AN - 0000104/2021
| AN - 0000104/2021 | |
|---|---|
 | |
| Court: | AN (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Article 57(1)(f) GDPR |
| Decided: | 23.12.2022 |
| Published: | |
| Parties: | BBVA |
| National Case Number/Name: | 0000104/2021 |
| European Case Law Identifier: | |
| Appeal from: | AEPD (Spain) PS/00070/2019 |
| Appeal to: | Unknown |
| Original Language(s): | Spanish |
| Original Source: | Audiencia Nacional (in Spanish) |
| Initial Contributor: | Bernardo Armentano |
A Spanish Court annuled a millionaire fine imposed on BBVA. It held that the DPA violated principles of the sanctioning procedure as it went beyond the facts reported in the original complaints to carry out a general investigation on the bank's privacy policy.
English Summary
Facts
On 11 December 2020, the Spanish DPA (AEPD) jointly decided on 5 complaints made by different data subjects against BBVA (PS/00070/2019). In short, of the 5 complaints: 1 concerned the obligation to sign a privacy policy document to unblock a bank account; 1 referred to the validity of the consent obtained through agreement with the privacy policy document; and other 3 were related to receiving advertising messages without consent (which the bank claimed to have obtained through the privacy policy document that the clients signed).
At the end of the procedures, the AEPD found a violation of Article 6 and imposed a fine of €3.000.000. Due to the absence of clear information in the bank's privacy policy document, it also found a violation of Article 13 and 14 GDPR and imposed a fine of €2.000.000. In its decision, the AEPD considered that although the complaints referred to specific and individualized behaviors in relation to certain natural persons, the violations transcended said complaints. It held that the privacy policy document was being used to ilegally obtain consent from its customers and found that the document itself infringed the GDPR, affecting all the bank's clients. Therefore, it ordered BBVA to adapt its processing operations to the data protection law, to provide adequate information to its clients and to correct the way through which consent was being obtained.
The bank filed a judicial appeal against the AEPD decision. The main claim was that there was a total disconnection between the object of the procedure initiated by the DPA and the complaints made by the data subjects. It argued that the AEPD used specific and individual facts to initiate a sort of general review of BBVA's performance. In the bank's view, the AEPD exceeded the scope of the complaints by linking them with the bank's general policy on data protection.
Holding
In handling the bank's main claim, the Court stressed that Article 57 (1)(f) GDPR enables DPAs to handle complaints lodged by data subjects and investigate, to the extent appropriate, the subject matter of the complaint. However, it does not allow the DPA to open a sanctioning proceeding against the controller as a result of the complaint. In its reasoning, it refers to a decision from 23 April 2019 (Rec. 88/2017), in which it defined criteria for the application of the principles of sanctioning administrative law within the scope of the DPAs.
In the case at hand, the judges agreed that the AEPD failed: a) to examine the facts reported in the complaints; b) to make an assessment of the evidence in relation to those facts; and c) to link the facts to the privacy policy document. Rather, they found that the AEPD used these facts to open a sort of general investigation on the privacy policy document. In the Court's view, the reference that the data subjects made to the bank's privacy policy related to concrete facts. Therefore, the DPA is only empowered to investigate said facts or the "subject matter of the complaint".
The Court also highlighted the relevance of the principle of legality, provided for in Article 25(1) of the Spanish Constitution, within the scope of sanctioning administrative procedures. It referred to a Supreme Court precedent according to which this principle "is translated into the imperative requirement of normative predetermination of illegal behaviors and the corresponding sanctions". In the case under analysis, the National Court understood that the mere existence of a privacy policy does not correspond to any concrete violation as the GDPR do not punish potential infringements. For this reason, it held that it was not possible to impose a fine on the controller on these grounds.
Finally, the Court held that the assessment of the evidence by the DPA must be carried out in compliance with the principle of the presumption of innocence, which limits its action to the facts proven in the course of the procedure. In its understanding, the facts do not lead to the conclusion that the privacy policy violated the rights of an entire universe of consumers, not least because a small number of complaints cannot be taken as representative of thousands of bank clients.
For these reasons, the Court annulled the DPA's decision holding that it was not in accordance with the law.
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English Machine Translation of the Decision
The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.
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