GHDHA - 200.291.947/01
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| GHDHA - 200.291.947/01 | |
|---|---|
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| Court: | GHDHA (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(f) GDPR Article 17 GDPR Article 21 GDPR art. 35 (2) UAVG |
| Decided: | 05.10.2021 |
| Published: | 03.11.2021 |
| Parties: | Aegon and unknown |
| National Case Number/Name: | 200.291.947/01 |
| European Case Law Identifier: | ECLI:NL:GHDHA:2021:1924 |
| Appeal from: | Rb. Den Haag (Netherlands) C/09/595546 / HA RK 20-314 |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | n/a |
The Court of Appeal of the Hague decided, after conducting a balancing test pursuant to Article 21(1) GDPR, that a data subject's individual interest in being removed from the Credit Information System did not outweigh the defendant's legitimate interest to register their creditworthiness.
English Summary
Facts
The claimant requested the defendant to remove certain special codes, that link to their creditworthiness, from the Central Credit Information System (CKI) of the Bureau for Credit Registration. The registration of these special codes had resulted from the claimant's inability to repay their mortgage debt to the defendant. The registration was dated September 2018 and remained in effect for a period of five years. Hence, the claimant would not be removed from the BKI until September 2023. Since the registration had the effect of preventing the claimant from taking out a new loan, the claimant requested the defendant to remove their personal data from the CKI.
However, the claimant made some procedural mistakes. They first requested their personal data to be removed on 22 August 2019. The defendant rejected to this request on 10 September 2019. Afterwards, the claimant lodged an appeal to this decision, but erroneously brought the defendant's sister company to Court. The claimant submitted their second request for deletion, which was identical to the first one, on 28 April 2020. After the defendant rejected the request again, the claimant submitted appeal to the decision. However, this time, they brought the right party to Court.
In the first instance, the claimant demanded the removal of the registration accompanied by a daily penalty payment. The Court ordered the defendant to remove the registration on 1 January 2023 instead of September 2023. However the demanded penalty payment was rejected. The applicant did not agree with the ruling and brought the case for appeal.
The claimant put forward three grounds of appeal against the contested decision. First of all, the claimant points to the wrongful absence of relevant facts. Secondly, the claimant argued that the Court should have first assessed whether the registration was still necessary before weighing up the interests. Finally, the claimant challenges the Court's finding that the registration should not be removed until 1 January 2023.
The defendant, in turn, put forward four grounds for appeal. Firstly, it also concerns the establishment of facts and, secondly, the admissibility of the application. Thirdly, the defendant complains that the Court wrongly gave weight to the time lapse factor in the weighing of interests. Finally, the defendant argues that there is no ground for removal on 1 January 2023.
Holding
The Court of Appeal of The Hague tested two elements in its judgment, namely the admissibility of the application and whether the request for removal of the registration should be granted.
With regard to the admissibility of the claimant's application of 28 April 2020, the Court of Appeal considered Article 35(2) of the Implementing Act of the GDPR (UAVG), which follows from the right to object, Article 21 GDPR. Article 35(2) UAVG stipulates that the appeal must be submitted to Court within six weeks after receipt of the response from the data controller. Defendant claimed that claimant exceeded the (initial) deadline. First, they claimed that claimant did not submit any new facts and circumstances in his request of 28 April 2020. Second, they stated that claimant could circumvent Article 35(2) UAVG at any moment by submitting a new deletion request.
The Court, however, considered that the appeal was admissible. First, they considered that it was clear that claimant made a procedural mistake by addressing the first application to the wrong party, and that the new request dated 28 April 2020 is motivated by the wish to rectify this mistake by still obtaining judicial review. Hence, the Court noted that a reasonable interpretation of Article 35(2) UAVG implies that claimant could still appeal to the rejection of 26 May 2020. Furthermore, respondent, in its response of 26 May 2020 to the second deletion request of 28 April 2020, assessed the content of the request again, and did not emphasis that it would no longer consider the request since this request was identical to the first one. Therefore, the Court concluded that claimant's right to object pursuant to Article 21 GDPR, weighs more than defendant's interest in legal certainty that after six weeks it no longer had to expect that it would be involved in legal proceedings.
Regarding the deletion request, the Court examined Article 6(1)(f), Article 17, and Article 21 GDPR. The second sentence of Article 21(1) stipulates that the controller (the defendant) shall no longer personal data unless it has compelling legitimate grounds for the processing which override the interests or the fundamental rights and freedoms of the data subject. Hence, the Court assessed whether the infringement of the data subject's interests is not disproportionate in relation to the purpose that is served by the processing (proportionality test) and whether that purpose cannot reasonably be achieved in a different manner that is less detrimental to the data subject (subsidiarity test).
Pursuant to Article 4:32 of the Financial Supervision Act, credit providers are obliged to participate in a credit registration system. The purpose of credit registration is to promote socially responsible financial services, as (also) follows from the General Regulations of the CKI (CKI-regulations). On the one hand, it is in the interest of consumers to protect them excessive lending and other financial problems (i.e., problematic debt situations). On the other hand, it is in the interest of credit providers to limit financial risks when granting credit and to prevent, and combat abuse and fraud. The credit registration system serves these interests, for example by informing credit providers about relevant details that have occurred in the (recent) past. To this end a credit provider is obliged (pursuant to the CKI-regulations) to register certain payment arrears and other irregularities in the CKI. Hence, in principle, such a special codes (that link to bad creditworthiness) remain in place for up to five years after the arrears have been repaid or the credit agreement has been terminated.
The Court acknowledged defendant's arguments that stated that claimant was late with payments for a long period, defendant was left with a large residual debt which it had to write of to a large extend, and claimant had not done everything in his power to pay his debts. Considering the fact that claimant also had other debts (that were largely written off), the Court considered that this indicated a risk of excessive lending. This legitimated the importance of registration in the CKI, so that other lenders can assess their credit risks. The claimant was not able to sufficiently demonstrate that its interests outweighed above-mentioned interest. Hence, the Court concluded that the defendant's interest in maintaining the registration outweighed the claimant's interest in having his personal data removed. The request for removal was therefore dismissed.
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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.
COURT OF JUSTICE THE HAGUE
Civil Law Division
Case number : 200.291.947/01
Case number of the court : C/09/595546 / HA RK 20-314
Order of 5 October 2021 (in case of adjournment)
concerning
1. [applicant],
2. [applicant],
residing in [place of residence],
applicants on appeal
Defendants in the alternative appeal,
hereinafter referred to collectively as: [applicant] c.s. (male singular),
Lawyer: K.J. Zomer in Oosterhout,
against:
Aegon Hypotheken B.V.,
established in The Hague,
Defendant in appeal,
applicant in appeal,
hereinafter referred to as: Aegon,
Lawyer: G.A. van Essen, The Hague,
What the case is about
This case concerns the question of whether Aegon should grant the request of [applicant] et al. to remove, or have removed, the exceptional codes it registered in the Central Credit Information System (CKI) of the Dutch Central Credit Registration Office (hereinafter: the BKR) in the name of [applicant] et al.
Course of the proceedings on appeal
1.1
By notice of appeal dated 12 March 2021, [applicant] et al. appealed against a decision of the District Court of The Hague dated 16 December 2020 rendered between the parties. In the notice of appeal with productions, [applicant] c.s. put forward three grounds for appeal against this order.
1.2
In the statement of defence on appeal, Aegon contested the grievances and also submitted an incidental appeal, containing four grounds for appeal. The [applicant] c.s. responded to the grounds for appeal in the incidental appeal by statement of defence in the incidental appeal.
1.3
On 7 September 2021, the oral hearing took place, during which the parties had their case explained; [applicant] c.s. by Mr. Zomer mentioned above, and Aegon by Mr. van Essen mentioned above. Both parties made use of notes on their speeches which they submitted. The hearing took place by video link. A report of the hearing was drawn up and sent to the parties.
1.4
At the end of the oral proceedings judgment was given.
The facts
2. The court of appeal departs from the facts set out below, because there is no difference of opinion between the parties about these facts. The court of appeal has taken into account the remarks made by [applicant] et al. (in ground 1) and Aegon (in ground 1 of appeal) with respect to the establishment of facts by the court, in so far as these have not been contested by Aegon and [applicant] et al. respectively. It should be noted that it is up to the court of appeal to select from the facts established between the parties those facts that it considers relevant for the assessment of the dispute.
2.1
The [applicant] was employed as general manager from 1999 to 2013. His gross annual income at the time was approximately €300,000.
2.2
In 2011, Aegon granted [applicant] et al. a mortgage loan of € 1,093,750 for the purpose of purchasing a home.
2.3
In August 2013, [applicant]'s employment was terminated and he fell back on unemployment benefit. After this, [applicant] did not manage to find a new job.
2.4
On 12 February 2015, the financial adviser of [applicant] et al. informed Aegon that [applicant]'s employment had been terminated and that he would like to enter into discussions with Aegon in order to avoid any payment arrears.
2.5
From mid-2015 arrears in payment obligations to Aegon arose.
2.6
In 2016, [applicant] et al. turned to municipal debt assistance.
2.7
As of 2016, [applicant] c.s. was dependent on an IOAW benefit. As a result, his monthly income declined even further.
2.8
In January 2018, the home of [applicant] c.s. was sold for a purchase price of
€ 650.000,-. At the sale the savings deposit of [applicant] c.s. was also liquidated. Thereby
An amount of € 340,867.48 was generated. These proceeds were used to pay off
The proceeds were used to pay off the mortgage debt to Aegon.
2.9
The residual debt of [applicant] et al. to Aegon amounted to € 251,196.63 on 12 June 2018.
2.10
In 2018, in connection with payment arrears on loans granted, Rabobank caused [applicant] c.s. to be registered in the BKR's CKI with the codes A, 2 and 3. The codings will in principle be removed in September 2023.
2.11
Aegon caused [Applicant] c.s. to be registered in the BKR's CKI as follows as a result of the arrears that arose:
Name:
Date of registration:
Coding:
End date of registration:
[applicant]
August 3, 2015
A
May 2023
September 18, 2018
3
September 2023
[applicant]
August 3, 2015
A
May 2023
September 18, 2018
3
September 2023
The codings indicate that first a backlog of receivables arose (coding A) and finally an amount of € 250 or more was written off on the receivable (coding 3).
2.12
On 7 May 2018, [applicant] et al. entered into a rental agreement in respect of
a dwelling in the amount of € 700.- per month, effective as of June 9, 2018. The rental agreement has a term of five years and will end by operation of law on June 8, 2023.
2.13
On 18 June 2018, the debt counsellor of [applicant] c.s. offered Aegon to participate in a debt settlement with [applicant] c.s., pursuant to which
[applicant] c.s. would pay €22,787.25 in final discharge. Aegon rejected this proposal.
Aegon rejected this proposal.
2.14
By judgment of 18 September 2018, Aegon was ordered to agree to the
debt settlement that [applicant] et al. had offered it. As a result, Aegon was forced to write off the residual claim it had against [applicant] et al.
2.15
With effect from 1 January 2019, [applicant] c.s. took early retirement.
His monthly income amounts to at least € 4,100 net.
2.16
On 22 August 2019, [applicant] c.s., assisted by Coderingfree - a company
which specializes in assisting consumers with requests for removal of BKR registrations - requested Aegon to remove the BKR registrations.
2.17
Aegon denied this request by letter dated September 10, 2019.
2.18
In October 2019, [applicant] et al. engaged Aegon Levensverzekering N.V. in
a petition proceeding brought by him before the District Court of North
Netherlands with the aim of removing BKR registrations. Aegon Levensverzekering
N.V. has submitted a statement of defence. The request regarding Aegon
Levensverzekering N.V. [applicant] c.s. subsequently withdrew the request.
2.19
By letter of 28 April 2020, [applicant] c.s. (again) objected to Aegon
against the processing of his personal data in the BKR's CKI. In doing so, [applicant] c.s. referred, among other things, to the letter dated 14 November 2019 from the Chairman of the Authority for Personal Data to the Minister of Finance advising that more legal safeguards should be established with regard to the protection of privacy rights of data subjects who are registered by the BKR.
2.20
Aegon rejected this request by email dated May 26, 2020. In the rejection, it
referred to the statement of defence presented by Aegon Levensverzekering N.V. and
concluded that no new circumstances had emerged that would require it to make a different
consideration.
2.21
On 20 August 2019, the company 'Skydoo' informed [applicant] et al. that the
requested financing has been rejected because the BKR review shows that not all credits comply with the allowed registrations.
2.22
The document 'Mortgage Acceptance Policy' (version April 2018) of ING Bank
shows under paragraph 1.6 the following:
"If the review shows that the applicant has a loan or mortgage (...) with a coding or arrears notification, then a mortgage with ING is not possible unless there is:
- an A rating or 1-coding on a loan that has already been repaid;
- an A rating or 1-coding on a loan or mortgage and this rating or coding has been repaired at the time of application;
- A 2-coding due to a claim with NHG for remission of residual debt. (...)".
2.23
From the document 'ABN AMRO Mortgage Guide' prepared by ABN AMRO
(version 2011), it appears under paragraph 2.5.5 the following:
"If an application comes in and the BKR test shows that there is an A-coding, then this application cannot be processed. Arrears codes on a mortgage are also not acceptable. The credit risk is unacceptably high."
2.24
In the 'Guidelines a.s.r. WelThuis Hypotheek' of ASR Levensverzekeringen N.V.
it appears on page 5/16 the following:
"(...) Applicants where a pattern is visible within the BKR that credits are regularly overclosed and increased, are also not eligible for a mortgage. (...)"
2.25
In Obvion Mortgages' 'Handbook for the advisor of Obvion' (version 2018), under paragraph 6.7 the following is stated:
"Every customer is tested at the Bureau Krediet Registratie in Tiel.
-
Does a client have a default code at the BKR(..)? Then this customer will not receive a loan from us.
-
We can decide that a customer with one A1-coding will still get a loan. This is possible if:
o the customer later (...) received an H-coding,
o the customer has repaid the loan for which a default code was included, according to the BKR, or
o the customer, according to the organization where he had the loan, later still paid what he had to pay or repaid the loan,
o (..)
o Customers with a code other than Al or H will not receive a loan."
The application of [applicant] et al. and the contested decision
3.1
[applicant] c.s. requested the court to order Aegon to remove the mentioned special case coding(s) (see 2.11, above) in the CKI of the BKR, in the name of [applicant] c.s. and to keep them removed, under penalty of a fine of € 1,000 per day, with a maximum of € 100,000, and to order Aegon to pay the costs of the proceedings, including the subsequent costs.
3.2
In the contested decision, the District Court ordered Aegon to remove the special purpose coding in the BKR's CKI in the name of [applicant] et al. with effect from 1 January 2023. The requested penalty payment was rejected and the legal costs were offset in the sense that each party would bear its own costs.
3.3
To this end, the court considered the following, insofar as currently relevant:
( a) The new (repeated) request of [applicant] et al. - in which, in the opinion of the
court no new facts have been stated which relate to the personal situation of [applicant] c.s. - is not in conflict with article 12 (5) AVG or article 3:13 DCC. The request is concretely substantiated and therefore not manifestly unfounded. In addition, Aegon's interest in legal certainty that, after six weeks, in principle it does not have to expect that it will have to respond to the same request again, does not weigh as heavily as the interest of [applicant] c.s. in a judicial decision that he did not obtain on the first request. [Applicant] c.s.'s application is therefore admissible (paras. 4.14 and 4.15);
( b) The processing by the BKR - and thus also by the credit providers - of
personal data in any event finds its lawful basis in Article 6 (1) (f) of the AVG, because the processing is necessary for the purposes of protecting the legitimate interests of the BKR and its business customers (Ruling 4.21);
( c) [applicant] c.s. may, pursuant to Article 21 (1) AVG, object to the
processing of personal data relating to him. As the controller, Aegon must honor the objection, unless it establishes compelling legitimate grounds for the processing that outweigh the interests, rights and freedoms of the person concerned (Rv. 4.23);
( d) Aegon has not sufficiently substantiated that its interest in maintaining the
negative BKR registrations until and including September 2023 outweighs the interest of
[Applicant] c.s. in having them removed (paragraphs 4.31 - 4.37);
( e) [Applicant] c.s. has no overriding interest in the immediate removal of the BKR
registrations. The interest to buy a house only becomes substantial at the moment that
the lease term of the current home ends, in June 2023. The court considers a period
of six months to be able to find a home and financing, so that [applicant]
c.s. as of January 1, 2023, has a compelling interest in removal of the BKR registrations
and Aegon is ordered to remove them as of that date (Ruling 4.37).
The appeal and grounds for appeal
4.1
The [applicant] et al. did not agree with the decision of the District Court and requested the Court of Appeal to annul the disputed decision and to order Aegon to remove (or have removed) the personal data codes in the BKR CKI in the name of [applicant] et al. within five days after the date of notification, on pain of forfeiture of a penalty payment, and to order Aegon to pay the costs of the proceedings in both instances, including subsequent costs.
4.2
[applicant] et al. brought forward three grounds of appeal (called grievances by him, which terminology the court of appeal will also use) against the contested decision. In ground 1 [applicant] c.s. complains that some very relevant facts are wrongly missing from the facts established by the court (see 2.1 above). In ground 2, [applicant] c.s. argues that the District Court should have first assessed whether the BKR registration was still necessary - to protect [applicant] c.s. against overcrediting - before weighing up the interests. Finally, ground 3 challenges the district court's opinion that the BKR registration should not be removed until 1 January 2023.
4.3
Aegon put forward a defence to the grievances and also submitted four grounds of appeal against the contested decision. Ground of Appeal 1 concerns (also) the establishment of facts (see 2.1 above). With ground for appeal 2, Aegon contests the District Court's opinion that [applicant] et al.'s request is admissible (see 3.3 sub a). In ground 3 of appeal, Aegon complains that the District Court wrongly attached weight to the factor of the lapse of time when weighing up the interests, and ground 4 of appeal is directed against the District Court's opinion that there are grounds for removing the BKR registrations as of 1 January 2023. Finally, Aegon concluded by rejecting the request of [applicant] et al. on appeal and by setting aside the contested decision, stipulating that the BKR registrations in the name of [applicant] et al. in the CKI could be maintained until September 2023.
4.4
In a statement of defence on cross-appeal, [applicant] c.s. moved that Aegon's grounds for appeal be dismissed, with an order that Aegon pay the costs of the cross-appeal.
The assessment of the appeal
5.1
With the afore-mentioned grievances and grounds for appeal [applicant] c.s. and Aegon submit the dispute between the parties in its full extent to the court of appeal for judgment. The court of appeal will therefore deal with the grievances and grounds for appeal jointly. In essence, the following questions need to be answered:
A. Is [applicant] et al. admissible in his request?
B. Should the request to remove the BKR registration in the name of [applicant] c.s. be honored and if so, by when?
Admissibility of [applicant] c.s.
5.2
According to Aegon, [applicant] c.s.'s request is inadmissible. It put forward the following arguments in this respect. [applicant] c.s. has already requested Aegon to remove his personal data from the CKI on 22 August 2019. At that time, [applicant] c.s. did not commence proceedings against Aegon within six weeks of Aegon's negative response of 10 September 2019. The request of [applicant] et al. dated April 28, 2020 for removal of his personal data is identical to the earlier request dated August 22, 2019. In view of the fact that there are no new facts and circumstances that make it necessary to make a new (interest) assessment, there is no reason to take Aegon's rejection of 26 May 2020 to this repeated request by [applicant] c.s. as the starting point for calculating the six-week period of Article 35 of the AVG Implementation Act (hereinafter: UAVG).
5.3
[Applicant] c.s. takes the position that he filed a petition within the six-week period. The deletion request of 28 April 2020 was rejected by Aegon on 26 May 2020 by referring to a defence document submitted by a third party in another proceeding.
5.4
In this respect the court of appeal considers the following.
Pursuant to Article 35 (2) UAVG - if the data controller has responded to the removal request within the period prescribed in Article 12 (3) AVG - the petition must be filed with the court within six weeks of receiving that response. The period of six weeks has a fatal character and exceeding it will, in principle, lead to inadmissibility. The purpose of this period is also to prevent the data controller from being involved in legal proceedings long after the request has been rejected.
5.5
It is not disputed between the parties that [applicant] c.s. lodged an appeal with the civil courts against the earlier rejection decision of 10 September 2019 within the six-week period, but in doing so mistakenly involved the wrong party (Aegon Levensverzekering N.V., belonging to the same group as Aegon) in court (see 2.18 above). In this respect, [applicant] c.s. argued (without being refuted) that Aegon did not want to cooperate with a request from [applicant] c.s. to still involve Aegon in those proceedings and to refrain from relying on the six-week period in Article 35 (2) of the UAVG, as a result of which [applicant] c.s. was forced to withdraw the proceedings against Aegon Levensverzekering N.V. This while [applicant] c.s. had not been able to do so. This while the petition submitted by [applicant] c.s. in those proceedings, according to [applicant] c.s.'s unrefuted statement, was also known to Aegon; Aegon's lawyer assisted Aegon Levensverzekering N.V. in those proceedings.
5.6
Pursuant to Article 21 (1) of the AVG, the data subject has the right at any time to object, on grounds relating to his particular situation, to the processing of personal data concerning him. Together with Aegon, the Court of Appeal is of the opinion that [applicant] et al. did not submit any new facts and circumstances (relating to his personal situation) in his request of 28 April 2020. The Court of Appeal can also follow Aegon in its argument that the six-week term of Article 35 (2) of the UAVG could be circumvented if the person involved could at any moment submit a new request for deletion of his personal data, which would make the six-week term run again. In the present case, however, it is clear that the new request of [applicant] c.s., dated 28 April 2020, is motivated by the desire to correct the procedural error (involving the wrong Aegon entity in court) - now that he claims to still have an interest in the removal of his personal data -, and to still obtain the possibility of a judicial review of his request for removal. Even though [applicant] et al. did not submit any new facts and circumstances in the new request (relating to his personal situation), in the opinion of the Court of Appeal a reasonable interpretation of Article 35 (2) AVG under the given circumstances - and in view of the purport of the statutory system (see 5. 4 above) - that the possibility of appeal is open within six weeks after the decision to reject this new request, the more so since [applicant] et al. did not receive a court decision on his first request (as a result of - as is not disputed by Aegon - the inclusion of an incorrect party name). Aegon's interest in legal certainty that after six weeks it did not have to expect that it would still be involved in legal proceedings therefore weighs less in this case than the right of [applicant] c.s. to object pursuant to Article 21 AVG and the corresponding right of appeal in Article 35 UAVG.
5.7
In this respect the Court considers it important that Aegon, in its response of 26 May 2020, did not take the position that this was a repeated (identical) request from [applicant] c.s. by referring to the earlier request from [applicant] c.s. of 22 August 2019 and that it would no longer consider the request for that reason (cf. Article 12 (5) AVG). Aegon, on the other hand, has (re)assessed the content of the request and indicated in its response that, as far as the balancing of interests is concerned, it agrees with the position taken by another party, Aegon Levensverzekering N.V., in its defence in the proceedings that [applicant] c.s. had initiated against the latter. Although Aegon does indicate in its response that [applicant] c.s. has not put forward any new relevant facts and circumstances, it does not refer for that purpose to the earlier request made by [applicant] c.s. on 22 August 2019 but to the facts and circumstances that the court considered in its balancing of interests in proceedings that [applicant] c.s. had initiated against Rabobank.
5.8
In view of the above, the Court - unlike Aegon - takes the request for removal dated 28 April 2020 by [applicant] c.s. and Aegon's dismissive response to it dated 26 May 2020 as a starting point when answering the question of whether [applicant] c.s. submitted his request in time. Since [applicant] c.s. submitted the application to the District Court within six weeks after Aegon's dismissive response of 26 May 2020, in accordance with the provisions of Article 35 (2) UAVG, [applicant] c.s. is, in the opinion of the Court of Appeal, admissible in his application.
Review of the request for removal: weighing interests
5.9
The court of appeal will now consider the contents of the request made by [applicant] c.s. to order Aegon to remove the BKR registrations in question.
5.10
The court of appeal puts the following first. It is not disputed between the parties that the BKR registrations are correct. There were arrears in payment and a large part of the residual debt (€ 251,196.63) has been written off to Aegon. The question before the court is whether the registrations should now be removed, given the current circumstances.
5.11
The District Court assessed the removal request of [applicant] c.s., in accordance with that request, on the basis of Articles 6 (1) (f) AVG, 17 and 21 AVG (see 3.3 sub b and c). No complaint has been directed against this. The Court of Appeal will also take this basis as a starting point for the evaluation of the removal request of [applicant] c.s.
5.12
Article 21 (1), second sentence, AVG stipulates that the controller (in this case Aegon) shall cease processing personal data unless it demonstrates compelling legitimate grounds for the processing which override the interests or the fundamental rights and freedoms of the data subject. Thus, Aegon must demonstrate that, in this particular case, its compelling legitimate interests (or those of a third party) outweigh the interests or fundamental rights and freedoms of [applicant] et al. (see also Preamble AVG, no. 69).
5.13
Contrary to what [applicant] et al. argue, this balancing of interests should not be preceded by a necessity test in the sense that it should first be determined whether the BKR registration is still necessary at this time. This is part of the balancing of interests that must take place pursuant to Article 21(1) AVG, whereby it is examined whether the infringement of the interests of the data subject is not disproportionate in relation to the purpose to be served by the processing (proportionality test) and whether that purpose cannot reasonably be achieved in a different manner that is less detrimental to the data subject (subsidiarity test).
5.14
The [applicant] et al. argued that at present there are no compelling legitimate grounds for Aegon to do so, so that no balancing of interests needs to take place, or at least that the balancing of interests works out in his favour. Aegon, on the other hand, takes the position that the personal data of [applicant] et al. should be included in the BKR's CKI for the entire five-year period, i.e. until September 2023.
5.15
The court considers the following. Pursuant to Section 4:32 of the Financial Supervision Act, credit providers are obliged to participate in a credit registration system. The purpose of credit registration is to promote socially responsible financial services, as (also) follows from the General Regulations of the CKI (hereinafter: CKI Regulations). On the one hand it is in the interest of consumers to protect them from overcrediting and other financial problems (problematic debt situations). On the other hand, it is in the interest of credit providers to limit financial risks when granting credit and to prevent and combat abuse and fraud. The credit registration system created by the BKR serves these interests, among other things, by informing lenders about relevant details that have occurred in the (recent) past. To this end, a credit provider is required (under the CKI regulations) to register certain late payments and other irregularities in the CKI. Such a special feature code will in principle remain in place for up to five years after the arrears have been repaid or the credit agreement has been terminated.
5.16
Aegon argued that [applicant] et al. had been in arrears for a long period of time and that Aegon was left with a residual debt of € 251,196.63, which it had to write off to a large extent. According to Aegon, [applicant] c.s. did not do everything in his power to pay his debts (as much as possible). The court ordered Aegon to agree to the proposal of [applicant] c.s. to pay an amount of € 22,787.25 of the total debt of € 251,196.63, assuming an income of [applicant] c.s. at social security level. At the time [applicant] c.s. also had a tax debt of € 40,000 and a debt with Rabobank (which also remained largely unpaid and has been written off). Shortly after this debt settlement became final, [applicant] took early retirement and receives a net income of € 4,100 per month. The fact that a (debt settlement) route was followed as a result of which [applicant] et al. became debt free points precisely to a risk of overcrediting. Earlier [applicant] also had a generous income, but that did not protect him from the problematic financial situation that led to his registrations by Aegon and Rabobank, according to Aegon.
5.17
In the opinion of the court of appeal, Aegon has sufficiently argued to be able to assume that it has a legitimate interest in maintaining the BKR registrations in the name of [applicant] c.s. for the duration of five years. The Court of Appeal takes into account that the special situation coding 3 in this case means that Aegon had to write off a considerable residual debt. It is also significant that through a debt settlement with a forced composition [applicant] c.s. was relieved of a debt burden of several tons, which was partly related to the financing of the purchase of a house. This circumstance is relevant for a lender when assessing the question of whether the mortgage financing sought by [applicant] c.s. is justified in connection with the risk of excessive lending and for assessing the credit risks.
5.18
[Applicant] c.s. countered that his interest in removing the BKR registration was that he now wished to purchase a home and that the BKR registration was hindering him in obtaining financing for the purchase thereof. [Applicant] et al. currently rent a home, but the lease ends on June 8, 2023. The home is large, drafty and difficult to heat. The heating costs are above average and no maintenance has been done to the house for a long time. In addition, the house prices continue to rise, so that the interest of [applicant] c.s. to buy a house already exists now. [applicant] c.s. furthermore argues that since the debt settlement he has not had any problematic debts and that he currently has a stable income. He will receive a generous pension and on top of that he will also receive an old-age pension, which amounts will be paid until the end of his life. Therefore, in view of the objective of the BKR (to protect consumers against overcrediting), there is no longer any need to maintain the BKR registration of [applicant] c.s. at this time, according to [applicant] c.s.
5.19
The desire of [applicant] et al. to enter into new financial obligations in connection with the purchase of a home - without being hindered by the BKR registration - is, in the opinion of the Court of Appeal, of too little weight to have Aegon prematurely remove the codes in the CKI, of which it is not disputed that they are correct in themselves. In this respect it is important that [applicant] c.s. can stay in the current house until 8 June 2023. Although the Court understands that [applicant] c.s. prefers to have his own home that meets his requirements, the Court is of the opinion that [applicant] c.s. has not sufficiently demonstrated that he has no possibilities to find other housing, nor that it is necessary for him to move into his own home. [applicant] c.s. has brought forward that it is impossible to obtain a mortgage loan or a rental agreement in the private sector with a negative BKR code A or 2/3. Aegon has disputed this assertion and [applicant] c.s. has (subsequently) not stated anything that shows that he has made concrete attempts to find another (rental) home. [Applicant] c.s. only submitted as Annex 23 to the application at first instance a number of email messages from 2018 and 2019 from rental agencies in, among others, Utrecht, Rotterdam and Maastricht. It is not clear that these (anonymized) e-mail messages are addressed to [applicant] c.s. and relate to a specific property requested by him.
5.20
A currently stable financial situation does not mean that there is no danger of overcrediting and that registration should be waived. Before [applicant] c.s. got into financial difficulties, he received a generous stable income for over ten years. The fact that the financial problems were due to his resignation and the inability to find a new job, as argued by [applicant] c.s., does not mean that the problems cannot have any significance for the credit risk profile of [applicant] c.s. The Court of Appeal considers it important in this respect that [applicant] c.s. has also been given special credit codes by another credit provider (Rabobank) and that [applicant] c.s. has left several debts unpaid in the context of his debt repayment arrangement.
5.21
The conclusion based on the above is therefore that Aegon's interest in maintaining the BKR registrations outweighs the interest of [applicant] c.s. in having them removed. This means that [applicant] c.s. cannot derive a right from Article 17 AVG to the deletion of the registrations, nor does he have a right to the cessation of the registrations pursuant to Article 21 (1) AVG. The request of [applicant] c.s. for deletion of the BKR registrations in his name will therefore be rejected (as yet).
5.22
To the extent that Aegon, with its request to the Court of Appeal to determine - explicitly - that the BKR registrations in the name of [applicant] c.s. may be maintained in the CKI until September 2023, intended to institute a counterclaim, the rule applies that a counterclaim on appeal cannot be made for the first time (Article 362 of the Dutch Code of Civil Procedure).
Conclusion
5.23
In conclusion, Aegon's incidental appeal succeeds. The Court will therefore set aside the order under appeal and dismiss the request of [applicant] et al.
In view of the interrelatedness of the grievances brought forward by [applicant] et al. and the grounds for appeal brought forward by Aegon in the incidental appeal, the court of appeal sees no reason for a separate order to pay the costs of the incidental appeal. [The applicant] c.s. will be ordered as the party ruled against, provisionally enforceable as requested, to pay the costs of the application procedure in the first instance and of the appeal, for the part of Aegon in the first instance estimated at € 1. 742 (€ 656 in court fees and € 1,086 (2 points x liquidation tariff II to € 543) for attorney fees) and in appeal to € 3,000 (€ 772 in court fees and € 2,228 (2 points x liquidation tariff II to € 1,114) for attorney fees).
Decision
The Court:
- Sets aside the order of 16 December 2020 of the District Court of The Hague,
and rendering judgment again:
-
rejects the request of [applicant] et al;
-
order [applicant] et al. to pay the costs of the proceedings in appeal and at first instance, for the part of Aegon up to this judgment, fixed at a total of € 4,742 and € 163 for lawyer's fees;
-
stipulates that the attorney's fee shall be increased by € 85.00 if this order is not complied with within fourteen days after notice has been given and subsequently this order has been served;
-
stipulates that the amounts of the order to pay costs must be paid within fourteen days after the date of the judgment or, with regard to the amount of € 85,-, after the date of service, in default of which these amounts shall be increased by the statutory interest as referred to in article 6:119 of the Dutch Civil Code as of the end of the said fourteen day period;
-
declares this order as regards the order to pay costs provisionally enforceable.
This order was made by G.C. de Heer, P. Volker and B.R. ter Haar and was pronounced at the public hearing on 5 October 2021 in the presence of the Registrar.
