GHARL - 200.307.830
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| GHARL - 200.307.830 | |
|---|---|
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| Court: | Gerechtshof Arnhem-Leeuwarden (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 7:671b(1)(a) BW Artikel 7:669(3)(e) BW |
| Decided: | 05.07.2022 |
| Published: | 20.07.2022 |
| Parties: | ING |
| National Case Number/Name: | 200.307.830 |
| European Case Law Identifier: | ECLI:NL:GHARL:2022:6203 |
| Appeal from: | Rb. Midden-Nederland (Netherlands) 9485684 UE VERZ 21-281 |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | Giel Ritzen |
The Court of Appeal Arnhem-Leeuwarden decided that the controller, who requested the dissolvement of the employment contract of the data subject, can provide more evidence to prove that the monitoring of the emails of the data subject was proportionate, and the data subject can provide more evidence to prove that this was a so-called "fishing expedition".
English Summary
Facts
The controller is ING, a Dutch bank, and the data subject is one of its former employees. The controller had received signals of fraud: an anonymous report which stated that the data subject was involved in money laundering, skimming money of supermarkets he co-owned, and mortgage fraud. The controller conducted internal investigations and it became clear that the controller had already been ordered (in 2018 and 2019) by the public prosecutor to provide information on the data subject during a criminal investigation. This led the controller to monitor the email use of the employee, after which it became clear that the data subject had structurally used his work-equipment for private purposes.
The controller requested the Subdistrict Court to dissolve the employment agreement on grounds of the culpable acts or omissions of the data subject. The Court, however, dismissed the request because it was unclear whether the controller had respected the conditions set by the ECHR in Bărbulescu when monitoring the email use. The Court held that, according to these requirements, the following questions must be asked:
1. Was the employee informed in advance of (the nature of) the possible monitoring of correspondence and other communications by the employer? 2. What is the scope of the monitoring and how serious is the breach of the employee’s privacy (or: proportionality)? 3. Does the employer have legitimate grounds to justify the monitoring applied? 4. Would monitoring have been possible with less intrusive methods and measures? 5. What consequences did the monitoring have for the worker? 6. Have adequate safeguards been provided to the worker, especially in the case of intrusive monitoring?
The Court stated that it was unable to assess whether (1) ING had a justification for monitoring the business emails, and (2) whether the monitoring was legitimate and proportionate.
The controller then appealed to the Subdistrict Court’s decision.
Holding
First, the Court of Appeal noted that the Subdistrict Court incorrectly referred to the guidelines listed in Bărbulescu as negative conditions. According to the Court (of Appeal), these factors must jointly be considered by the judge and do not all have to be fulfilled in order to constitute a violation of the right to privacy. Second, the Court considered that it was clear that the data subject was not informed of the monitoring, but also stipulated that it is also important to ask whether the data subject could have reasonably expected the monitoring, and the extend of it.
Third, the controller claimed that their legitimate interest for the monitoring was the prevention of fraud. According to the Court, however, it could not judge whether the monitoring was also proportionate since it was unclear on what “signals” the suspicion of fraud was based. Hence, it invited the controller to provide additional evidence which shows why there was a “reasonable suspicion”. In this regard, the Court stipulated that the results of the criminal investigations into the data subject and the proceedings before the disciplinary committee for the banks.
Lastly, the Court also invited the data subject to provide evidence to support his claim that the controller had undertaken a “fishing expedition”, and thus that the controller had conducted the monitoring without sufficient cause of reason.
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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 ARNHEM-LEEUWARDEN location Arnhem civil law department, trade case number court of appeal 200.307.830 (case number Central Netherlands court, location Utrecht, 9485684) decision of 5 July 2022 in the case of the private company with limited liability ING Bank Personnel B.V., Based in Amsterdam, the applicant on appeal, at first instance: applicant, defendant in the conditional counter-application hereinafter: ING, lawyer: mr. S. Wehl, against [defendant] , residing at [residence1] , defendant on appeal, at first instance: defendant, applicant in the conditional counter-application hereinafter: [defendant] , lawyer: mr. H. Giard. 1 The proceedings at first instance For the proceedings in the first instance, the Court of Appeal refers to the decision of 16 December 2021 of the Subdistrict Court in the Central Netherlands District Court, Utrecht location. 2 The appeal proceedings 2.1 The course of the procedure is as follows: - the notice of appeal from ING dated 10 March 2022 with exhibits, received at the registry on March 11, 2022; - the statement of defense with exhibits of 26 April 2022; - the letter from ING dated May 3, 2022, with exhibits 32 and 33, received at the registry on May 6, 2022; - the deed clarification/explanation and increase of claim of May 17, 2022 of [defendant], received on May 18, 2022; - the oral hearing held on 1 June 2022, at which both parties submitted written pleadings and of which an official report was drawn up. 2.2 After the oral hearing, the court ruled on September 1, 2022 or as soon as possible. 2.3 In its appeal, ING requested that the decision of the sub-district court be annulled and that the employment contract with [defendant] be terminated as soon as possible and that the employment contract with [defendant] be terminated as soon as possible and that he be ordered to pay the costs of both authorities. . 2.4 In a defense of appeal of 26 April 2022, [defendant] requested that ING's appeal be dismissed, that the contested decision be affirmed and that ING be ordered to pay the costs of the proceedings. 2.5 [respondent] has requested clarification/explanation and increase of claim of 17 May 2022 by deed of 17 May 2022 to increase the amount of fair compensation to an amount of 8 years x € 94,391 gross = € 755,128 gross (exhibit 23) and to determine the immaterial compensation on an amount of € 100,000. 3 The facts On appeal, the facts established by the subdistrict court under 2 of the contested decision have been established, since no grievances or objections have been raised against them. 4 The request to the subdistrict court and its assessment 4.1 ING has requested the Subdistrict Court on the basis of the provisions of Article 7:671 b paragraph 1 under a and Article 7:669 paragraph 3 under e (culpable act or omission), g (disrupted employment relationship) or i (the ground for combination) of the Civil Code Code (BW) to dissolve the employment contract of the parties, with the [defendant] being ordered to pay the costs of the proceedings. She requested that the four-month notice period be disregarded when determining the end date and that the employment contract be immediately dissolved since the dissolution was the result of seriously culpable acts or omissions on the part of [defendant]. 4.2 [Defendant] pleaded rejection of the request. [Defendant] in turn, in the event that the employment contract were to be dissolved, alternatively requested the Subdistrict Court to: I. granting of a transition payment of € 65,161.24 gross (in the event of a dissolution on the e-ground or the g-ground) or € 97,741.86 gross (in the event of a dissolution on the i-ground); II. award of fair compensation of € 450,000 or an amount to be determined by the subdistrict court; III. to take into account the notice period applicable to him when determining the end date, without deduction of the period between the receipt of the application and the date of the decision, or a date to be determined by the subdistrict court; [Defendant] has furthermore requested both primarily and in the alternative that ING be ordered to pay him the statutory interest from the time when the aforementioned payments become due and payable until the date of payment in full and to order ING to pay the legal costs. 4.3 In the contested decision, the Subdistrict Court rejected ING's request, ordering it to pay the costs of the proceedings. 5 The assessment on appeal 5.1 The case is about the following. After indications of fraud, internal investigation and monitoring of the e-mail use of employee/mortgage adviser [defendant], ING has requested the termination of the employment contract with [defendant] because - in short - he allegedly engaged in long-term unreported secondary activities. and structurally using his work e-mail and laptop for private purposes, among other things. 5.2 The subdistrict court rejected this request because it is unclear whether ING has complied with the conditions set by the European Court of Human Rights (ECtHR) in the Bărbulescu case when monitoring the e-mail use of [defendant] (see below 5.6). has stated. In summary, the Subdistrict Court considered that it cannot therefore be established whether ING had a justification for monitoring the business e-mails of [defendant] and that it furthermore cannot be established whether this monitoring is legitimate and proportionate. The subdistrict court judge was of the opinion that the assessment of the application for dissolution is therefore not properly possible and rejected it. 5.3 With the objections formulated by ING in appeal, referred to as grievances, the Court understands that the case will be submitted to the Court of Appeal in its entirety for assessment. The e-ground 5.4 The Court of Appeal sees reason to first assess ING's most far-reaching accusation against [defendant], namely that there is culpable conduct on his part that should lead to the termination of the employment contract (the so-called e-ground). If necessary, the other grounds put forward on which the request for dissolution is based and on which the subdistrict court has not made a concrete statement will be discussed at a later stage. 5.5 ING has launched an investigation into the conduct and activities of [defendant]. The reason for this investigation, she argued, was an anonymous report in April 2021 about [defendant] involvement in money laundering, skimming of money at supermarkets of which [defendant] is co-owned and mortgage fraud. In April 2021, as a result of this report, ING's Corporate Security & Investigations department (hereinafter: CSI) checked with ING whether [defendant] was listed in the ING Incident Register. That turned out to be the case. The Public Prosecution Service (OM) and an unnamed government agency previously issued an order to ING, already in 2018 and 2019, to provide information about [defendant]. These orders were subject to a duty of confidentiality and ING was not allowed to disclose from whom it had received signals that [defendant] might have been involved in criminal offences. The aforementioned government agency, unlike the Public Prosecution Service, still adheres to anonymity. Normally, such claims regarding ING employees should be forwarded to CSI for further investigation. That had not happened in this case, which should have happened, according to ING. In view of the content of the anonymous report and the orders to provide information, there was reason to view, among other things, the business e-mail account that had been made available to [defendant] for the performance of his duties. The investigation of the business e-mails revealed that [defendant] performed various unreported side activities for a long time; also during working hours. [Defendant] turned out to have several (business) premises that he rented out. Nor had [defendant] reported that he was a partner in two Polish supermarkets Malinka Noordwijkerhout and Malinka Amersfoort and that he was involved in an English and a German company. In addition, this involves long-term and structurally unrelated use of the ING e-mail address made available to him by ING, his ING signature, the ING laptop and the ING logo, according to ING. Furthermore, it became clear from the investigation that [defendant] was actively involved in a mortgage application from Mrs. [name1], the partner of his partner in the aforementioned supermarkets and also a good friend. [Defendant] also consulted the data of ING customers several times without a business reason via the ING consultation systems. In addition, [defendant's] performance over 2018 and 2020 was assessed as insufficient, according to ING. 5.6 For the answer to the question whether the employer has free access to the employee's e-mail box, the court, together with [defendant] and the subdistrict court, seeks, in addition to the law and AVG, to join the case law, in particular the decision of the ECtHR of 5 September 2017 in the Bărbulescu case (ECLI:CE:ECHR:2017:0905JUD006149608). The ECtHR answered this question on the basis of the following guidelines, which are also cited by the subdistrict court (see paragraph 4.12 of the contested decision): i. Has the employee been informed in advance about (the nature of) the possible monitoring of correspondence and other communications by the employer? ii. What is the scope of the monitoring and how serious is the infringement of the employee's privacy (in other words: proportionality)? iii. Does the employer have legitimate grounds to justify the monitoring applied? iv. Would monitoring have been possible with less intrusive methods and measures? v. What impact has the monitoring had on the employee? vi. Have adequate safeguards been provided to the employee, especially in the case of intrusive forms of monitoring? 5.7 The Court of Appeal first states that, where the Subdistrict Court refers to the guidelines from the Bărbulescu judgment as 'conditions', which apparently implies that all guidelines must be met one-on-one, this does not involve conditions, but relevant factors that play a role in the assessment. After all, the ECtHR introduces the guidelines with the sentence: 'In this context, the domestic authorities should treat the following factors as relevant' (Bărbulescu judgment, paragraph 121). They are therefore factors that are all important, but in which not one single factor – if this is not or not fully met – can be decisive in a negative sense. The factors must be viewed in conjunction with each other, similar to how the so-called Spijkers criteria are weighted in business transfer cases: relevant factors may not be assessed separately and the weight given to the various factors to be weighed depends on the circumstances of the case (ECJ EC 18 March 1986 (Spijkers), NJ 1987/502), or the points of view that play a role in breaking the 20-year limitation period in asbestos cases (HR 28 April 2000, ECLI:NL:HR :2000:AA5635 (Van Hese/De Schelde, NJ 2000/430). In any case, the judge is expected to weigh the factors/guidelines mentioned. The judge must be given the opportunity to do so. 5.8 In the opinion of the Court of Appeal it is established that the employee was not informed in advance about (the nature of) the possible monitoring of correspondence and other communication by the employer (guideline under i). The principles of proportionality and subsidiarity are interwoven in the guidelines. An important point of view arises from guideline i in particular, also in the context of the GDPR (legitimate interest of the controller): what was the reasonable expectation of privacy of [defendant] as an employee? Should he or could he have known that and in which situations monitoring could take place and what that monitoring could entail? 5.9 ING argued that it had a legitimate interest in viewing [defendant]'s business e-mails, namely to prevent/combat fraud, money laundering and money skimming. Preventing illegal practices is a legitimate reason for ING to monitor the signals of criminal offenses affecting the financial sector. ING has an important gatekeeper function in the fight against all forms and types of financial and economic crime. The legislator has also emphatically assigned this task to institutions such as ING, according to ING. 5.10 As the Subdistrict Court has considered (legal consideration 4.13 of the contested decision), without knowledge of the nature of the aforementioned signals - and thus of a concrete legitimate ground to justify this monitoring - it cannot be properly established whether the monitoring meets the requirements of proportionality. has fulfilled. Nor can it be established whether the accusations made by ING [defendant] and which it based on the request for dissolution are directly related to these signals or whether there is "by-catch". For the assessment of grounds 1 and 2 of ING, which are directed against this legal consideration in the contested decision, it is therefore required that the Court of Appeal be provided with clarity. Evidence (1) 5.11 This entails that, in accordance with its offer, ING will be admitted to the proof of its assertions, in particular that there was sufficient reason to examine the e-mails of [defendant], and that there was therefore a 'reasonable suspicion' '; the Court of Appeal is considering in any case the hearing of Messrs. [name2], [position1] ING Bank NV, and [name3], [position2] ING Bank NV, who have drawn up the CSI memo. If necessary, it may also be discussed whether ING (rightly) invokes its duty of confidentiality. In the supply of evidence or the pleadings after an inquiry, it may also be discussed whether and, if so, what the results are of the criminal complaint against [defendant] and the procedure before the disciplinary committee for the banks. At the time of the oral procedure, the outcome was in any event not yet known. 5.12 Now that ING has acknowledged that this is an internally prepared report, the Court of Appeal will determine on the basis of the provisions of Article 22 DCCP that ING must still submit this report in the manner to be determined. Transition fee 5.13 The results of this provision of evidence may also be important for the answer to the question whether - in the event that the request for dissolution should still be successful - there is serious culpable conduct on the part of [defendant], which should give rise to the not to grant transition payment, as ING has argued and [defendant] has disputed. Fair compensation 5.14 In the first instance, [defendant] claimed fair compensation of €450,000 gross because ING acted seriously culpably. Initially, [defendant] argued that ING had [defendant] included in the Incident Register and the External Referral Register and that he was unable to practice his profession for a maximum of 8 years, reported mortgage fraud to ING and, in anticipation of the investigation of the police and/or further careful investigation (including hearing all involved persons) and submits this petition and wishes to terminate the employment contract. The honor, integrity and good name of [defendant] has been affected, according to [defendant]. 5.15 In its defense of 26 April 2022, the Court of Appeal understands that [defendant] has upheld this request on appeal (see statement of defense under 45). [Defendant] has thereby concluded to dismiss ING's appeal, to confirm the contested decision and to order ING to pay the costs of the proceedings. However, in doing so, he apparently did not relinquish the original claims in the event that the employment contract were to be dissolved after all, so that they (can) still be raised on appeal. Increase requirement 5.16 In a deed dated May 17, 2022, [respondent] requested that the amount of fair compensation be increased. However, in the opinion of the Court of Appeal, this amendment of the request is contrary to the so-called two-claim rule. The starting point of this rule, which is strict in principle, is that a party on appeal in its first procedural document, if desired, changes the claim/application or defence, in particular in the event of an increase in the request, as is the case here. In his first procedural document, the statement of defense on appeal, [defendant] did not change the request. He only did that later by deed. This in principle strict rule therefore stands in the way of acceptance of this increase in demand. 5.17 The fact that one of the exceptions to the two conclusion rule accepted in case law applies here has not been argued or shown, so that the Court of Appeal finds this increase in claim inadmissible. That [defendant] only recently became aware of the proceedings before the disciplinary court for the banks and only recently asked his lawyer to assist him in those proceedings as well (exhibit 21), as was argued at the time of the oral hearing [defendant] is of no avail. After all, ING has stated without being contradicted in response that it has already been stated in the proceedings in first instance (exhibit 16 to the initiating application, letter ING to [defendant] dated 21 September 2021, penultimate page, last paragraph) that ING will report to the Bank Disciplinary Law Foundation, which actually happened on October 15, 2021. [Defendant] therefore had to take into account a disciplinary procedure. There is therefore no question of a new circumstance in the appeal. Continued fair compensation 5.18 The foregoing does not affect the fact that a party is permitted to elaborate an earlier position at a later date. [defendant] argued in the deed that the claim to fair compensation is based on the circumstances, including the unlawfully obtained evidence, the CSI investigation, the premature conclusions drawn by ING, the stagnation of his career due to lack of training and career. opportunities and making a report to the disciplinary committee of the banks without this being the case has been subject to a thorough investigation (deed under 14). 5.19 The court understands that [defendant] thus in fact states that an investigation was conducted into him without sufficient reason or ground, and by this apparently means that there was in fact a 'fishing expedition', and that the other circumstances mentioned by him were the result of this. resulted. [defendant], who claims fair compensation, will be allowed to prove his allegation, now that ING has contested this with reasons, as also follows from the foregoing. Evidence (2) 5.20 Insofar as both parties would like to hear the same witnesses about (more or less) the same set of facts, this can be opted for for practical reasons and from an efficiency point of view, in joint consultation between the parties and after the consent of the supervisory judge - despite the fact that it concerns two distinct evidence assignments - to have the interrogations of these witnesses in both evidence assignments take place simultaneously. The court leaves this to the parties. 5.21 Any further decision is reserved. 6 The decision The court, deciding on appeal: allows ING to provide evidence of facts and circumstances showing that there was sufficient reason to investigate the e-mails from [defendant], and that there was therefore a 'reasonable suspicion'; allows [defendant] to prove that an investigation was conducted into him and his business e-mail use without sufficient reason or grounds; provides that, if (one of the) parties wishes to provide that evidence by means of witnesses, the hearing of these witnesses will take place before the member of the court, mr. M.F.J.N. van Osch, who will hold a seat for that purpose at the Palace of Justice at 2-4 Walburgstraat in Arnhem, on a day and time to be determined by the latter; determines that the parties ([defendant] in person / ING represented by someone who is aware of the case and who is able to answer questions) must be present at the witness hearing so that questions can be asked to them as a result of the witness statements; survey prevented dates stipulates that the parties will state the number of witnesses to be presented as well as the days that both parties, their lawyers and the witnesses will be absent on 19 July 2022, after which the day and time of the hearing (even if the aforementioned statement of one or more of the parties is missing) will be determined by the supervisory judge; provides that, in accordance with Article 170 of the Code of Civil Procedure, the parties must provide the names and places of residence of the witnesses to the opposing party and the clerk of the court at least one week before the hearing; survey comparison also stipulates that the said hearings may also be useful for examining whether the parties can agree on one or more points; submit documents for survey determines that ING must provide the documents as referred to in para. 5.12 and that it must ensure that the court and the other party have received a copy of those documents no later than two weeks before the date of the hearing; provides that if, on the occasion of the witness examination, a party wishes to perform a procedural act or to submit exhibits, this party must ensure that the court and the other party receive a copy of the hearing at the latest two weeks before the date of the hearing. have received the procedural act to be performed or the exhibits to be disputed; reserves any further decision. This decision was made by Mrs. M.F.J.N. van Osch, M.P.C.J. van Bavel and H.M.J. van den Hurk and was pronounced in public in the presence of the registrar on July 5, 2022.
