Hof Arnhem-Leeuwarden - 200.278.124/01

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Hof Arnhem-Leeuwarden - 200.278.124/01
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Court: Hof Arnhem-Leeuwarden (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 5(1)(c) GDPR
Article 6(1)(f) GDPR
Article 6(1)(c) GDPR
Article 79 GDPR
Articles 4:32(1) and 4:34 of the Financial Supervision Act (Wet op het financieel toezicht)
Decided: 17.12.2020
Published: 22.01.2021
Parties:
National Case Number/Name: 200.278.124/01
European Case Law Identifier: ECLI:NL:GHARL:2020:10564
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: De Rechtspraak (in Dutch)
Initial Contributor: n/a

The Arnhem-Leeuwarden Court of Appeal upheld its earlier decision: credit registration of the appellants is done under the GDPR legal basis of legal obligation and not legitimate interest. Therefore, their credit records cannot be removed from the Central Credit Information System (CKI). The court has also ruled that the risk of legal process costs is not in the way of the right to an effective judicial remedy guaranteed by article 79 GDPR.

English Summary[edit | edit source]

Facts[edit | edit source]

In 2011 Rabobank loaned 70K EUR to the appellants with a monthly payment of 700 EUR. At that time one of the appellants had a well-paid job, which he lost in 2013 and he hadn't been able to find another job after that. Financial problem followed, and the appellants ended up selling their house and taking an additional loan from their son to settle the debt payment scheme with the mortgage company and Rabobank. As a result of the above, Rabobank made a record about the appellants' situation in the CKI in 2018; the registration is schedules to be removed in 2023. In 2019 the appellants sent a letter to Rabobank requesting it to remove the registration, based on GDPR Articles 16 and 17 in combination with articles 21 and 6. Rabobank rejected the request and this decision was upheld by the Court. Appellants are challenging this decision of the Court.

Dispute[edit | edit source]

Should Rabobank remove the appellants' credit registrations from the CKI register?

Holding[edit | edit source]

Regarding the legal basis of processing, the Court ruled that the applicable legal basis in this case is legal obligation under articles 4:32(1) and 4:34 of the Financial Supervision Act (Wet op het financieel toezicht). The Court pointed to the extensive considerations given to this matter by the Court of Appeal of 's-Hertogenbosch in a similar case. This means that the appellants cannot exercise their rights to erasure (Article 17 GDPR) and objection to processing (Article 21 GDPR), so appeal based on these articles was dismissed. When deciding on the necessity and proportionality of keeping the CKI record, the Court considered the following: 1) The appellants themselves admitted that they were hindered by the registration, they were not in a distressing situation as a result of the registration; 2) One of the appellants has enjoyed good income for a long time, but that income did not protect him from a difficult financial situation; 3) The appellants have not sufficiently demonstrated that they have done everything in their power to pay their debts; 4) Rabobank has repeatedly iterated during the hearing that it will give favorable consideration to a request for the termination of the registration if the CKI registration prevents the appellants from finding a new rental home; 5) The rectification request made by appellants in addition to other requests, cannot be granted because they have not made it clear that the data concerning them are incorrect.

The Arnhem-Leeuwarden Court of Appeal upheld its earlier decision: credit registration of the appellants is done under the GDPR legal basis of legal obligation and not legitimate interest. Therefore, their credit records cannot be removed from the Central Credit Information System (CKI). The court has also ruled that the risk of legal process costs is not in the way of the right to an effective judicial remedy guaranteed by article 79 GDPR.


Comment[edit | edit source]

This is the decision the Court is referring to when asserting that the legal basis of making credit record is legal obligation and not legitimate interest:

https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHSHE:2020:2536&showbutton=true&keyword=ECLI%3aNL%3aGHSHE%3a2020%3a2536

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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 Leeuwarden

civil law department, trade

court case number 200.278.124/01

(case number Northern Netherlands court C / 17/169522)

decision of 17 December 2020

in the case of

1[applicant],

residing in [A],

hereinafter: [applicant],

and

2. [applicant],

residing in [A],

hereinafter: [applicant],

applicants on appeal, also applicants in the provisional application,

at first instance : Applicants,

hereinafter jointly: [Applicants] et al.,

attorney KJ Zomer in Oosterhout,

against

the cooperative COÖPERATIEVE RABOBANK UA ,

established in Utrecht,

defendant on appeal, also defendant in the provisional application,

at first instance: defendant,

hereinafter: Rabobank ,

attorney at law PW van Kooij in Leiden.

1

1. The proceedings in court

The course of the proceedings before the court is apparent from the order of the Northern Netherlands court, private law department, location Leeuwarden of 19 February 2020.

2

2. The proceedings at court

2.1

The course of the proceedings at the Court of Appeal is apparent from:

- the notice of appeal of [petitioners] et al (with appendices) dated April 28, 2020 (received

at the Court of Appeal on April 30, 2020);

- Rabobank's statement of defense dated 29 July 2020 (received at

the court of appeal on that date );

- the deed submitting appendices of [applicants] et al;

- the official report of the oral hearing of November 18, 2020.

2.2

The court has set a date for the decision.

2.3

[Applicants] et al. request the Court of Appeal to annul the decision of the District Court and to grant their original request as yet. That request means that Rabobank is ordered to impose a penalty to remove the special coding (s) in the Central Credit Information System (hereinafter: the CKI) at the Credit Registration Office (hereinafter: BKR) about [applicants] et al. and keep it away. [Applicants] et al. also claim that Rabobank be ordered to pay the costs of the proceedings before the District Court and the Court of Appeal.

They also request the Court of Appeal to submit preliminary questions to the Supreme Court and - that is the provisional request - during the period that the Court of Appeal cannot make a final decision pending the answers to those questions by the Supreme Court to order Rabobank to use the coding. by passing.

3

3. What is this case about?

3.1

These proceedings concern the question of whether Rabobank should delete the credit registrations it has carried out on [applicants] et al. In the BKR register. The background to the dispute between the parties on this question is the following.

3.2

In 2011, Rabobank provided consumer credit to [applicants] et al of

€ 70,000, on which [applicants] et al had to repay € 700 per month. In the same year, Aegon Hypotheken BV (hereinafter: Aegon) provided a mortgage loan of approximately € 1,100,000 in connection with the purchase and renovation of a home in [A]. This house, a former farm, came from the estate of the late parents of [applicant].

3.3

Since 1999, [applicant] has been a statutory director of an internationally operating office supplies company. His employment contract was terminated on August 1, 2013. [applicant], who was 58 years old at the time, had an income (including bonuses) of approximately € 350,000 gross per year. A gross compensation of € 200,000 was paid to [applicant] upon termination.

3.4

[applicant] was unable to find another job. He received unemployment benefits that were considerably lower than his last salary. From 1 October 2016, [applicant] received an IOAW benefit. [applicant] had no income of her own.

3.5

In January 2018, Aegon sold the home of [applicants] et al for € 650,000 using a power of attorney issued by [applicants] et al. After buying off a savings account pledged to Aegon, a debt to Aegon of more than € 250,000 remained. The debt of [petitioners] et al to Rabobank at that time amounted to more than € 71,000.

3.6

[Applicants] et al have turned to Bureau Benedictus for debt counseling. That office has established that the total indebtedness of [applicants] et al (including the claims of Aegon and Rabobank) amounted to more than € 387,000. On 13 June 2018, Bureau Benedictus proposed to the unsecured creditors on 13 June 2018 a payment of 9.07% of their outstanding claims against final discharge. The amount that was available to the creditors came from the surrender of an insurance policy and (for an amount of € 10,757) from a son of [applicants] et al. would then receive in the (fictitious) situation that [applicants] et al would end up in the WSNP and then receive an income from work of € 2,700,- per month.

3.7

Rabobank has accepted the proposal, the other creditors also with the exception of Aegon. Subsequently, at the request of [Applicants] et al. By order of 18 September 2018, the Northern Netherlands District Court ordered Aegon to agree to the offered debt settlement (cf. Article 287a Bankruptcy Act). In this decision, the court considered, among other things, that [petitioners] et al. Argued that the pension of [petitioner] will only start on 1 January 2023 and that by that time the regular term of a possible WSNP has long expired.

Aegon

withdrew its appeal against the court order on November 23, 2018.

3.8

In December 2018, [applicant] requested his pension fund to grant him

early retirement with effect from 1 January 2019. As of January 1, 2019, [applicant] will receive an (early) pension payment of more than € 4,150 net per month.

3.9

[Applicants] et al have repaid € 5,567 of the amount paid by their son for the debt settlement. The remaining amount of € 5,000 has been waived by their son.

3.10

As of 9 June 2018, [Applicants] et al. rent a former rectory of the Reformed Church of [A] for a period of five years for an amount of € 700 per month. A permit has been granted on the basis of Article 15 of the Vacancy Act for the rental of the presbytery.

3.11

Rabobank has had a number of special codes concerning [applicants] et al registered in the CKI about the aforementioned consumer credit and about a payment account of [applicants] et al. receivable arose, this arrears was subsequently claimed and an amount of € 250 or more was finally deducted from the receivable. The last coding dates from September 18, 2018. In both cases it is stated that the contract (and thus the registration) will be deleted in September 2023, if no changes are made.

3.12

As a result of the arrears and the write-off on its claim from the mortgage loan and the residual mortgage debt, Aegon has also registered special codes in the CKI with the end dates May and September 2023.

3.13

In letters dated 22 August 2019, CoderingVrij requested Rabobank and Aegon on behalf of [Applicants] et al. To remove the registrations. [Applicants] et al. Based this request on Article 16 and Article 17 in combination with Articles 21 and 6 GDPR. Moreover, according to the letter, registration is contrary to the principles of proportionality and subsidiarity. Both Rabobank and Aegon have rejected this request in writing.

3.14

[Applicants] et al. subsequently requested the court to order Rabobank and Aegon Levensverzekering NV (subject to the imposition of a penalty) to remove the special codes within 48 hours after the order of the court has been served and to keep them removed. After [applicants] et al. Had withdrawn the application against Aegon Levensverzekering NV for formal reasons, the court rejected the application against Rabobank.

4

4 The assessment of the dispute

Introductory remarks

4.1 [petitioners] et al. Have eight grounds of appeal - which they call grievances, in which terminology the court of appeal will follow them - against the decision of the district court. With these complaints, [applicants] et al submit the full extent of the dispute between the parties to the court of appeal. The court will deal with the points in dispute and in that context also discuss the grievances. This means that it is not indicated per complaint whether and to what extent the complaint succeeds or fails.

4.2

[Applicants] et al. point out (in ground of appeal 1) that the District Court failed to state certain facts that they consider relevant. They fail to recognize that there is no legal rule that obliges the court to state all facts stated by one party and acknowledged or not disputed by the other party as established in the judgment. The court is free to make any selection from the facts established between the parties that it considers relevant for the assessment of the dispute.

4.3

The court of appeal also made a selection of the facts relevant to the assessment of the dispute. When discussing the dispute between the parties, the court of appeal will proceed on the basis of the aforementioned facts. If the court bases its decision on a specific point of dispute on other facts, the court will state those facts at that point of dispute.

Basis of the processing in the CKI

4.4

First of all, the parties differ on the question of the basis for the processing of personal data - in this case, data about finances entered into - in the CKI. Article 6 paragraph 1 GDPR stipulates that the processing of personal data is only lawful if and insofar as at least one of the grounds (“conditions”) for processing stated in that paragraph applies. [Applicants] et al argue that in this case this basis can (only) be Article 6 paragraph 1 under f GDPR. According to Rabobank, Article 6 paragraph 1 under c is (also) the basis for registration in the CKI.

4.5

In an earlier judgment 1 , this Court of Appeal held that and why the registration of credit data in the CKI takes place on the basis of a legal obligation, as referred to in Article 6 paragraph 1 under c GDPR, namely on the basis of Articles 4:32 paragraph 1. and 4:34 Financial Supervision Act (Wft). In a detailed decision 2the Den Bosch court has reached the same conclusion. In this decision, the person concerned was assisted by a colleague of the lawyer of [applicants] et al. The arguments now put forward by [applicants] et al in support of the assertion of [applicant] that Article 6 (1) (c) of the GDPR cannot be the basis for the registration of the credit data on [petitioners] et al in the CKI was taken into account by the Den Bosch court of appeal. The court therefore sees no reason to discuss those arguments again. That would amount to a repetition, or summary, of the extensive considerations of the Den Bosch court.The Court of Appeal agrees with what it itself in the said judgment and with what the Den Bosch Court of Appeal considered and decided in the said decision about the basis of the processing of personal data and adopts those considerations here.

That the court in The Hague in by [the applicant] and others cited, recent decision 3 to have another opinion, does not alter this. In the decision of the Court of Appeal of The Hague, no (recognizable) attention is paid to the arguments, in the opinion of the Court of Appeal, on which the Court of Appeal of Den Bosch bases the conclusion in its decision that the registration of credit data in the CKI does take place on based on a legal obligation as referred to in Article 6 paragraph 1 letter c GDPR.

4.6

If the processing of personal data, as here, is based on a legal obligation, the data subject cannot invoke the right to erasure laid down in Article 17 GDPR (cf. Article 17 (3) b GDPR). In that case, the data subject does not have the right to object as referred to in Article 21 GDPR, because that right is associated with data processing on the basis of Article 6 paragraph 1 under e and f GDPR. The appeal of [Applicants] et al. To these rights is therefore not valid, so that it can be left open as to whether, as [Applicants] et al. Argue, in that case a different weighing of interests should take place than the weighing of interests discussed below.

General

balance of interests 4.7 The protection of natural persons when processing personal data is a fundamental right, as is clear from consideration 1 of the GDPR. The fundamental right to the protection of personal data is further enshrined in Article 10 of the Constitution and in Article 8 of the Charter of Fundamental Rights of the European Union. It is also protected as part of private life in Article 8 of the European Convention on Human Rights (ECHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

4.8

Article 5 (1) (c) of the GDPR stipulates that the processing of personal data must be adequate, relevant and limited to what is necessary for the purposes for which they are processed (see also recital 39 of the preamble to the GDPR). Personal data may only be processed if the purpose of the processing cannot reasonably be achieved in another way.

In addition, recital 47 of the preamble to the GDPR states that the legitimate interests of a controller or of a third party may provide a legal basis for processing, provided that the interests or fundamental rights and freedoms of the data subject do not outweigh the reasonable expectations of the data subject based on his relationship with the controller. A careful assessment is required to determine whether there is a legitimate interest, as well as to determine whether a data subject can reasonably expect processing for that purpose at the time and in the context of the collection of the personal data.

4.9

The foregoing means that even when the processing of personal data is based on a legal obligation (in this case the Wft), the task to perform that obligation does not justify every data processing. As was the case under the Personal Data Protection Act (Wbp), any processing of personal data must meet the requirements of proportionality and subsidiarity and, given the nature of the breach of privacy, a weighing up of interests is required on a case-by-case basis.

In this context, it should be borne in mind that the Supreme Court in its judgment of 9 September 2011 4 considered that the Wbp, then still in force, must be in accordance with the provisions of Article 8 of the European Convention on Human Rights. and that it follows from the legal history of the Wbp that every data processing must comply with the principles of proportionality and subsidiarity. In the opinion of the Supreme Court, this means that the infringement of the interests of the data subject may not be disproportionate in relation to the purpose to be served with the processing, and that this purpose cannot reasonably affect another, less disadvantageous for the data subject. , way can be realized.

Because the GDPR is not intended to limit the rights of natural persons to the protection of their personal data (in relation to the Wbp), the aforementioned principles also apply to the processing of personal data under the GDPR.

4.10

Data processing that violates the aforementioned principles and whereby the interests of the data subject must outweigh the interest to be served by the processing must therefore be regarded as unlawful. This balancing of interests involves an assessment of the purpose of the registrations of codes against the principles of proportionality and subsidiarity. In the context of this assessment, the interest of the data subject in the removal of the codes is weighed against the underlying importance of the (enforcement) of the codes.

Consideration of interests in this case

4.11 The Court of Appeal states first of all that it was argued on behalf of [Applicants] et al. During the oral hearing on appeal that they are indeed inconvenienced by the registration, but that they are not in a distressing situation as a result of the registration 5 . If the registration in the CKI can (also) be based on Article 6 paragraph 1 under c AGV, a weighing up of interests according to [applicants] et al is by definition to their disadvantage, unless there is a distressing situation 6. Be that as it may, and barring whether [applicants] et al have thereby withdrawn their objections against the result of the weighing up of interests made by the court, the court of appeal is of the opinion that the interests of [applicants] et al. weigh the interest of Rabobank in (enforcement of) the registration of the codes. The following is important here.

4.12

Credit providers may not grant credit to consumers if this is irresponsible due to excessive lending (cf. Section 4:34 paragraph 2 Wft). The information in the CKI provides the lender with information to estimate the risk of overfunding and the emergence (or exacerbation) of irresponsible debt situations. By extension, BKR contributes to limiting the financial risks associated with lending for its business members by informing these lenders about relevant details that have occurred in the recent past. Payment arrears or other irregularities that arise during the term of a loan are shown in the CKI with a special code. When the claim is paid,An end date will be noted with the contract and a term of five years will run, after which the special feature code will be deleted.

4.13

In view of this objective of the CKI system, the registration of the special codes concerning [applicants] et al is in principle proportional. After all, [applicants] et al have had (substantial) debts in the past. In principle, the registration is also in accordance with the principle of subsidiarity, since there is no other way for lenders to become acquainted with the financial past of [applicants] et al. Other than by consulting the CKI.

4.14

In view of this objective of the CKI system, the interest in continuation of BKR registrations is in principle also given. After all, removing or modifying the BKR registrations would result in an incorrect representation in the CKI of the payment transactions of [Applicants] et al and its history and thus undermine the purpose of BKR.

4.15

The words “in principle” have been used for this three times. [Applicants] et al. have argued that the risk of over-lending and the occurrence of problematic debts, and therefore also the existence of a credit risk, is highly abstract for them. They pointed out that through no fault of their own - as a result of the unexpected dismissal of [the applicant] and the subsequent long-term unemployment - they found themselves in a situation where they could no longer pay off their debts. In that regard, they also pointed out that, according to them, Aegon's unfriendly attitude led to their home being sold with a substantial residual debt. It is extremely unlikely that this situation will recur. They currently have a good and stable income and no debts, according to [applicants] et al

4.16

The court of appeal does not follow [petitioners] et al in this argument. From what has been established above about the income of [Applicants] et al. In the period that (among other things) the debt arose with Rabobank, it follows that [Applicants] et al., Despite the then determined generous income of [Applicant], entered into substantial debts and had not built up any (substantial) reserves. A good income apparently did not protect them from the emergence of a dire financial situation and that situation did not arise (and certainly not entirely) out of their control. Under those circumstances, the risk of over-lending and the emergence of problematic debts on the part of [Applicants] et al. With a good income is not just an abstraction, but a risk that was realized in the past and thus a sufficiently concrete risk.

4.17

Moreover, [Applicants] et al. Have insufficiently demonstrated that they have done everything in their power to settle their debts. It follows from the state of affairs regarding the debt settlement that [applicant] shortly after the debt settlement became final, took early retirement and then received an income that is significantly higher than the income at (summarized) assistance level assumed in the debt settlement. The Court of Appeal does not find the statement of [petitioners] et al for this, at first sight remarkable, concurrence of circumstances satisfactory. [Applicant] states that he was given the idea by Aegon to take early retirement. Without further explanation, which is missing, it cannot be seen why when it became clear to him that he would take early retirement the offer to his creditors, including Rabobank,has not revised. In this context it is important that [applicants] et al borrowed part of the amount with which the creditors were paid from their son (and therefore did not receive it as a gift) and that they (indeed) owe more than half the debt to him. refunded.

4.18 In view of what has been considered above, the interest in continuing the credit registrations of [Applicants] et al. Is given. Removing or modifying these registrations would result in an incorrect representation in the CKI of the lending and its settlement and thus undermine the (future-oriented) purpose of the registration.

4.19

The interest of [applicants] et al. Does not outweigh this interest. As has already been argued on behalf of [Applicants] et al., The registration does not lead to a distressing situation for them. [Applicants] et al. have made it sufficiently plausible that they cannot realize their wish to buy a house through the registration and that it is also difficult for them to rent a house in the free sector. On the other hand, [applicants] et al are currently renting a house. The fact that the house does not fully meet their wishes will be the case, but on the other hand, the rent for the house is relatively low. The lease will end on June 8, 2023. At that time, the registration period has not yet ended, but Rabobank has indicated, and repeated on appeal during the oral hearing,that if, towards the end of the rental period, it should appear that the registration still impedes [applicants] et al. in finding other accommodation, they will take a request to terminate the registration with benevolent consideration.

4.20

The court of appeal does not follow [petitioners] et al in the argument that due to the way in which credit registration is used, the system of credit registration - as the Court of Appeal understands: with [petitioners] et al. - acquires a punitive character. It may be the case that [applicants] et al feel punished by the registration. The court will not be able to take away that feeling. From what the Court of Appeal has considered above, it appears that the registration is not intended to punish [applicants] et al, but to protect them against over-lending and, by extension, any lenders against the risk they run as a result.

Decision based on article 34 UAVG

4.21 According to [Applicants] et al. The response of Rabobank to the request made on behalf of [Applicants] et al. (Cf. para. 3.13) does not meet the standards of the GDPR. [Applicants] et al refer in that regard to articles 34 and 35 UAVG. The court of appeal does not follow [petitioners] et al.

4.22

The request is first of all based on the rectification right laid down in Article 16 GDPR. [Applicants] et al. have not made it clear in the aforementioned request that the information registered about them is incorrect. In point 3 of their appeal they explicitly stated that "the correctness of the placed coding is not in question at all." As considered above, the right to erasure (Article 17 GDPR) and the right to object (Article 21 GDPR) are not relevant in view of the basis of data processing. This means that Rabobank could suffice with weighing up interests. Rabobank has also weighed up the interests, as shown in its response to the request of 1 October 2019. The Court of Appeal does not follow [petitioners] et al in the argument that the weighing of interests is not based on an investigation of the facts.The letter shows that Rabobank has investigated, among other things, the origin of the debts and the residential interest alleged by [petitioners] et al.

4.23

The conclusion is that the rejection by Rabobank of the request made on behalf of [Applicants] et al. Can withstand the test of criticism in terms of both content and motivation.

Preliminary questions

4.24 [Applicants] et al. Have requested the Court of Appeal to submit preliminary questions to the Supreme Court. Rabobank has objected to questions being referred for a preliminary ruling. The court will not ask questions for a preliminary ruling. From what has been considered above, it follows that the Court of Appeal has already answered the legal questions that are important for the decision of the dispute between the parties (largely with reference to earlier rulings of this Court of Appeal and of the Den Bosch Court of Appeal). Naturally, [petitioners] et al are free to appeal against the decision of the court of appeal. Contrary to what is the case according to [applicants] et al in comparable disputes about credit registrations, the credit registration of [applicants] et al will end more than two years after this decision. [Applicants] et al have therefore,unlike in their view, is often the case in comparable disputes, interest in lodging an appeal in cassation.

Provisional provision

4.25 Because the Court of Appeal will not ask questions for a preliminary ruling and will immediately issue a final decision, [Applicants] et al have no interest in the requested provisional request. The court will therefore reject that request.

Conclusion and order for costs

4.26 The complaints of [Applicants] et al. Fail. The request of [petitioners] et al cannot be allowed on appeal either. The decision of the court can therefore be validated.

4.27

The court will order [applicants] et al to pay the costs of the appeal (liquidated salary of the lawyer: 2 points, rate II - the court will not award separate compensation for the provisional request because it is unlikely for the defense against that request. additional costs have been incurred).

4.28

The Court of Appeal notes that, contrary to the Court of Appeal of Den Bosch, it considered and decided ex officio in the aforementioned decision, it sees no reason to omit a court order for costs. In this context, the Den Bosch court refers to the judgment of the European Court of Justice (CJEU) of 27 September 2017 (Puškár) 7 . In that judgment, the CJEU considered, among other things:

“ In view of all the foregoing, the answer to the first question referred for a preliminary ruling must be that

Article 47 of the Charter must be interpreted as not precluding

national legal provisions under which a person who claims that his right to protection of personal data, as guaranteed by Directive 95/46, has been violated, can only bring a legal remedy after he has first exhausted the available administrative means of redress, provided that remedies can be disposed of, does not disproportionately affect the right to an effective remedy referred to in that provision. In particular, prior exhaustion of the available administrative means of redress should not significantly delay the bringing of an appeal, should it suspend the limitation period of the rights concerned and should not entail excessive costs . ”

4.29

It follows from recital 9 of the preamble to the GDPR that the objectives and principles of Directive 95/46 / EU, the predecessor of the GDPR, remain intact. The Puškár judgment of the CJEU is therefore important under the applicability of the GDPR, also because the CJEU bases its decision on Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter: the Charter) in relation to Article 22 of Directive 95/46 / EU. The latter provision has been replaced by Article 79 (1) GDPR, the content of which - although the wording slightly differs - corresponds to Article 22 of Directive 95/46 / EC. Pursuant to Article 79 of the GDPR, the data subject has the right to an effective judicial remedy if he believes that his rights under the GDPR have been violated.

4.30

According to the CJEU in Puškár, no excessive costs may be associated with an administrative appeal that precedes legal proceedings. In this judgment, the CJEU has not ruled on a court order in civil proceedings between a data subject and a private processor. The latter can be a large institution such as, in this case, a bank. But it could also be a small retailer with a customer base, a non-profit organization or the local sports club. At the most, it can be deduced from this judgment that even civil proceedings must not entail excessive costs for the person concerned.

4.31

It is customary in civil proceedings to determine the amount of legal costs on the basis of the liquidation rate. In cases like this, as the Court of Appeal does, this will almost always be based on rate II (based on a claim or request of undetermined value). In these circumstances, in which the CJEU does not deem the charging of costs (in an administrative judicial process) to be inadmissible, provided that no excessive costs are involved, the court sees no reason to deviate in legal proceedings from the usual system of court costs orders. . The court takes into account that not only the data subject but also the private processor - not necessarily a wealthy entity - must incur costs for conducting proceedings.In the opinion of the court of appeal, the risk of this (moderate) order for costs does not preclude the right to an effective legal remedy guaranteed by Article 79 of the GDPR.

5

5 The decision

The Council:

confirms the order of the Northern Netherlands District Court of 19 February 2020;

rejects the request to make a provisional provision;

orders [Applicants] et al. to pay the legal costs of the appeal and estimates these costs, insofar as Rabobank has so far fallen, at € 760 in disbursements and € 2,148 for the liquidated salary of the lawyer;

declares this legal costs order to be enforceable in stock.

This decision was given by mrs. H. de Hek, SB Boorsma and WF Boele and was pronounced in public on December 17, 2020 by the councilor, in the presence of the registrar.

1 Arnhem-Leeuwarden Court 3 December 2019, ECLI: NL: GHARL: 2019: 10345.

2 Hof Den Bosch 6 August 2020, ECLI: NL: GHSHE: 2020: 2536.

3 Court of The Hague 8 September 2020, ECLI: NL: GHDHA: 2020: 1569.

4 ECLI: NL: HR: 2011: BQ8097 (Santander).

5 Pleading memorandum mr. KJ Zomer nr. 11.

6 Pleading memorandum mr. KJ Zomer nr. 10.

7 CJEU 27 September 2017, ECLI: EU: C: 2017: 725.