Hof Amsterdam - 200.251.466/01

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Hof Amsterdam - 200.251.466/01

CourtsNL.png
Court: Hof Amsterdam (Netherlands)
Jurisdiction: Netherlands
Relevant Law:

Article 21 GDPR

Decided: 5. 11. 2019
Published: 19. 11. 2019
Parties: ING Bank N.V.
National Case Number: 200.251.466/01
European Case Law Identifier: ECLI:NL:GHAMS:2019:3966
Appeal from: Rb. Amsterdam (District Court of First Instance)
Language: Dutch
Original Source: de Rechtspraak (in NL)

The Amsterdam Court of Appeal rejected request for interim measures under Article 21 GDPR because the appellant failed to prove an urgent interest.

English Summary[edit | edit source]

Facts[edit | edit source]

The complainant asked his bank (ING Bank N.V.) to remove his data from the BKR registration (office for credit) under Article 21 GDPR. The bank did not answer to the request. The data subject brought a complaint before the Court of First Instance. The Court of First Instance found the complaint inadmissible and the complainant appealed the decision.

Holding[edit | edit source]

The Amsterdam Court of Appeal considered that a request under Article 21 GDPR can be made at any time and several times. It also found that a provisional measure can be granted under Article 21 GDPR if an urgent action is needed.

However, in the present case, the Court stated that the applicant did not prove the urgent interest for the interim measures. Thus, the measures could not be granted and the dedicated claim was rejected as inadmissible.

The Court found that the applicant should have submitted a new request under Article 21 GDPR.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

DECISION
COURT OF AMSTERDAM

Department of Civil and Tax Law, Team I

Case number: 200.251.466/01 KG
case number of the Amsterdam District Court: C/13/655766 / KG ZA 18-1104

judgment of the multiple civil chamber of 5 November 2019
[appellant] ,
living at [residence] ,
appellant,
Attorney at law: Mr. K.J. Zomer at Oosterhout,
by
ING Bank N.V,
based in Amsterdam, the Netherlands,
Intimate,
Attorney at law: Mr. T.J.P. Jager in Amsterdam.

1 The dispute on appeal

The parties are hereinafter referred to as [Appellant] and ING.
By writ of summons dated 10 December 2018, [Appellant] appealed against a judgment of the Court of Amsterdam in preliminary relief proceedings of 22 November 2018, given under the above-mentioned case number/rolnumber, between [Appellant] as plaintiff and ING as defendant.

The parties have subsequently submitted the following documents:
- statement of grievances, with productions;
- statement in response, with productions.

At the hearing on 10 September 2019, the parties had the case pleaded, [appellant] by the aforementioned Mr Zomer and ING by D.J. Posthuma, attorney at law in Amsterdam, each on the basis of pleading notes that had been submitted. Both parties have also brought productions into dispute.
Finally, a judgment has been requested.

[Appellant] has concluded that the Court of Appeal will set aside the contested judgment and - provisionally enforceable - grant its amended claim on appeal, with a decision on the costs of the proceedings.
ING concluded that the contested judgment should be upheld and - provisionally enforceable - the [Appellant] should be ordered to pay the costs of the appeal proceedings with additional costs.

2 The facts of the case

In the judgment under appeal the Court in preliminary relief proceedings set out under 2.1 up to and including 2.5 the facts on which it based its judgment. These facts are not in dispute on appeal. Supplemented with other facts that have emerged from undisputed or acknowledged assertions and from the investigation at the hearing, the facts amount to the following.

2.1.
On the basis of a debt with (the legal predecessor of) ING in respect of a student loan taken out on 26 February 2002, ING [appellant] registered with the Bureau Krediet Registratie (BKR). [appellant] immediately withdrew an amount of € 2,250 from this credit. It used all or part of this amount to finance its emigration to Curaçao. On 6 August 2004 [Appellant] was registered with special code A (arrears), on the same day with special code 4 (the borrower remains unreachable) and on 12 August 2004 with special code 3 (an amount of € 250 or more was written off).

2.2.
After returning to the Netherlands, [appellant] tried to open a new bank account with ING in 2009. ING summoned her by letter of 17 August 2009 to pay the outstanding balance of € 5,401.22 at that time. The [Appellant] subsequently agreed a payment arrangement with ING under which, as from 2010 (with a few exceptions), it paid €50 per month to ING or to the agencies engaged by ING for that purpose.

2.3.
By letter dated 19 February 2016, [Appellant] was asked to provide a statement of the income and expenses of itself and its partner. By e-mail of 26 February 2016, [appellant] stated, inter alia, that there is a wage attachment on her partner's income, that she herself has a debt of € 785.73 to DUO, that a wage attachment has (also) been imposed on this debt and that she will repay € 10.33 per month on this debt.

2.4.
The BKR has registered 24 March 2017 as the end date of the Student Credit with [the appellant] (this is the date on which she has repaid the debt in full). From this date, the particularity codes will, in principle, remain visible for another five years.

2.5.
By letter dated 27 June 2018, CoderingVrij ING requested, on behalf of [appellant], the removal of the BKR registration.

2.6.
In a letter dated 23 July 2018, Vesting Finance (ING's debt collection agency) responded negatively to this request.

2.7.
In connection with the intention to buy a home, [appellant] applied to SNS Bank for a mortgage loan. By e-mail dated 7 August 2018 from SNS Bank, [appellant] was informed - in brief - that it was not eligible for this because of the BKR registration.

3 Assessment
3.1.
In the first instance, the [appellant] briefly requested that ING be ordered to remove its BKR registration, on pain of forfeiture of a penalty payment.

3.2.
The Court in preliminary relief proceedings dismissed [the Appellant] in its claims as inadmissible and, in summary, considered the following. The period within which it should have lodged an appeal against the letter of rejection of 23 July 2018 expired on 4 September 2018, whereas the summons in these interim measures dates from 30 October 2018. The exceeding of the time limit on the part of [the appellant] is not excusable. This term applies both to the filing of an application with the court and to the filing of a claim in preliminary relief proceedings. Nor could a substantive assessment lead to the granting of [appellant's] claim, according to the Court in preliminary relief proceedings.

3.3.
[Appellant] objects to this decision and the grounds on which it is based. After reformulating its claim, she claimed, in summary, the removal of the special codes in the Central Credit Information System (CKI) of the BKR on pain of forfeiture of a penalty payment.

3.4.
Grief II alleges that the Court in preliminary relief proceedings [appellant] erred in dismissing her application as inadmissible. In this respect the Court of Appeal considers as follows.

3.4.1.
Pursuant to Article 21 of the General Data Protection Regulation (Regulation (EU) 2016/679; hereinafter: AVG), the data subject has the right at all times to object to the processing of personal data concerning him/her. The data controller shall provide the data subject with information on the action taken on the request within one month of receipt of the request; if necessary, this period may be extended by two months (Article 12(3) AVG).

3.4.2.
Article 79 of the AVG instructs Member States to ensure that every person concerned has the right to an effective remedy if he considers that his rights under the AVG have been infringed. In so far as is currently relevant, this access to justice is regulated by Article 35 of the AVG Implementation Act (hereinafter: UAVG). This provision gives the data subject (or, in the words of the UAVG, the interested party) the right to request the court to order the data controller to grant the request as referred to in Article 12 of the AVG. The application shall be submitted within six weeks of receipt of the reply from the data controller. If the data controller has not replied to the request in time, the submission of the application shall not be subject to any time limit.

3.4.3.
Article 35 of the UAVG largely builds on the now expired Articles 45 and 46 of the Personal Data Protection Act (Wet bescherming persoonsgegevens) and the preceding Article 34 of the Personal Data Records Act (Wet persoonsregistraties). This means that the history of the law and case law relating to these provisions may be relevant to the interpretation of Article 35 UAVG (cf. Court of Appeal The Hague 1 September 2015, ECLI:NL:GHDHA:2015:2332).

3.4.4.
In itself, the special legal status of Section 35 UAVG does not prevent questions about the processing of personal data from being submitted to the court in summary proceedings (cf. Parliamentary Documents I, 1987/88, 19 095, no. 2b, pp. 17-18). Thus, in the context of proceedings concerning the accuracy of personal data, the processing of such personal data may also be demanded to cease (cf. Parliamentary Papers II, 1981/82, 17 207, No 3, p. 40); in such a case, it is conceivable that an interim injunction may be sought in respect of such processing. Enforcement disputes concerning the processing of personal data may also be submitted to the judge hearing the application for interim relief.

3.4.5.
A case must be distinguished from this, such as the present one, in which the requested injunction aims at a cessation of the processing of personal data and in which the data controller was summoned to appear in preliminary relief proceedings after the plaintiff/interested party had allowed the term of Article 35 paragraph 2 UAVG to expire. In such a case, the claimant will, in principle, be inadmissible in his claim. The claimant in summary proceedings will have to substantiate his urgent interest in a case such as the present one against the background of the system of articles 21 AVG and 35 UAVG. This system is based on the idea that the parties first try to reach agreement themselves and that in the event of a negative response on pain of inadmissibility, the interested party only has limited time to submit his objections to the court (cf. Court of Appeal Amsterdam 2 February 2016, ECLI:NL:GHAMS:2016:358). The purpose of the statutory system is also to prevent the person responsible for processing from being summoned to appear raw or long after he has rejected the application.

In this context, it should also be borne in mind that the request under Article 21 of the AVG can be made at any time - and therefore more than once. It follows from this that the interested party (except for abuse of (procedural) law) may also submit a multiple application under Article 35 UAVG. It is also important to note that in the context of petition proceedings such as Article 35 UAVG, interim relief may also be requested in urgent cases (cf. HR 5 December 2014, ECLI:NL:HR:2014:3533, NJ 2016/251). In addition, the assessment in preliminary relief proceedings is, by its nature, provisional, whereas, as a rule, no proceedings on the merits will follow after an immediate injunction has been granted. This is all the more true in a situation such as the present one, since the procedure pursuant to Section 35 UAVG does not apply to the data controller.

3.4.6.
In view of the above, the person concerned who has allowed the period of Article 35(2) UAVG to expire will in principle first have to submit a new request on the basis of Article 21 UAVG. If he nevertheless chooses the route of summary proceedings after the expiry of that period, he will have to substantiate his urgent interest in the claimed remedy against the background of the above.

3.5.
In the light of the foregoing, [the appellant] has not substantiated sufficiently that it has an urgent interest in the requested remedy. The Court in preliminary relief proceedings was therefore justified in dismissing her application as inadmissible. Grief II fails.

3.6.
For that matter the Court of Appeal and the Court in preliminary relief proceedings are of the opinion that the requested injunctive relief cannot be granted even in case of a substantive review. To this end the Court of Appeal considers as follows.

3.6.1.
Pursuant to Article 8 of the Charter of Fundamental Rights of the European Union and Article 16 of the TFEU everyone has the right to the protection of his personal data. Subject to the principle of proportionality, limitations may only be imposed by law and if they are necessary and genuinely meet objectives of general interest recognised by the Union or the requirements of the protection of the rights and freedoms of others (Article 52(1) Charter).

3.6.2.
The processing of personal data is lawful only if and to the extent that at least one of the conditions referred to in Article 6(1) of the AVG is met. In points (e) and (f), Article 6(1) sets out, inter alia, the condition that the processing is necessary for the performance of a task carried out in the public interest or is necessary for the protection of the legitimate interests of the controller or of a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject. Pursuant to Article 21 of the AVG, the controller shall cease processing unless he or she establishes compelling legitimate grounds for processing which override the interests, rights and freedoms of the data subject or which are related to the institution, exercise or justification of legal proceedings.

3.6.3.
There is no dispute between the parties that the credit registration is based on article 4:32 Wft. This article implements Article 8 of Directive 2008/48/EC (Consumer Credit Directive). One of the purposes of registration is to assess a consumer's credit situation (recital 28 of the Consumer Credit Directive). Registration is thus based on a legal basis and meets a general interest objective recognised by the European Union and the requirements of protecting the rights and freedoms of credit providers.

3.6.4.
[Appellant] has argued that the BKR registration prevents it from applying for a mortgage. According to [appellant], the apartment she now occupies with her husband, son and daughter does not meet the correct (security) requirements. Her son suffers from ADHD and ODD. Appropriate housing must guarantee the safety of her son and daughter. Furthermore, she argues that her income and that of her partner is too high for a social housing, while rents on the private market are so high that in practice she can not find a suitable rental home. She also argues that specialty code 4 is not correct, because [appellant] was registered in PIVA, the equivalent in Curaçao of the Basic Registration of Persons. Specialty code 3 is also incorrect, because [appellant] has now paid off its debt in full.

3.6.5.
ING disputes that special asset codes 3 and 4 are incorrect. It also points to the importance of protecting credit providers against borrowers who have been found to be unable to repay their loan (on time). ING also argues that [the appellant] did not inform it about its departure to Curaçao, that it was therefore inaccessible to ING from 2002 to 2009 without the credit having been repaid and that [the appellant] provided incorrect information to it and to collection agencies engaged by it.

3.6.6.
The Court of Appeal recognizes the weighty importance of [the appellant] to be eligible for a (mortgage) loan, also in view of her personal situation. Nevertheless, the court of appeal is of the opinion that the registration is not disproportionate in relation to the purpose to be served by it. The interest of ING and other credit providers to be protected must weigh heaviest in this case. In this respect the fact that the loan in proportion to the amount owed has only been repaid after a long period of time (fifteen years) weighs heavily. Furthermore, the Court of Appeal held that [the Appellant] had left for Curaçao in 2002 without informing ING and had remained unattainable for ING until 2009. This does not alter the fact that [the appellant] registered her stay in Curaçao in PIVA. ING could not know that she had temporarily emigrated to Curaçao. Moreover, ING had no access to PIVA. The special code 4 is therefore not incorrect. Specialty code 3 is also not incorrect. After all, [the appellant] withdrew more than € 250 under the loan and failed to meet its obligations for a long period of time; in the meantime an end date has been added, which - also for potential lenders - makes it clear that [the appellant] eventually repaid the loan.

Furthermore, it is important to note that in 2016 [the appellant] declared to ING that a garnishment of salary had been imposed on its partner and, in respect of a claim by DUO, on itself. If that statement is correct, it confirms that [the appellant]'s financial situation was not yet stable in 2016 in any event; if, as it argued on appeal, there were no wage attachments in place in 2016 and this is a 'lie for good' (i.e. to avoid increasing the monthly amount it would pay to repay the loan to ING), that circumstance increases the weight to be given to ING's interest. Finally, the court of appeal considers it important that [the appellant] has not substantiated its claim that it no longer has any debts, even on appeal. The other grievances thus also fail.

3.6.7.
Therefore, even in the event of a substantive assessment, the requested provision could not be granted at this time.

3.7.
The grievances fail. The judgment of which appeal will be upheld. As the unsuccessful party, [appellant] will be ordered to pay the costs of the appeal proceedings.