GHARL - 21/00910
|GHARL - 21/00910|
|Court:||Gerechtshof Arnhem-Leeuwarden (Netherlands)|
|Relevant Law:||Article 6(1)(c) GDPR|
Artikel 8:29 Awb
Artikel 8:42 Awb
|National Case Number/Name:||21/00910|
|European Case Law Identifier:||ECLI:NL:GHARL:2022:6391|
|Appeal from:||Rb. Gelderland (Netherlands)|
AWB - 19 _ 7130
|Original Source:||Rechtspraak.nl (in Dutch)|
|Initial Contributor:||Giel Ritzen|
The Court of Appeal of Arnhem-Leeuwarden held that the submission of an overview containing third parties’ personal data during court proceedings was not in violation of the GDPR, as the controller had to do so under Article 6(1)(c) GDPR.
English Summary[edit | edit source]
Facts[edit | edit source]
The controller (an inspector of the Tax Administration Arnhem) imposed an additional turnover tax assessment of €25,269 on the data subject. After objecting to this decision by the controller, the data subject brought the case before the Court of Gelderland, which partially upheld his claims. The data subject then appealed the Court’s decision.
During the appeal, the controller submitted two overviews of the data subject's trading stock: one which contained personal data (such as registration numbers of the cars, tax numbers of buyers, names of buyers, etc.), and one where the personal data had been redacted. The controller invoked confidentiality as referred to in Article 8:29 Awb to protect the data of third parties, and only wanted the anonymized version to be used in his defense. He argued that the submission of the overview including the personal data was in violation of the data minimization principle.
The data subject argued that the overview including the personal data had to be submitted, as the anonymised overview would be a disadvantage to his procedural position.
Holding[edit | edit source]
First, the Court of Appeal considered that the overview contained personal data, and that its submission to the Court had to be understood as ‘processing’ within the meaning of Article 4(2)(c) GDPR. It further noted that the controller had a legal obligation to provide the Court with documents ‘relating to the case’ pursuant to Article 8:42 Awb.
The Court found that the overview did relate to the case, and held that the submission of the overview including personal data was not in violation of the data minimization principle (Article 5(1)(c) GDPR), since the processing was based on a legal obligation pursuant to Article 6(1)(c) GDPR.
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English Machine Translation of the Decision[edit | edit source]
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 number BK-ARN 21/00910 ruling date: July 19, 2022 Decision of the Fourth Multiple Tax Chamber (Confidentiality Chamber) on the basis of Article 8:29 of the General Administrative Law Act (hereinafter: Awb) of the inspector of the Tax Authorities / Arnhem Office (hereinafter: the Inspector) in the dispute between the Inspector and [interested party] in [place of residence] (hereinafter: interested party) against the judgment of the Gelderland District Court (hereinafter: the District Court) of 28 June 2021, number AWB 19/7130. 1 Origin and course of the proceedings 1.1 An additional assessment for turnover tax of €25,269 was imposed on the interested party for the period 1 January 2015 – 31 December 2016. A fine was also imposed by decision and tax interest was charged by decision. 1.2 In a single document, the Inspector upheld the additional assessment and reduced the fine and the tax interest. 1.3 The appeal lodged against the judgments on the objection by the interested party was declared well-founded by the District Court in a decision of 28 June 2021 insofar as it was directed against the fine and declared unfounded for the rest. 1.4 The claimant has appealed against the decision of the Court of Appeal. The Inspector has filed a statement of defence. 1.5 In his defense on appeal, the Inspector has added an anonymized printout of HSB (holding tax) regarding the trading stock of the interested party, in respect of which the Inspector has stated that he invokes confidentiality as referred to in Article 8:29. of the AWB. The Inspector explained the appeal in more detail in his letter of 31 December 2021. 1.6 The representative of the interested party responded to the Inspector's appeal in a letter dated 30 January 2022. 1.7 The Inspector's appeal was heard at the hearing on 3 May 2022. There, Mr. A.P. Flinterman appeared and heard as the representative of the interested party and on behalf of the Inspector [name1] and [name2]. 1.8 A record of the hearing has been drawn up, which is attached to this decision. 2 Established Facts 2.1 The interested party runs a business under the name [name3] in the form of a sole proprietorship. The company's activities include renting out (classic) cars, emergency and service vehicles, motorcycles, props and clothing to film and television producers. The last rental activities took place in 2013. 2.2 An audit was carried out in 2017/2018. The report of the due diligence of 20 December 2018 states, among other things: “4.1 Revenue No turnover is stated in the annual accounts for the years 2015 and 2016. No turnover has been recorded in the accounts. No documents were found in the records made available for inspection that indicate the sale of business assets. A query HSB stock overview shows that 33 and 23 vehicles were sold in the years 2015 and 2016 respectively. At the written request to submit copies of invoices/receipts of these sales, only an overview was received with a few vehicles that would have been transferred in 2015 for free and vehicles that would have been sold in 2016 for a total of € 9,750 in cash. Third-party investigations show that these vehicles have been sold for considerably higher prices. Third-Party Investigations In order to determine in more detail whether not all sales have been justified, third-party investigations were initiated at two companies that, according to the HSB inventory overview, were the new owners of a number of vehicles. (…)” 2.3 Based on third-party investigations and an estimate of the revenues, the Inspector has determined the turnover for 2015 based on 33 cars sold at € 61,000 and the turnover for 2016 based on 23 cars sold at € 82,500. Of these 56 cars sold in total, the Inspector always stated the relevant registration number. The buyer of 31 cars is also stated. 2.4 In the aforementioned report of the due diligence, the turnover tax to be levied is calculated as follows: “6.4 Calculation of sales tax due The turnover tax due is calculated as follows on the basis of the determined revenues (see section 4.2 Calculating revenues): 2015 OB Total compensation € 61,000 Reimbursement with OB on invoice € 10,000 € 2,100 Other compensation € 51,000 21/121 x €51,000 = €8,851 Total owed € 10,951 2016 Total compensation € 82,500 21/121 x €82,500 = €14,318 Correction 1 2015: € 10,951 more sales tax due Correction 2 2016: € 14,318 more turnover tax due 2.5 The Court considered it plausible that the interested party did not file the required declaration for each period in dispute. The appeal lodged by the interested party was declared well-founded by the District Court in a decision of 28 June 2021 insofar as it is directed against the fine and declared unfounded in all other respects. The Court subsequently reduced the fine. 2.6 On appeal, the Inspector submitted an appendix (Appendix 1) “Query hsb stock overview” of the interested party's trading stock. This overview contains a large number of data on approximately 110 cars, including the 56 cars referred to in 2.3. The following information is given for these cars: RDW registration number, license plate and a number of current vehicle data. It also states per car the tax number of the person from whom the car was purchased by the interested party and the capacity of the person from whom the purchase was made (natural person, company, legal entity), stating the relevant RDW registration number (if any). In addition, the tax number of the person to whom the car has been sold by the interested party is also stated per car and the capacity of the person to whom it has been sold (natural person, company, legal entity), stating the relevant RDW registration number (if any). 2.7 The Inspector has invoked secrecy as referred to in Article 8:29 of the Awb with regard to Annex 1 referred to. In that regard, he submitted two versions of Annex 1: one uncleaned version and one cleaned version, in which: - the information stated under the column “purchased from” with regard to the supplier's tax number and RDW registration number has been made illegible, and - the data stated under the column “sold to” with regard to the customer's tax number and RDW registration number have been made illegible in a number of cases. The Inspector only wishes to submit the cleaned version as a dispute document. 2.8 In a letter dated 30 January 2022, the representative of the interested party responded to the Inspector's appeal and indicated that he did not agree to the contribution of only the cleaned-up version of Annex 1. 3 Considerations 3.1 The right to a fair trial is enshrined, inter alia, in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 47 of the Charter of Fundamental Rights of the European Union. Apart from these treaty provisions, this right also applies in national law and includes, among other things, the right to equal opportunities to litigate. It follows from this that parties in a procedure are in principle entitled to inspect all documents in the file. This does not alter the fact that exceptions to this right are possible. The first paragraph of Article 8:29 of the Awb contains a limitation of the right to equal legal opportunities. (cf. ABRvS, judgment of 10 June 2020, ECLI:NL:RVS:2020:1367). 3.2 In view of Article 8:29(3) of the Awb, the court decides whether a refusal to submit a document (uncleaned) is justified. This decision requires a balancing of interests. On the one hand, it is important that the parties have equal access to the information relevant to the (appeal) appeal. On the other hand, the knowledge by parties of certain data can disproportionately harm the public interest, the interest of one or more parties and/or the interest of third parties. In the assessment of an appeal to secrecy, the significance of the document for the judgment of the judge in the main action and the procedural position of the parties play an important role. It is also important in this regard whether the party from whom knowledge of a document is withheld is substantially hindered by the secrecy of its proceedings (cf. ABRvS, decision of 21 December 2018, ECLI:NL:RVS:2018:4318). 3.3 On the basis of Article 8:29, first paragraph, Awb, the inspector may, if there are serious reasons for doing so, refuse to submit documents, or parts thereof, or only bring them to the attention of the court. The Court of Appeal states first and foremost that the greatest possible restraint must be exercised in the application of this paragraph. Only if the reasons put forward by the Inspector for secrecy or limited access significantly outweigh the interest of the interested party in unlimited access to (parts of) the documents relating to the case, there are serious reasons that justify secrecy or limited access. 3.4 In his letter of 31 December 2021, the Inspector motivated his request as follows. “Bought from” columns Pursuant to Article 67 of the AWR, I have an obligation of fiscal secrecy. Pursuant to Article 67, paragraph 1 of the AWR, I am prohibited from disclosing the affairs of another person beyond what is necessary. In my opinion, the tax numbers of private individuals and sole proprietorships and the RDW registration numbers fall under those matters. This is all the more so now that it concerns 'personal data', referred to in Article 4, paragraph 1 of Regulation 2016/679 (hereinafter: AVG). The natural person in question can be identified directly or indirectly on the basis of this data. Given the lack of interest in this proceeding, I anonymized these columns in their entirety without further investigation. In view of the lack of interest in this case, I believe that the interests of the third parties outweigh the interest of the interested party in non-anonymous access to the document. 'sold to' columns Pursuant to Article 67 of the AWR, I have an obligation of fiscal secrecy. Pursuant to Article 67, paragraph 1 of the AWR, I am prohibited from disclosing the affairs of another person beyond what is necessary. In my opinion, the tax numbers of private individuals and sole proprietorships and the RDW registration numbers fall under those matters. This is all the more so now that it concerns "personal data", referred to in Article 4, paragraph 1 of the GDPR. Based on the non-anonymised data, the natural person in question could be identified directly or indirectly. If I were to provide this non-anonymised, this would, in my opinion, be in conflict with Article 67(1) AWR and the GDPR principle of minimal data processing, since the data of those anonymized third parties are in principle not relevant to the present proceedings in that sense. that my position (taken in paragraph 7.1.1 of the defence) is already substantiated by providing the anonymized parts. I also believe that the legal interests of the other party are not harmed by partially anonymizing the RSINs but leaving the last three digits visible. After all, the statements that I have included in my defense are verifiable. Insofar as RSINs already appear from the earlier procedure or appendices to those procedures, I have not made them anonymous. In view of the foregoing, I believe that the interests of the third parties outweigh the interest of the interested party in non-anonymized cognizance of the document.” 3.5 The Interested Party opposes the Inspector's request because this means that the Interested Party is unable to defend itself sufficiently against the Inspector's corrections and decision to impose a fine, thereby damaging its procedural position. The list submitted by the Inspector only indicates the holder of the vehicles, but not which underlying contractual agreements have been made with those parties, according to the interested party. A number of vehicles may have been sold on consignment. A later sale with payment of the proceeds affects the VAT position of the interested party because in those cases it has only received a commission charged with VAT, but not the entire proceeds. There are serious interests in making the list public in these proceedings because the interested party can then demonstrate and prove that and which passenger cars are involved on consignment and of which the full proceeds have therefore been incorrectly included in the additional tax assessment. The interested party may then also be able to find out the purchase price of the cars. At the hearing of the secrecy chamber, the interested party added in that regard that it often concerns purchases that were made a large number of years ago, in some cases more than ten years, and as a result it needs the now anonymized data to concerning purchases and thus also the purchase price. The interested party therefore has the option of demonstrating consignment agreements by means of witness evidence. 3.6 In order to justify his appeal to secrecy for both the anonymized data under the column 'purchased from' and that of the column 'sold to', the Inspector invoked, among other things, his duty of confidentiality as follows from Article 67, first paragraph, of the AWR as on the provisions of the GDPR. 3.7 Article 67 AWR reads, in so far as relevant here: 1. It is prohibited for anyone to disclose anything further than is necessary for the implementation of the tax law or for the collection of any government tax as referred to in the Collection Act 1990 (duty of confidentiality). 2. The duty of confidentiality does not apply if: a. any legal requirement to disclose; b. (...) c. (…) 3.8 On the basis of what has been established under 2.2 and 2.3, in the opinion of the Confidentiality Chamber, the "hsb inventory overview query" can be regarded as "a document relating to the case" as referred to in Article 8:42 of the Awb. Pursuant to Article 8:42 of the Awb, the Inspector is obliged to submit this document. Article 8:42 of the Awb is a statutory provision as referred to in Article 67, first paragraph, of the AWR, so that the Inspector cannot successfully invoke the confidentiality obligation of Article 67, first paragraph to justify his reliance on limited access. , of the AWR. 3.9 The Inspector also invokes Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter: the General Data Protection Regulation, AVG). 3.10 As considered above under 3.8, the Inspector is obliged under Article 8:42 of the Awb to send the documents relating to the case to the court. Submitting the documents can be regarded as providing data by means of forwarding or otherwise making available data as referred to in Article 4, opening words and under 2 of the GDPR, and thus as processing within the meaning of the GDPR. Because submission is a legal obligation, this form of processing is therefore also necessary within the meaning of Article 6, first paragraph, preamble and under c, of the GDPR and the condition as included in the third paragraph of said article is met. This means that there is no serious reason in the GDPR for limiting access to the aforementioned personal data. 3.11 The fact that there is no conflict with the duty of confidentiality or the GDPR does not mean that there cannot be serious reasons within the meaning of Article 8:29 of the Awb. Article 8:29 of the Awb requires a personal assessment of the interests. The Court is of the opinion that the circumstance that it is not inconceivable that the burden of proof has also been reversed and increased on appeal, that an offense fine has been imposed on the interested party and the explanation provided by the interested party regarding the interest in full cognizance of the data with with regard to the cars included in the query, viewed together, mean that the interest of the interested party in the disclosure of those data must outweigh the interest of third parties in non-disclosure. However, this only applies to the purchase and sale of the 56 cars involved in the additional assessment. It can be assumed in advance of the data of the cars not included in the tax included in the query that there is no essential interest in the interested party's information. 3.12 The Court of Appeal concluded that the secrecy defended by the Inspector of taking cognizance of Appendix 1 is not justified insofar as this secrecy relates to the data belonging to the 56 cars involved in the additional assessment. 3.13 The Court will give the Inspector the opportunity to communicate the consequences he attaches to this decision. 4 Decision The court: – determines that the secrecy defended by the Inspector of annex 1 of the statement of defense on appeal is not justified, insofar as this secrecy relates to the data belonging to the 56 cars involved in the additional assessment, – gives the Inspector the opportunity to inform the Court of the consequences he attaches to this decision within two weeks of the date of this decision. This decision was made by mr. M.G.J.M. van Kempen, chairman, and mr. R. den Ouden and mr. V.F.R. Woeltjes, in the presence of mr. P.W.L. van den Bersselaar as clerk. The decision was pronounced in public on: 19 July 2022 The Registrar is prevented from making this ruling. The Chairman, to sign (P.W.L. van den Bersselaar) (M.G.J.M. van Kempen) Copies are sent by registered mail on Both parties can lodge an appeal in cassation against this decision with the Supreme Court of the Netherlands within six weeks of the date on which it was sent, via the web portal of the Supreme Court www.hogeraad.nl. Certain persons who are not represented by an authorized representative who provides professional legal aid may lodge an appeal in cassation by post. These are natural persons and associations whose statutes are not included in a notarial deed. If they do not want to use digital litigation, these persons can send the appeal in cassation to the Supreme Court of the Netherlands (tax chamber), PO Box 20303, 2500 EH The Hague. All other persons and authorized representatives who provide professional legal assistance are in principle obliged to litigate digitally (see www.hogeraad.nl). The following must be taken into account when lodging an appeal in cassation: 1. a copy of this decision is attached to the notice of appeal; 2 - (only when litigating on paper) the notice of appeal must be signed; 3 - the notice of appeal must state at least the following: a. the name and address of the applicant; b. the date; c. a description of the decision against which the appeal in cassation is directed; d. the grounds of the appeal in cassation. A court fee is payable for lodging an appeal in cassation. After the appeal in cassation has been lodged, the applicant will receive a court registry fee note from the clerk of the Supreme Court. In the appeal in cassation, the Supreme Court may be requested to order the other party to pay the costs of the proceedings.