CBB - 20/935
From GDPRhub
| CBB - 20/935 | |
|---|---|
 | |
| Court: | CBB (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 17 GDPR 6 ECHR 51(3)(a)-(e) HRB 2008 6:19 AWB |
| Decided: | 25.10.2022 |
| Published: | |
| Parties: | Chamber of Commerce The State of the Netherlands |
| National Case Number/Name: | 20/935 |
| European Case Law Identifier: | ecli:NL:CBB:2022:730 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | LiDO (in Dutch) |
| Initial Contributor: | J. Gawlas |
The Dutch Trade and Industry Appeals Tribunal annulled a decision of the prevention of data suppression of residential address in Commercial Register.
English Summary
Facts
The data subject requested the Chamber of Commerce (the controller) to shield the visiting address of his foundation - which was also his home address - in the Commercial Register. On 15 December 2020, the controller denied this request, stating that it was mandatory to include a foundation’s visiting address in the Commercial Registry.
The data subject objected to the controller's decision, but the latter dismissed the objection as unfounded. In response, the data subject filed an appeal against this decision.
In the appeal, the data subject requested a foreclosure of their address, until the moment of the appeal decision. Initially, the controller refused to do so. However, after an order from the interim relief judge, the controller did foreclose the address. The controller should have assessed the initial request against the conditions set out in section 51(3)(a) of the HRB 2008, in which these conditions of the case have been met.
Furthermore, At the hearing before the Board, the data subject applied for damages for exceeding the reasonable time limit provided for in Article 6 ECHR. In cases such as the one at issue here, the basic principle is that the objection and appeal phases together may not exceed two years. The objection phase may not exceed six months and the appeal phase may not exceed eighteen months. In this case, the two-year period was exceeded, with no justification.
Holding
The Court of Appeal held that the appeal was well-founded and annulled the contested-decision. Meaning, that the data subject was eligible for the suppression of the entry of their residential address, on the basis of probable threat. Moreover, the data subject was awarded €500 in damages for exceeding a reasonable time limit, pursuant to article 8:88 of the AWB.
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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.
COLLEGE OF PROFESSION FOR BUSINESS case number: 20/935 decision of the multiple chamber of 25 October 2022 in the case between [name] , at [place] , appellant, and the Chamber of Commerce (Chamber of Commerce), defendant (Agent: mr. J.P.M. van der Ende). and the State of the Netherlands (the Minister of Justice and Security), the State. Process sequence By decision of 15 September 2020 (the primary decision), the respondent rejected the appellant's request to block the listing of his home address as the visiting address of the [foundation] (Foundation) in the trade register. The appellant appealed against the primary decision and requested the preliminary relief judge of the Board to make a provisional injunction. By decision of 28 October 2020 (the contested decision), the defendant declared the objection unfounded. The appellant filed an appeal against the contested decision on October 28, 2020. In a judgment of 2 November 2020, the preliminary relief judge ruled that the defendant withholds the visiting address of the Foundation in the trade register until a decision has been made on the appeal against the contested decision (ECLI:NL:CBB:2020:797). By decision of 13 November 2020, the defendant withdrew the contested decision and declared the objection well-founded. Defendant has filed a statement of defence. In letters dated 27 January 2021 and 9 September 2022, the appellant further explained his appeal. The Board dealt with the case at a hearing on September 22, 2022. The appellant took part in the hearing. The Institute has regarded the State as a party in connection with a possible exceeding of the reasonable term. Considerations 1.1 At the request of the appellant, the Foundation was registered in the trade register of the Chamber of Commerce, with the intervention of a civil-law notary. The following information is stated, as for everyone to be consulted: the name of the appellant as (sole) director and the visiting address of the Foundation (visiting address). The visiting address is the same as the home address of the appellant (home address). 1.2 In the primary decision, the defendant rejected the appellant's request to block the visiting address of the Foundation, because it is mandatory to include the visiting address of a foundation in the trade register. By the contested decision, the defendant upheld the primary decision. 1.3 In the judgment of 2 November 2020, the judge in preliminary relief proceedings considered – inter alia and insofar as relevant here – the following: “(...)4.6. The Respondent should have assessed the request to block the (residential address as) visiting address of the Foundation against the conditions for this in Article 51(3)(a) to (e) of the Hrb 2008, including the condition of a probable threat. The defendant has not done that. There is no dispute between the parties, and the preliminary relief judge also assumes that in the case of the applicant at issue in these proceedings, the aforementioned conditions for protecting the visiting address have been met. The preliminary relief judge is also of the opinion that the applicant has made it plausible that it is not possible for him to register a different visiting address for the Foundation in the short term. (...)” 1.4 By decision of November 13, 2020, the defendant withheld the visiting address of the Foundation in the trade register. The decision of November 13, 2020 2.1 Pursuant to Article 6:19 of the General Administrative Law Act (Awb), the appeal by operation of law also relates to a decision to withdraw, amend or replace the contested decision, unless the parties have insufficient interest in doing so. 2.2 The Board is of the opinion that the respondent has fully complied with the appellant by shielding the visiting address of the Foundation. This means that the appellant has insufficient interest in the assessment of the decision of 13 November 2020, so that no appeal has arisen by operation of law that still has to be decided. The contested decision 3.1 Pursuant to Article 6:19(6) of the General Administrative Law Act, withdrawal or replacement of the contested decision does not preclude the annulment of that decision if it is in the interest of the person submitting the notice of appeal. 3.2 The Board does not share the view of the respondent that the appeal must be declared inadmissible because the appellant no longer has an interest in the assessment of the appeal against the contested decision. The appellant argues that the primary decision and the contested decision were unlawful and that he suffered damage as a result. In order to be able to obtain compensation, it is important for the appellant that it is established that those decisions are unlawful. Now that the defendant does not acknowledge that the primary decision and the contested decision were incorrect or unlawful, the appellant has an interest in obtaining an opinion on this (cf. the decision of the Administrative Jurisdiction Division of the Council of State of 18 May 2016, ECLI:NL:RVS:2016 :1332). 3.3 The preliminary relief judge considered that the defendant should have assessed the request to block the (residential address as) visiting address of the Foundation against the conditions for this in Article 51, third paragraph, under a to e, of the Trade Register Decree 2008 (Hrb 2008). The defendant has not made clear why it was not required to do so, so that the Board believes that the defendant wrongly did not do so. Now, as the preliminary relief judge has also considered, it is not in dispute between the parties that the appellant meets these conditions for blocking the visiting address in this case, it must be held that the respondent has wrongly rejected the request for blocking. The Board will declare the appeal against the contested decision well-founded and annul that decision. Because the visiting address of the Foundation has already been protected in the commercial register, the primary decision does not have to be revoked. Decisions under the General Data Protection Regulation (GDPR) 4.1 By decision of November 13, 2020, in response to e-mails from appellant of October 16, 2020 and November 2, 2020, the defendant rejected his request for data erasure under Regulation (EU) 2016/679 (General Data Protection Regulation (GDPR)). In a letter dated 27 November 2020, the appellant objected to this. In his letter dated January 27, 2021, the appellant refers to an additional decision of December 18, 2020, which, as the Board understands, the respondent would have taken on the basis of the AVG. The latter decision has not been submitted. 4.2 As the Board has previously considered, it is not competent to judge an appeal against a decision of the Chamber of Commerce on the basis of the AVG (see the decision of 21 April 2020, ECLI:NL:CBB:2020:297). Insofar as the appeal is directed against the decision of 18 December 2020, the Board will therefore declare itself incompetent and forward the appeal to the competent court, the Amsterdam District Court. In the statement of defense of 23 December 2021, the defendant also noted that it will submit a statement of defense in those proceedings if the court so requests. An appeal can then be lodged against the decision of the court with the Administrative Jurisdiction Division of the Council of State. Exceeding the reasonable time 5.1 At the hearing of the Board, the appellant requested compensation for exceeding the reasonable term as referred to in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). 5.2 In cases such as the one at issue here, the basic principle is that the objection and appeal phase together may not last longer than two years. The handling of the objection may take a maximum of six months and the handling of the appeal a maximum of one and a half years. This is subject to factors that under certain circumstances may give cause to consider exceeding these treatment times justified. 5.3 In this case, the period started on September 22, 2020, the date on which the defendant received the request for an interim injunction, which it also regarded as a notice of objection against the contested decision. At the time of this ruling, the two-year term had been exceeded by more than a month. There are no factors that under certain circumstances may give rise to consider exceeding the treatment duration to be justified. The appellant is therefore entitled to €500 in compensation. Because the handling of the objection took less than six months, while the appeal took more than a year and a half, the exceeding is fully attributable to the Board. The Board will therefore, on the basis of Article 8:88 of the Awb, order the State to pay the appellant €500. Process costs 6. There are no reimbursable legal costs. Decision The lecture: declares the appeal to be well founded in so far as it is directed against the contested decision; annuls the contested decision; declares that it has no jurisdiction to take cognizance of the appeal insofar as it is directed against the decision of 18 December 2020; orders the State to pay the appellant compensation of €500. This statement was made by mr. A. Venekamp, mr. T. Pavićević and mr. M. Schoneveld in the presence of mr. N.C.H. Freeze, clerk. The decision was pronounced in public on October 25, 2022. w.g. A. Venekamp w.g. N.C.H. make love
