Rb. Rotterdam - 9519423 \ CV EXPL 21-35975
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| Rb. Rotterdam - 9519423 \ CV EXPL 21-35975 | |
|---|---|
 | |
| Court: | Rb. Rotterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(e) GDPR Article 6(1)(f) GDPR Article 17(1)(c) GDPR Article 17(1)(d) GDPR Article 21(1) GDPR Article 350 Wetboek van Strafvordering Protocol Incident Warning System Financial Institutions 2021 Article 5.2.1 |
| Decided: | 16.09.2022 |
| Published: | 26.10.2023 |
| Parties: | plaintiff 1 plaintiff 2 N.V. UNIVÉ SCHADE STICHTING UNIVÉ RECHTSHULP |
| National Case Number/Name: | 9519423 \ CV EXPL 21-35975 |
| European Case Law Identifier: | ECLI:NL:RBROT:2022:8662 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak (in Dutch) |
| Initial Contributor: | Lorenz |
The data subjects were denied the "right to erasure" of Article 17 GDPR, as insurance fraud justifies data registration in Incident Register, EVR and notification to the CBV under GDPR, because it poses a threat to the financial sector.
English Summary
Facts
The data subjects sought to cancel their registration in the Incident Register and reports to the CVB of the Association of Insurers and the EVR, which were made by an insurance company.
The controller had registered the claimants' data for four years, alleging they provided incorrect information about a collision, constituting fraud. The claimants' data was registered in both the Incident Register and the EVR.
The court had to determine whether these registrations should be cancelled under the provisions of the General Data Protection Regulation (GDPR), specifically Article 21 paragraph 1 (right to object), Article 17 paragraph 1 (right to erasure), and Article 6 paragraph 1 e and f (lawfulness of processing).
Holding
In the case of the continued inclusion of data in the Incident Register and the EVR, the court looked into the Protocol Incident Warning System Financial Insitutions 2021, specifically Article 5.2.1 which lists the requirements against deletion. However Insurance Fraud was committed and this stipulates the qualification as a criminal offence unter Article 350 of the CPS. The same reasoning was also applied to the notification to the CBV of the Association of Insurers.
The court considered the principles of proportionality and subsidiarity, the potential consequences for the claimants, and the insurance company's legitimate interest in protecting the financial sector. The court found that the claimants had committed insurance fraud, posing a threat to the financial sector, and that the registrations were proportional and lawful.
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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.
Authority
Court of Rotterdam
Date statement
9/16/2022
Date publication
26-10-2022
Case number
9519423 \ CV EXPL 21-35975
Jurisdictions
Civil rights
Special characteristics
First instance - single
Content indication
No cover under the insurance contract. Do not delete registrations in the Incident Register, the EVR and the CBV of the Dutch Association of Insurers.
Locations
Rechtspraak.nl
Enriched pronunciation
Pronunciation
ROTTERDAM COURT
location Rotterdam
case number: 9519423 \ CV EXPL 21-35975
date of judgment: September 16, 2022
Judgment of the district judge
in the case of
1 . [plaintiff01] ,
2. [plaintiff02] ,
both living in [residential place01] ,
plaintiffs,
authorized representative: mr. A. Ester in Zwijndrecht,
in return for
1 . N.V. UNIVÉ DAMAGE,
established in Zwolle,
office in Assen,
authorized representative: mr. G. Loman in Assen,
2. FOUNDATION UNIVÉ RIGHT SHULP ,
established in Zwolle,
office in Assen,
authorized representative: [name01] in Assen.
defendants,
The parties will hereinafter be referred to as '[claimant01] c.s.', 'Univé Schade' and 'Univé Rechtshulp'. Plaintiffs are individually referred to as "[plaintiff01]" and "[plaintiff02]".
1 . The procedure
1.1.
The file consists of the following procedural documents:
-
the summons of October 21, 2021, with exhibits 1 to 26;
-
the statement of defense from Univé Schade, with exhibits 1 to 12 inclusive;
-
the statement of defense from Univé Rechtshulp, with exhibits 1 to 3 inclusive;
-
the judgment of 24 January 2022, in which an oral hearing has been determined;
-
the letter of 28 February 2022 from [claimant01] c.s., with exhibit 27;
-
the letter of 8 March 2022 from Univé Schade, with exhibit 13;
-
the court's letter dated 25 April 2022 setting a new date for an oral hearing;
-
the letter of 8 June 2022 from [plaintiff01] c.s., with exhibit 28;
-
the speaking notes of [plaintiff01] c.s.
1.2.
On June 22, 2022, the case was discussed during an oral hearing. [plaintiff 01] and [plaintiff 02] appeared in person, assisted by their authorized representative mr. Ester. Mr. [naam02], company lawyer, assisted by his authorized representative mr. Loman, appeared on behalf of Univé Schade. Mr [naam01] appeared on behalf of Univé Rechtshulp. The clerk took notes of what was discussed at the hearing.
2 . The facts
2.1.
Univé Schade is the insurer of a vehicle, an Audi A4, with a registration number ending in R (hereinafter: the Audi A4). [claimant01] c.s. is not the policyholder of this vehicle.
2.2.
Univé Rechtshulp carries out Univé Schade's legal expenses insurance on behalf of Univé Schade, namely the provision of legal assistance to insured persons who qualify for it on the basis of the insurance taken out with Univé Schade.
2.3.
As of April 14, 2015, the sole proprietorship of [plaintiff01], namely [name of sole proprietorship], has taken out insurance with Univé Schade for a vehicle, an Audi Q7, with a registration number ending in 8 (hereinafter: 'the Audi Q7' and the 'insurance agreement').
2.4.
The general terms and conditions applicable to the insurance contract read, insofar as relevant here, as follows:
“(…) 3.4 When can we stop the insurance or the insurance package?
(…)
3.4.5
In response to a claim that you have reported
We only cancel the insurance if we have a good reason to do so.
For example:
(…)
If you have deliberately caused damage.
(…)
3.4.7
If you commit fraud
We can terminate the insurance immediately if we discover fraud. We can also immediately cancel all other insurance policies in your insurance package. You will not receive a premium back.
(…)
4. Not insured
(…)
4.5.1
You are committing fraud
We do not reimburse damage if you commit fraud.
(…)
4.6.1
You cause damage on purpose
We do not compensate damage that you have caused intentionally or damage that is the result thereof.
(…)
What do we mean by…?
Fraud
If you deliberately mislead us for the purpose of benefiting yourself or another person. For example, that we compensate damage to which you or someone else is not entitled. (…)
(…)
Design
If you deliberately did or did not do something that is aimed at persons and/or things that is prohibited by law. (…)”
2.5.
According to the collision form dated 28 May 2019, on the same day
an accident occurred between the Audi A4, with Mr [name03] as driver (hereinafter: [name03] ), and the Audi Q7, with [claimant02] as driver. On the collision form, [name03] filled in the comments under 'turned too wide and hit oncoming traffic' and [plaintiff02] 'drove straight ahead and A took a turn too wide'.
2.6.
[plaintiff01] handed over the case to Univé Rechtshulp on 31 May 2019.
2.7.
Univé Rechtshulp held Univé Schade liable for the said accident by e-mail dated 31 May 2019.
2.8.
On June 5, 2019, Univé Schade acknowledged liability for the damage resulting from the accident on May 28, 2019.
2.9.
On June 14, 2019, Univé Schade received an anonymous phone call from the Dutch Association of Insurers stating that [plaintiff02] has been wrongly claiming car damage due to collisions for years and is also being paid, but that the collisions are being staged.
2.10.
On June 18, 2019, on behalf of Univé Rechtshulp, Mr [naam04] of Dekra published an expert report in which the compensation based on the current value is set at an amount of € 13,439.99 including VAT.
2.11.
A few weeks after the accident, the Audi Q7 was resold twice in a row.
2.12.
On August 2, 2019, on behalf of Univé Schade, Mr [name05] , Nivre-re, as a technical damage investigator and certified Spurfix expert at [name of company] (hereinafter: [name05] ), published a report (hereinafter: the report from [company name] ). This report states, insofar as relevant here, that:
“(…) 2.3 Analysis of Spurfix foils
(…)
This so-called Spurfix investigation shows that there is mutual trace transfer. Paint from the Audi Q7 was found on the Audi A4 and vice versa. A special feature is the direction of the rutting on the front and rear wings of the Audi A4. The direction is opposite to each other, while it is to be expected that the direction is exactly equal to each other, after all, the damage would have occurred in a movement from front to back. (…)
2.4
Analysis and further considerations
Flank damage Audi A4
As already mentioned in chapter 2.1, there was various damage to the Audi A4. Part of that damage is double track and can be seen as a contact track with a crash barrier. It concerns a straight track at a constant height with a mutual distance of approximately 19 - 20 cm. This mutual distance corresponds to the center-to-center distance of the convex sides of a crash barrier type A. A photo reconstruction is shown below in which such a crash barrier is placed on the contact tracks. The concave shape of the damage and the traces of zinc oxide found also testify to such contact.
(…)
Rear damage Audi A4
The Audi A4 was damaged at the rear on the rear bumper, taillight, rear wing and rear wheel. Below is a detailed photo of a number of relevant damages. The Audi Q7 had damage to the rear bumper, rear wheel and rear wing. (…)
As indicated in section 2.1, the rear wheel was pushed forward. Such a position of the rear wheel after a collision is only possible if that wheel was loaded from the back to the front. This is the opposite of the direction of movement of the Audi A4, after all, the Audi A4 drove forward and would have passed the Audi Q7, which was also driving forward. A photo reconstruction has shown below that the Audi A4 drove backwards against the Audi Q7 (or vice versa) for unknown reasons.
Contact between the wheels occurred when one of the vehicles was reversing. The wheel suspension of the Audi A4 is bent and the wheel is pushed forward. The hook-shaped scratch on the rear screen and several other scratches correspond exactly to the angle of the door of the Audi Q7 and the wheel arch edge (see also the image on the next page). The straight scratch on the rear bumper of the Audi Q7 at a height of approximately 60 cm corresponds to the tip of the rear wing of the Audi A4 (red arrow). The rear light of the Audi A4 caused the dent in the wheel arch edge of the Audi Q7.
(…)
4 Summary
The technical investigation carried out shows that the vehicles did hit each other. Part of the damage to both vehicles may have occurred in the manner stated by those involved. Part of the rear damage to the Audi A4 could not have occurred in the manner stated by the parties. The parties stated that after the collision, the vehicles came to a standstill within ± 50 to 60 meters of each other. The rear damage to the Audi A4 (the damage to the bumper, rear screen, rear light and rear wheel) was caused by an impact of violence from the rear. Typical damage to the Audi A4 shows that the damage was caused by the Audi Q7. The only conclusion that can be drawn from this is that (one of the vehicles) reversed, causing the rear damage to the Audi A4. The Audi A4 had already been damaged as a result of contact with a crash barrier, which was apparently unknown to the damage expert.”
2.13.
On September 5, 2019, Mr [naam06] of Univé Verzekeringen published an investigation report (the investigation report of Univé Verzekeringen), which states the following:
“(…) 7 Conclusion
(…) In summary, it can be stated that the collision did not take place in the manner stated by the policyholder [name03] and the other party [plaintiff02] .
In summary, it can also be said that the existing damage to the Audi A4 was concealed until the first conversation I had with the policyholder on 19-07-2019.
Apparently, the policyholder and the other party are negatively involved in the occurrence of the damage and the claim submitted. The policyholder has not reported any damage that has arisen earlier to the expert.”
2.14.
In a letter dated 28 October 2019, Univé Schade informed Univé Rechtshulp the following, insofar as relevant here:
“(…) Conclusion and consequences
The investigation has shown that your client provided incorrect information about the circumstances of the collision. Not all damage occurred as stated by your client. According to your client (and our insured) there has not been a second collision. However, the unique characteristics in the damage behind match each other. So something did indeed happen. From this I can only conclude that your client deliberately misled Univé with the aim of gaining an advantage for himself or another. You have tried to recover damage that did not fully arise as a result of the collision. You have made an incorrect statement about damage to our insured's car. This is fraud according to our Terms and Conditions.
(…)
Compensation claim filed
Liability was recognized on 5 June 2019 on the basis of the information available at the time. However, in view of the new information / established facts from the investigation afterwards, Univé will return to this and Univé does not accept liability for the damage you claim on behalf of your client as a result of the collision of 28 May 2019.
(…)
Incident register
In view of the findings, the (personal) data of your client has been included in our incident register.
(…)
CBV report
The CBV of the Dutch Association of Insurers has been informed of the registration in the incident register and uses this information, among other things, to coordinate investigations and perform analyses. (…)
Exclusion of your client as director
In view of the findings of the investigation, trust in your client has been damaged. This means that we will exclude your client from the policies in the name of his girlfriend at Univé. She will receive a separate message about this from the policy administration.
Notification external referral register (EVR) for 4 years
In case of proven fraud, it is possible to include your client's personal data for a maximum period of eight years in the external reference register of the CIS foundation (www.stichtingcis.nl). This database is used by financial institutions when assessing insurance applications and claims. Insurers can check whether your client is included in this list and ask him or us about the reason for the registration. After considering your client's interests against those of the insurers (proportionality), it was decided to register your client's data for 4 years.
No acceptance of non-life insurance
Univé will not accept any applications for non-life insurance from your client or with your client as an interested party for the next eight years.”
2.15.
By e-mail dated October 28, 2019, Univé Rechtshulp informed [name of sole proprietorship] that, now that there is fraud, there is no cover on the policy and that the file will be closed.
2.16.
On January 15, 2020, on behalf of [plaintiff02], Mr ing. [name07], nivre register expert at [name of company01] accident analysis (hereinafter: [name of company01]), published a report (hereinafter: the report of [name of company01] ). This report states, insofar as relevant here, that:
“(…) III – ANALYSIS
Damage/impact position
(…)
The damage I find on (many spokes of) the rim of the left front wheel of the Q7 suggests that it was set while this wheel was spinning (and the car was moving). This was also the conclusion reached by Mr. [name05] of [company name] (see page 9, the last paragraph).
The lower edge of the doors and the sill (left side Q7) show damage due to contact with a (rotating) wheel. This damage is done in the direction from front to back, appropriate to the alleged circumstances. The left front wheel of the A4 will have caused this damage. During this contact, the sill cover apparently came loose.
The damage on the left rear screen and the bumper cover may have been caused by contact with the left front edge of the A4. Height and intensity are, in my opinion, compatible with each other.
The damage on the rim of the left rear wheel of the Q7 requires particular attention.
(…)
The damage does not show a "tight" and straight image that would lead to the conclusion that the Q7 has stood still. I also do not see any "wavy" scratch damage that could indicate that the Q7 has driven. I strongly suspect that this (randomly occurring) damage on the rim of the left rear wheel is the result of contact with the sill plate that (during the impact) came loose from the Q7.
As a result, all Q7 damage can have been done during the collision with the A4 (dated 28 May 2019 on the Ringdijk in Ridderkerk).
Speeds
[plaintiff02] stated that he drove at a speed of approximately 50 km/h. This speed may be consistent with the damage that has occurred on the Q7 in combination with the indicated final position (on the right past the fork, halfway along the verge). (…)
Can the damage to the A4 be explained within the contact with the Q7?
[name05] has been able to determine through Spurfix that both vehicles have been in contact with each other. The paint from one vehicle was found on the other and vice versa.
I find damage to the A4 that I cannot trace back to the Q7. In this connection I would like to mention 2 points.
The first concerns the double straight contact track that has been placed over a (large) part of the left flank of the Audi A4 at heights of approximately 60 and 80 cm. I agree with [name05] that the damage (partly in view of its hollow character) shows characteristics of contact with a crash barrier. This cannot be explained within the alleged collision with the Q7.
The second damage concerns the protruding left rear wheel (and a bent wheel suspension) of the A4. This damage can also not be explained within the collision with the Q7.
Now that the damage from the Q7 can be explained from the A4 and only partly the other way around, the conclusion must be that the inexplicable damage from the A4 will be due to a different data or other incident.
IV – CONCLUSIONS
Damage and traces of paint that were found on both sides of the vehicles indicate that the A4 and the Q7 have had collision with each other. In addition, all visible damage to the Q7 can plausibly have occurred.
The damage on the left flank of the Q7 indicates that both vehicles were in motion during the impact.
The speed of approximately 50 km/h mentioned by [claimant02] may fit within the damage picture and the (globally known) final position of the Q7.
The damage to the A4 that cannot be explained from the collision with the Q7 must have occurred during a different incident.”
2.17.
By letter dated February 3, 2020, [name05] responded to the report of [name of company01]. The response from [company name] reads, insofar as relevant here, as follows:
“(…) Response to analysis [company name01]
states that the damage to the Audi Q7 "may have occurred" as a result of the collision with the Audi A4. [company name01] does not provide any evidence that the damage to the wheel arch edge (the rear screen) and the rear bumper of the Audi Q7 was caused by the lateral contact when the vehicles grazed each other (the collision). The only comment made about this is in paragraph 3 on page 5/7 that "the height and intensity are, in my opinion, appropriate". technically explicable reason why the damage to the wheel arch edge (rear screen) and the rear bumper would not be possible in case of rearward contact with the rear bumper, the rear light and the rear wheel of the Audi 4 are not given. no explanation for it.
(…)
Only in the manner shown above can the traces of damage to the wheel arch and the rear bumper of the Audi Q7 be placed with the damage to the rear light, the rear bumper and the wheel arch edge of the Audi A4. This is therefore only possible when reversing and not when driving past each other forwards (the stated accident situation).
In addition, the tracks on the SPURFIX foils are also directed opposite to each other, which also indicates that damage to the rear screen of the Audi A4 (where the tracks were taken from) is directed opposite to the forward direction as the damage would be to arise. I refer to the images on page 11 in the earlier report. Here, too, [name of company01] has no defense.
[company name01] also gives no explanation for the damage to the rear wheel of the Audi A4. He agrees with the undersigned that the rear wheel is bent forward and that this cannot be a result of the alleged collision. The fact that the damage to the rear wheel can be placed with the other traces on the two vehicles as shown above seems to have escaped him, or at least no factual refutation of the technical findings of the undersigned has been made by [name of company01].
[company name01] states that the speed of ± 50 km/h stated by the Audi Q7 driver can fit within the damage picture and the (globally known) final position of the Audi Q7. How [name of company01] came to this is a mystery to me. After all, he himself already indicates that the final position is “global”. The statement from the driver of the Audi Q7 states that he does not know whether he braked before and/or during the collision. The moment of reaction to the danger and the moment of braking are of course important to arrive at the final position. Nothing is known about this, however, and it cannot therefore simply be stated that the specified speed of ± 50 km/h can fit. Incidentally, the undersigned did not mention anything about the stated speeds in the report (for the reasons stated above), but since [name of company01] believes it can say something about this, I believe that it is necessary to respond to the (incorrect or unfounded) statement. to go.
Response to conclusion [company name01]
With regard to the conclusions drawn by [company name01] on pages 6/7 and 7/7 the following:
1. Damage and traces of paint that were found on both sides of the vehicles suggest that the A4 and the Q7 had collided with each other. In addition, all visible damage to the Q7 can plausibly have occurred.
Sub 1: [company name01] does not contradict in any way that the damage to the rear of the Audi A4 (rear wheel, rear bumper, rear screen and rear light) can be placed from a technical point of view in the event of rearward contact with the Audi Q7. Merely stating that “all visible damage to the Q7 is plausible” is not proof.
2. The damage on the left flank of the Q7 indicates that both vehicles were in motion during the impact.
Sub 2: [name of company01] only seems to be able to state that the vehicles were moving at the time of the collision. In what way and whether these were multiple directions he leaves open, or at least does not go into that.
3. The speed of approximately 50 km/h mentioned by [claimant02] may fit within the damage picture and the (globally known) final position of the Q7.
Sub 3: there is no technical evidence whatsoever that the collision with the Audi Q7 could have happened at ± 50 km/h. References such as tracks on the road surface. after all, statements about the moment of braking and the exact final positions of the vehicles and the like are missing.
4. The damage to the A4 that cannot be explained from the collision with the Q7 must have occurred during a different incident.
Sub 4: how the damage to the rear of the vehicles could have occurred is not specified by [name of company01]. Apparently he has no explanation for this. In his letter, the technical evidence submitted by the undersigned has not been properly considered in any way and that evidence has therefore not been challenged. Any technical evidence that the undersigned ([company name]) has a wrong view of the origin of the rear damage to the vehicles is not provided by
[company name01] .
Conclusion on report [company name01] :
In view of the foregoing, I therefore see no reason whatsoever to return to the findings of my report of 2 August 2019 and I therefore maintain the position taken earlier.”
2.18.
By e-mail dated 20 February 2020, [name of company01] informed [claimant02] that the response of [name05] referred to in 2.17 does not lead to different conclusions than stated in the report of [name of company01].
2.19.
On April 9, 2020, an investigation was conducted by Balans-Adviesburo on behalf of [name of one-man business] into the various reports, documents, the deviations and the connection (hereinafter: the investigation by Balans). The report of this investigation states, insofar as relevant here, the following:
"(…) Analysis
-
The photo reconstructions of the rear have been made to fit the assumption of reversing (core of the matter). No deviations (height differences) can be seen in the photo reconstructions of the front of the vehicles. The front is not a point of discussion.
-
As a result of these incorrect reconstructions, wrong conclusions are drawn, such as the rear light and the scratch on the rear bumper cover.
-
The forcibly bent rear wheel of the A4, optionally, technically and Spurfix cannot have been caused by the Q7
-
There is no evidence whatsoever regarding Meer's firm belief that reversing took place.
-
This is consistent with the statements of the drivers of the A4 and Q7. (Unknown to each other before the collision)
-
With this, the ground under the accusation of Univé, regarding fraud, has been lost and wrongly done.
-
The expert and Spurfix are, in this case, the same. (the butcher inspects his own meat)
-
Hearing both sides did not or insufficiently take place. The Meer investigation was only reported during the interrogations by the investigator [name06]. The key points of this study were completely insufficiently addressed. A copy of the report was also not provided.
-
[…] any unclear damage to the A4 is not clear (except for the crash barrier track). Also not provable by [name08] . A trailer was coupled to the Q7, perhaps it was also hit by the A4. This was not included in the study.
-
Univé has done absolutely insufficient research of its own. Sail close to the More report. Has been negligent in rebuttal, in providing the documents, large time gap between the various parts of their investigation (their fraud allegation was received 5 months after the collision, without attachments). It seems that Univé is on a (financial) war of attrition.”
2.20.
[name05] responded to the report of Balans-Adviesburo by letter dated August 3, 2020. The letter states, in so far as relevant:
“ Factual refutation response Balance
Rear wheel damage Audi Q7
Balans states that the anthracite gray metallic car paint on the SPURFIX foil that was removed from the rear rear wheel of the Audi Q7 cannot come from the rim of the Audi A4, as it is silver gray in color. Balans forgets that it has not been stated that these traces are from the rim of the Audi A4. These traces are paint particles from the Audi A4 and come from body parts of the Audi A4 that have been in contact with the rear wheel of the Audi Q7.
Damage wheel arch edge Audi Q7
Balans states that there is no damage to the wheel arch edge and that [company name] may have been misled by primer sprayed on the damaged spot. As can be seen from the photos that Balans has posted in his letter, there is indeed dent formation on the wheel arch edge. No primer had been sprayed on the damaged spot when the Audi Q7 was inspected. Here the sheet metal had been stripped and dented.
(…)
With regard to this dent and the photo reconstruction, Balans fails to consider that a collision is a dynamic event in which vehicles sway and bend in and out relative to each other. In our field as traffic accident experts, this can always be taken into account, which has not been contradicted by [name of company01].
(…)
In this case there is a difference in height of a few centimetres, which is certainly to be expected given the climbing of one of the vehicles as a result of the contact with the other wheel.
With that movement and the vehicles returning/driving afterwards, a tilting of the vehicles is to be expected, whereby the rear light of the Audi A4 can press the dent in the wheel arch edge of the Audi 07. The top of the wheel arch edge is `softer' than the flat upright edge, so that damage is more likely to occur on the top than on the upright edge.
The contact points on the Audi A4 match the contours of the Audi Q7 exactly. The hook in the rear screen of the Audi A4 was created by the contact with the corner of the rear door of the Audi Q7. This, together with the other contact points and the damage to the rear light, which corresponds to the dent in the wheel arch edge and the rear wheel of the Audi A4 being pressed forward, is irrefutable proof that after the side (forward-facing) collision there was a second (rearward facing) collision between the vehicles has occurred.
Finally
It should be clear that the assessment of the alleged collision by [company name] was carried out correctly and independently. The points made or put forward by Balans can actually be refuted, so that there is no reason at all to come to a different conclusion or to adjust the conclusion.
Furthermore, the points put forward by Balans have actually been confirmed by [company name01]. After all, he stated that the damage to the rear wheel of the Audi A4 must have been caused by another incident. In view of the traces found on both vehicles and thus technical evidence, this damage to the rear wheel of the Audi A4 can be placed with the damage to the Audi Q7 and after the "first" collision, the damage must have been reversed in order to cause that damage. ”
2.21.
By e-mail dated 20 August 2020, Univé Rechtshulp informed [name of sole proprietorship] that, given the content of the reports and the contradictions, it has been established that fraud has been committed and that the file will be closed.
3 . The dispute
3.1.
[claimant01] c.s. claims summarized by judgment, provisionally enforceable,
to order Ia Univé Schade to pay [plaintiff01] an amount of € 13,439.99, plus statutory interest from 28 May 2019, at least from the day of the summons, until the day of full payment;
insofar as the claim under II against Univé Rechtshulp is rejected:
Ib. to order Univé Schade to pay [plaintiff01] an amount of € 2,241.53, plus the statutory interest from the day of the summons until the day of full payment;
II. to order Univé Rechtshulp to pay [plaintiff01] an amount of € 6,186.43, or at least € 3,944.90 in respect of the costs incurred by it for legal assistance and other experts, plus the statutory interest from the day of the summons, all until the day of full satisfaction;
III. primary:
Order Univé Rechtshulp to pay to [plaintiff01] c.s. the entire
costs incurred for legal assistance in the present proceedings, including the lawyer's fees actually payable by them, court fees,
to reimburse bailiff costs and any witness fees, to be drawn up by the state and to be settled in accordance with the law;
alternatively:
to order Univé Schade and Univé Rechtshulp jointly and severally, provided that one paying the other is discharged, to pay the costs of the proceedings;
IV. order Univé Schade to register [plaintiff02] in the Incident Register within seven days after service of this judgment, as well as to report to the CBV of the Association of Insurers and to report for a period of four years to the External Referral Register (hereinafter: EVR) with retroactive effect to the date of entry in those registers and to provide [plaintiff02] with written evidence thereof,
as well as to provide [claimant02] with a written statement within seven days after service of this judgment to the effect that he was wrongly registered in the aforementioned registers and will no longer be excluded from policies in the name of [claimant01] , and furthermore that Univé Schade will not refuse any applications for non-life insurance from [plaintiff02] in connection with the collision on May 28, 2019, all on penalty of a penalty of € 500 for each day that Univé Schade should be in default in complying with one or more of these commandments stay, with a maximum of € 50,000.
3.2.
[plaintiff01] c.s. bases its claims on the following.
3.2.1.
On 28 May 2019, [claimant02] was driving [claimant01]'s vehicle and a collision occurred because [name03] did not give way. Because [name03] is insured with Univé Schade, according to [plaintiff01] c.s. Univé Schade is liable under Article 6 WAM for the damage to the vehicle suffered by [plaintiff01]. [claimant01] c.s. disputes that there was a staged collision. Univé Schade therefore wrongly refused to pay out the damage. Insofar as Univé Schade takes the position that fraud has been committed, this is a liberating defense and the burden of proof rests on Univé Schade. Spzonar is entitled to the damage amount of € 13,439.99, plus the statutory interest from 28 May 2019.
[plaintiff01] et al. incurred costs amounting to € 2,241.53 to determine the damage and liability as referred to in Article 6:96 paragraph 2 sub b of the Dutch Civil Code. Since these costs would not have been incurred if the claim had been settled on the basis of the acknowledgment, these costs must be borne by Univé Schade. Univé Rechtshulp will owe these costs in the event that these costs would also fall under the legal expenses insurance.
3.2.2.
[plaintiff01] incurred costs for legal assistance amounting to € 3,944.90. Now that [claimant01] would have been entitled to free legal assistance from Univé Rechtshulp on the basis of her insurance policy, Univé Rechtshulp owes [claimant01] the aforementioned amount. In addition, Univé Rechtshulp must pay the costs of € 2,241.53 referred to in legal ground 3.2.1 for determining the damage and liability. Add up the aforementioned amounts
3.2.3.
[claimant01] c.s. would have received free legal assistance from Univé Rechtshulp based on the insurance policy, whereby all legal costs would have been reimbursed, regardless of the liquidation rate. Therefore, primary reimbursement of the legal costs is claimed by Univé Rechtshulp, to be further drawn up by the state and to be settled in accordance with the law. In the alternative, it is claimed that Univé Schade and Univé Rechtshulp should be jointly and severally ordered to pay the costs of the proceedings.
3.2.4.
[plaintiff02] has been included in various fraud registers. However, these reports and/or registrations are based on the incorrect position that [plaintiff02] has committed fraud. [claimant02] claims the removal of the registration in the Incident Register, as well as the notification to the CBV of the Association of Insurers and the notification for a period of four years to the EVR, with retroactive effect to the date of the registration and/or notification, under penalty of a penalty. It is also requested that a written statement be issued that [plaintiff02] has been wrongly registered, that [plaintiff02] will no longer be excluded from policies in the name of [plaintiff01] and that Univé Schade will not refuse any applications for non-life insurance from [plaintiff02] in connection with the collision on May 28, 2019.
3.3.
Univé Schade does not agree with the claims and concludes that the claims of [plaintiff01] c.s. be declared inadmissible, or that the claims be denied, with an order against [plaintiff01] c.s. to pay the costs of the proceedings and subsequent costs, both to be increased by the statutory interest.
3.4.
Univé Rechtshulp does not agree with the claims and concludes that the claim under II should be rejected, with [claimant01] c.s. ordered to pay the costs of the proceedings, or that the claim under II should be allowed under the condition that Univé Rechtshulp is given the opportunity to against the reasonable and customary costs as referred to in the policy conditions. With regard to the claim under III, Univé Rechtshulp refers to the judgment of the subdistrict court judge.
4 . The assessment
Progress Ia
4.1.
The parties dispute whether Univé Schade is obliged to provide cover for the damage claimed under Ia of € 13,439.99 as a result of the collision on 28 May 2019.
4.2.
Univé Schade has invoked the exclusion clause in article 4.5.1 of the general terms and conditions (see ground 2.4), on the basis of which damage due to fraud is excluded. This means that Univé Schade bears the burden of proof and, where applicable, the risk of proof of facts and circumstances that justify the conclusion that fraud has been committed.
4.3.
Univé Schade has argued that [plaintiff01] (or [plaintiff02]) committed fraud, now that the damage to the vehicle of [plaintiff01] was wholly or partly the result of a deliberate collision. Now that [plaintiff01] has not reported to Univé Schade how the damage to her vehicle arose, she deliberately misled Univé Schade with the aim of gaining an advantage for herself or someone else, or at least tried to mislead Univé Schade. Univé Schade refers to the report of [company name] to substantiate its position. This report states that “the rear wheel [of the Audi A4] [was] pushed forward. Such a position of the rear wheel after a collision is only possible if that wheel was loaded from the back to the front. This is opposite to the direction of movement of the Audi A4, after all, the Audi A4 was driving forward and would have passed the Audi Q7, which was also driving forward.” The summary included in point 4 in the report also states that “part of the damage to both vehicles may (…) have occurred in the manner stated by those involved. Part of the rear damage to the Audi A4 could not have occurred in the manner stated by the parties. The parties stated that after the collision, the vehicles came to a standstill within ± 50 to 60 meters of each other. The rear damage to the Audi A4 (the damage to the bumper, rear screen, rear light and rear wheel) was caused by an impact of violence from the rear. Typical damage to the Audi A4 shows that the damage was caused by the Audi Q7. The only conclusion that can be drawn from this is that (one of the vehicles) drove backwards, causing the rear damage to the Audi A4.” According to Univé Schade, the only conclusion based on this investigation is that not all damage was caused resulting from the alleged forward grazing collision. There was a second contact between the vehicles, which resulted in damage at least to the rear of the vehicles. Now that [plaintiff01] (or [plaintiff02] ) has not reported this in the claim report, an incorrect representation of the facts has been suggested and therefore there is fraud.
4.4.
In response to Univé Schade's position, [plaintiff01] et al. disputed that there was fraud. [plaintiff01] c.s. has referred to the report of [name of company01] for substantiation. In this report, under the analysis of the question 'Can the damage to the A4 be explained within the contact with the Q7?', the answer was 'I find damage on the A4 that I cannot trace back to the Q7. In this connection I would like to mention 2 points. (…) The second damage concerns the protruding left rear wheel (and a bent wheel suspension) of the A4. This damage can also not be explained within the collision with the Q7. Now that the damage from the Q7 can be explained from the A4 and only partly the other way around, the conclusion must be that the inexplicable damage from the A4 will be due to a different data or other incident. ’ The report concluded that ‘1) damage and traces of paint that were found on both sides of the vehicles (…) [allow] to state that the A4 and the Q7 had collided with each other. In addition, all visible damage to the Q7 can plausibly have arisen (…) 4) the damage to the A4 that cannot be explained from the collision with the Q7 must have arisen during a different incident. ’ According to [claimant01] it follows from the above that the damage to the vehicle of [claimant01] is the result of the collision.
4.5.
Univé Schade has contradicted the conclusions from the report of [name of company01], with reference to the response given on February 3, 2020 by [name of company05] to the report of [name of company01]. The response states that '(…) there is no evidence whatsoever that the damage to the wheel arch edge (the rear screen) and the rear bumper of the Audi Q7 was caused by the lateral contact when the vehicles brushed past each other (the collision). . ’ and ‘a technically explicable reason that the damage to the wheel arch edge (rear screen) and the rear bumper would not be possible in case of rearward contact with the rear bumper, the rear light and the rear wheel of the Audi 4 is not given. Apparently [name of company01] has no explanation for this.' [name of company01] also responded that [name of company01] did not state 'how the damage to the rear of the vehicles could have arisen (…). Apparently he has no explanation for this. In his letter, the technical evidence submitted by the undersigned has not been properly considered in any way and that evidence has therefore not been challenged. Any technical evidence that the undersigned ([name of company] ) has a wrong view of the origin of the rear damage to the vehicles is not provided by [name of company01] . ’. In view of this reaction, Univé Schade maintains its position.
4.6.
[claimant01] c.s. has contradicted the response of [naam05] by letter dated 3 February 2020 by referring to the analysis provided by Balans-Adviesburo on 9 April 2020 that 'the violently bent rear wheel of the A4 is optional, technically and Spurfix is not could have been caused by the Q7' and 'there is no evidence whatsoever regarding Meer [[name of company]]'s strong belief that reversing was done' . This analysis was refuted by [naam05] in a letter dated 3 August 2020.
4.7.
It is considered that the report of [name of company] describes in a detailed and convincing manner that and why the damage to the vehicle of [claimant01] cannot have been caused solely by the collision as [claimant02] (and [name03]) reported . The fact that, as stated in the report of [name of company01], the visible damage to the vehicle of [plaintiff01] can plausibly have been caused by the collision and the inexplicable damage to the bent wheel suspension must have been caused by another incident, is in the light of the reasoned refutation of [name05] of 3 February 2020 is insufficient to consider the conclusions from the report of [name of company] unlikely. It would have been for [plaintiff01] c.s. to further substantiate his dispute (with documents). The reference to the analysis of Balans-Adviesburo is insufficient for this purpose, now that this analysis has also been contradicted by [name05] with reasons.
4.8.
Considering the foregoing in mutual connection and cohesion, the subdistrict court is of the opinion that the conclusions included in the report of [name of company] have not been sufficiently refuted by [claimant01] et al. This means that the subdistrict court assumes that the report of [name of company] is correct. ] and that it has been sufficiently established that the damage to the vehicle of [plaintiff01] cannot only have occurred as described in the damage report. This implies that it must be assumed that the damage report from [claimant01] to Univé Schade was not (completely) correct and that [claimant01] deliberately misled Univé Schade, apparently with the aim of gaining an advantage for itself or someone else. Now that the description of fraud included in the general terms and conditions has been met, the subdistrict court is of the opinion that Univé Schade has good grounds invoking the exclusion ground in Article 4.5.1 of the general terms and conditions and that it has therefore rightly taken the position assuming that there is no cover for the claimed damage of € 13,439.99. Claim Ia is therefore rejected.
Claims Ib, II and III
4.9.
Claims Ib, II and III are ancillary claims arising from main claim Ia. Now that claim Ia is rejected, claims Ib, II and III share the same fate.
Progress IV
4.10.
Claim IV – in short – seeks an order against Univé Schade to cancel the registration of [plaintiff02] in the Incident Register, as well as the report to the CBV of the Association of Insurers and the report to the EVR for a period of four years.
4.11.
During the oral hearing, the attorney of [plaintiff01] c.s. indicated that claim IV should also be read as being for [plaintiff01] and not only for [plaintiff02] . [plaintiff01] was refused by an insurer to conclude an insurance contract, so that she was apparently also entered in the register or reported to the CVB of the Dutch Association of Insurers.
4.12.
When asked, [name02] has indicated on behalf of Univé Schade that he suspects that the registration and statements also relate to [claimant01], but that this was not checked prior to the oral hearing.
4.13.
The subdistrict court judge deduces from the foregoing that [name02] has not objected to the reading of claim IV, so that the assessment of the claim not only relates to [claimant02] , but also to [claimant01] . The registration in the Incident Register and the associated EVR and the notification to the CBV of the Association of Insurers are assessed separately below.
Incident register and EVR
4.14.
It is assumed that the personal data of [claimant01] c.s. is registered in both the Incident Register and the EVR. The question is whether these registrations should be cancelled.
4.15.
Univé Schade has (apparently) registered the data of [claimant01] c.s. in the Incident Register and the EVR for a period of four years, because according to Univé Schade it has been established that [claimant01] and [claimant02] were guilty of providing incorrect information regarding the circumstances of the collision and therefore they have committed fraud.
4.16.
The registrations and the request for their deletion must be assessed on the basis of the provisions of the General Data Protection Regulation (hereinafter: GDPR). Article 21 paragraph 1 GDPR provides that a data subject has the right at any time to object, for reasons related to his particular situation, to the processing of personal data concerning him on the basis of Article 6 paragraph 1 under e and f GDPR. Pursuant to Article 17 paragraph 1 preamble and under c and d GDPR, the data subject has the right to erasure of personal data concerning him or her if the data subject objects to the processing in accordance with Article 21 paragraph 1 GDPR and there are no overriding legitimate grounds for the processing , or when the personal data has been processed unlawfully. According to article 6 paragraph 1, opening words and under f GDPR, the processing is lawful if and insofar as the processing is necessary for the protection of the legitimate interests of the controller or of a third party, except when the interests or fundamental rights and freedoms of the data subjects that require the protection of personal data outweigh those interests, in particular when the data subject is a child. In this respect, the principles of proportionality and subsidiarity must be complied with. This means that the infringement of the interests of the data subjects may not be disproportionate in relation to the purpose to be served with the processing, and that this purpose cannot reasonably be achieved in another way that is less detrimental to the data subject.
4.17.
The following is important in this regard. A recording in, in particular, the EVR – which can be consulted via the Central Information System Foundation (hereinafter: CIS Foundation) – can have far-reaching consequences for the person concerned. After all, all participating financial institutions can determine through testing in the EVR that there is a case of inclusion in the incident register of (an)other participant(s). It is then possible that they can ask for further information about the admission. The consequence of this may be that not only the participant who has entered the incident register, but also other participants will refuse their (financial) services to the person admitted. High requirements must therefore be set for the land(s) for inclusion in the said registers.
4.18.
This starting point can be found in the Protocol Incident Warning System Financial Institutions 2021 (hereinafter: the Protocol). This Protocol specifies in more detail in which cases data may be included and remain included in the Incident Register and the EVR. Article 5.2.1 of the Protocol stipulates the following with regard to inclusion in the EVR:
“The Participant must include the Referral Data of (legal) persons that meet the criteria stated below under a and b and subject to the proportionality principle referred to under c in the External Referral Register.
a. a) The conduct(s) of the (legal) person constituted, constitutes or may constitute a threat to (I) the (financial) interests of clients and/or employees of a Financial Institution, as well as the (Organization of the) Financial Institution(s) itself or (II) the continuity and/or integrity of the financial sector.
b) It is sufficiently established that the (legal) person in question is involved in the conduct(s) referred to under a. This determination means that criminal offenses are in principle reported or complaints made to an investigating officer.
c) The principle of proportionality is observed. This means that Security Affairs determines that the interest of inclusion in the External Reference Register prevails over the possible adverse consequences for the Data Subject as a result of the inclusion of his Personal Data in the External Reference Register.”
4.19.
Finally, the subdistrict court takes the starting point that the requirement imposed on the registration that 'it must be sufficiently established' that insurance fraud has been committed, entails that there must be such concrete facts and circumstances that they qualify as a criminal offense. within the meaning of Article 350 of the Code of Criminal Procedure (CPS) and that the established conduct must give rise to a heavier suspicion than a reasonable suspicion of guilt (see Supreme Court of 29 May 2009, ECLI:NL:HR:2009:BH4720 ).
4.20.
In the present situation, it has already been ruled that insurance fraud has been committed by [claimant01] et al. This means that there is a more serious suspicion than a reasonable suspicion of guilt, as stated above. The subdistrict court is of the opinion that the conduct of [claimant01] c.s. can lead to prejudice and threats to the interests of the financial sector, so that Univé Schade has a legitimate interest in having the data of [claimant01] c.s. entered in the Incident Register and also to be included in the EVR. The conditions of sub a and b of article 5.2.1. of the Protocol has been met. It should be noted that during the oral hearing, Univé Schade, when asked, provided sufficient substantiation that the words 'in principle' imply that it does not have to file a report in any case, as is the case in the present situation. It follows from the letter of 28 October 2019 (see ground 2.14) that it has been established that the principle of proportionality has been observed, so that sub c of Article 5.2.1. of the Protocol has been met. In the opinion of the subdistrict court, [claimant01] et al. have not put forward any concrete facts and circumstances from which it follows that in their specific situation the consequences of the registration and the duration thereof, weighed against the legitimate interest of Univé Schade and other institutions in a four-year registration in the Incident Register and the EVR, is not proportional.
4.21.
In view of the foregoing, the claim to remove the registrations and to issue a written statement thereof is rejected.
the CVB of the Association of Insurers
4.22.
The Subdistrict Court is of the opinion that what has been stated above in legal ground. 4.20 has been considered, also applies with regard to the notification to the CVB of the Association of Insurers. The claim to undo the notification to the CVB of the Association of Insurers and a written statement thereof is therefore also rejected.
litigation costs
with regard to Univé Schade
4.23.
[plaintiff01] c.s. is proved wrong and must therefore pay the costs of the proceedings. To date, the subdistrict court has set these costs on the part of Univé Schade at € 373 in salary for the authorized representative (two points × € 746 rate). The co-claimed statutory interest will be awarded as stated below.
4.24.
[claimant01] c.s. must also pay an amount of € 124.00 for costs incurred by Univé Schade after this judgment. An additional amount may be added to this for the service of the judgment. No separate decision needs to be made on this in this judgment (ECLI:NL:HR:2022:853). The legal interest is allocated.
with regard to Univé Rechtshulp
4.25.
[plaintiff01] c.s. is proved wrong and must therefore pay the costs of the proceedings. The subdistrict court has set these costs on the part of Univé Rechtshulp to date at € 373 in salary for the authorized representative (two points × € 746 rate).
stock practicability
4.26.
This judgment is declared provisionally enforceable with regard to Univé Schade, as claimed.
5 . The decision
The subdistrict court:
with regard to Univé Schade
5.1.
rejects the claims;
5.2.
orders [plaintiff01] c.s. to pay the costs of the proceedings, on the part of Univé Schade set to date at € 746,- with the statutory interest as referred to in Article 6:119 of the Dutch Civil Code on that amount from the fifteenth day after today until the day of full payment ;
5.3.
declares this judgment provisionally enforceable with regard to the order for costs;
with regard to Univé Rechtshulp
5.4.
rejects the claims;
5.5.
orders [plaintiff01] c.s. to pay the costs of the proceedings, set at € 746 on the part of Univé Rechtshulp until today.
This judgment was rendered by mr. B.J.R. van Tongeren and pronounced in public.
[46009]
