Finally, the Applicant also invoked the general rules of jurisdiction as included in the Code of Civil Procedure (Rv), more in particular Article 3 under a Rv. Pursuant to that article, the Dutch court has jurisdiction in cases initiated by means of an application if – in short – the applicant is domiciled in the Netherlands. In this regard, the applicant, who is domiciled in [residence] , has pointed out that he has expressly chosen domicile at the office of his agent in Amsterdam. Such a choice of residence cannot, however, be equated with the concept of residence as referred to in Article 3 DCCP.
3.14.
The foregoing means that the Dutch court has no jurisdiction in this case. The court will therefore decide accordingly.
4. The decision
The court
4.1.
declares that the Dutch court has no jurisdiction to take cognizance of the request.
This decision was given by mr. M.C.H. Broesterhuizen, assisted by mr. P.C.N. van Gelderen, Registrar, and pronounced in public on 15 July 2021.
The Registrar is unable to sign this order.
1
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJEU 2012, L 351/1 (hereinafter: Brussels Ia Regulation).
