Rb. Amsterdam - 8598127 KK EXPL 20-357

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Rb. Amsterdam - 8598127 KK EXPL 20-357
CourtsNL.png
Court: Rb. Amsterdam (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 5 GDPR
Article 6(1)(f) GDPR
Decided: 22.07.2020
Published: 14.08.2020
Parties:
National Case Number/Name: 8598127 KK EXPL 20-357
European Case Law Identifier: ECLI:NL:RBAMS:2020:3945
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Uitspraak (in Dutch)
Initial Contributor: n/a

The tribunal orders a bank in a preliminary injunction to request the removal of the data of the plaintiff at the Credit Registration Office (BKR), even if he had a bad credit history with the bank.

English Summary[edit | edit source]

Facts[edit | edit source]

An individual had a credit history with the bank, at the term of which he could pay his debts due to reasons for which he cannot be held responsible. the bank registered his name under several codes at the BKR. The individual asks for the removing his data from the BKR. the bank refuses to send this request.

Dispute[edit | edit source]

the balance of interest was to be assessed, between the interests of the users not to be registered, and the interest of the society (banks and credit agencies) to assess the profile of their customers.

Holding[edit | edit source]

The tribunal confirmed that the data could be processed under the legitimate interest basis (ARTICLE 6(1)(f) GDPR). The tribunal weighted the different interests at stake and decided in favor of the complainant since he could prove that his bad credit scoring was due to unfortunate circumstances. The tribunal order the bank to request the BKR to remove several codes under which the plaintiff as registered.

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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.

Search result - view documentECLI:NL:RBAMS:2020:3945
Authority
Court of Amsterdam
Date of pronunciation
22-07-2020
Date of publication
14-08-2020
Case number
8598127 KK EXPL 20-357
Jurisdictions
Civil Justice
Special features
Interim injunction
Content indication
ABN Amro must have the codes of the Bureau Krediet Registratie (BKR) of an Amsterdam client removed.

Locations
Rechtspraak.nl
Enriched pronunciation
Ruling
COURT IN AMSTERDAM
Private law department

Case number: 8598127 KK EXPL 20-357

judgment of: 22 July 2020

judgment in the subdistrict court summary proceedings
I n z a k e

[plaintiff]
living at [residence]

plaintiff

to be specified: [plaintiff]

Agent: Mr W.S. Soyo

t e g e n c e s s

the limited liability company ABN Amro Bank N.V.
established in Amsterdam

accused

to be specified: ABN Amro

authorised Mr E. Jagt

COURSE OF THE PROCEDURE
By writ of summons dated 26 June 2019, with productions, [plaintiff] claimed a provision.

An oral hearing was held at the hearing on 20 July 2020. Prior to this, ABN Amro submitted productions. Plaintiff] has appeared, accompanied by his representative. ABN Amro has appeared by [name 1] and [name 2] , accompanied by its representative. At the hearing, the parties explained their points of view in more detail and the authorised representatives submitted pleadings.

Judgment has now been given.

GROUNDS FOR THE DECISION

Starting points
1. As a starting point the following applies.

1.1.
On 18 December 2008 [plaintiff] entered into a credit agreement with ABN Amro for an amount of € 104,000 for the purpose of financing the costs incurred by him in following the study at the B.V. Nationale Luchtvaartschool (hereinafter: the Aviation School).
At the same time [plaintiff] took out a second loan from ABN Amro from
€ 49,200 to finance the costs of interest on the credits, the rental costs and the cost of living resulting from this study.

1.2.
[plaintiff] started pilot training at the School of Aeronautics in 2009. He successfully completed this training in 2011.

1.3.
At that time [claimant] and his partner had a child. He works full-time as a manager at [name B.V. 1].

1.4.
[plaintiff] will then apply for a position as pilot at home and abroad. He will continue to make the necessary flight hours and exercises in flight simulators. Partly as a result of the credit crisis he fails to find such a position.

1.5.
In 2012 [plaintiff] and his partner have a joint gross income of € 48,912. The interest on the loans referred to under 1.1 was approximately € 48,912.
€ 800.00 per month. There were arrears in the payments of that interest. The parties had frequent contact with each other about this.

1.6.
With the consent of [plaintiff] ABN Amro has appealed to a guarantee fund of the Luchtvaartschool in connection with unpaid interest. That guarantee fund made payments to ABN Amro.

1.7.
In 2013 [plaintiff] and his partner will have another child. In the period thereafter, relationship problems arise and [plaintiff] and his partner separate for some time.

1.8.
In 2015 [plaintiff] starts a new study, HBO-ICT Software Engineering at the Hogeschool van Amsterdam, in part-time study, in addition to his full-time work.

1.9.
In 2015, the loans referred to under 1.1. will be restructured, as a result of which the original agreements will have been terminated and new ones concluded.

1.10.
By judgment of 26 September 2016, the District Court of Amsterdam declared the debt restructuring scheme under the WSNP applicable to [the plaintiff]. The debt consisted mainly of the loans with ABN Amro.

1.11.
As of 1 July 2017 [plaintiff] has a new position, with [name B.V. 2].

1.12.
By judgment of 6 November 2019, the court ruled that [plaintiff] is eligible for the clean slate award.

1.13.
ABN Amro has registered the following codes with the BKR:

On 4 August 2015 ABN AMRO registered an A code for contract number [number] ;

On 7 December 2015 ABN AMRO A coding for contract number [number] ;

On 30 May 2016 ABN AMRO a 2 coding for contract number [number] ;

On 7 March 2016 ABN AMRO an A coding for contract number [number] ; On 7 March 2016 ABN AMRO an A coding for contract number [number] ;

On 17 March 2017 ABN AMRO a A coding for contract number [number] .

1.14.
On 6 November 2019 ABN Amro registered a code 3 for contract numbers [number] , [number] and [number] .

1.15.
On 10 February 2020, ABN Amro registered a code 3 for the contract number [number] .

1.16.
plaintiff] , his partner and two children currently occupy an apartment on the 8th floor in Amsterdam Noord.

1.17.
1.17. [plaintiff] has entered into a contract of sale with regard to a new house to be built. Up to and including 22 July 2020, [plaintiff] has the possibility to invoke a financing reservation included in that agreement.

1.18.
On 18 June 2020, Rabobank rejected an application for a mortgage loan. On 22 June 2020, an (external) mortgage advisor announced that - in summary - a mortgage application from [plaintiff] would be rejected in view of the (arrears) coding at the BKR.

1.19.
By letters dated 4 May and 18 May 2020, an advisor of [plaintiff] requested ABN Amro to remove the registrations in the Central Credit Information System (CKI) of the BKR. ABN Amro responded negatively to this request.


Claim and defence
2. (plaintiff) requests by judgment, enforceable in stock, as formulated in the summons:

"Primary

1. order the defendant to remove or cause to be removed codes A, 2 and 3 from the CKI of the BKR immediately, but at the latest within five hours of the delivery of this judgment, at the time of registration of the credit agreement with contract numbers: [number] , [number] , [number] and [number].

Alternatively
II. order the defendant to remove or cause to be removed the codings A, 2 and 3 from the CKI of the BKR at the time of registration of the credit agreement with contract numbers: [number] , [number] , [number] and [number] without delay, but no later than one day, or at a time limit to be determined by your court in good court, after the delivery of this judgment.

General

III. order the defendant to pay the plaintiff a penalty of € 5,000.00 for each day that she does not comply with the primary or sub awarded main claim, up to a maximum of € 100,000.00.

IIII. order the defendant to pay the costs of the proceedings.

3. To this end [plaintiff] states - in brief - that, in view of the current facts, ABN AMRO's interests in maintaining the coding do not outweigh its interest in removing it. Maintaining the BKR registration has a disproportionately large impact on the privacy of [plaintiff] and is contrary to the principles of proportionality and subsidiarity. In addition, [plaintiff] states that the loans of ABN Amro in question were only taken out to follow a pilot training course. He has successfully completed that training. Normally he would have been able to repay the loans with a salary as a pilot. Only as a result of the credit crisis, as a result of which many pilots worldwide became and remained unemployed, he was not able to find a position as a pilot. The income from his existing full-time position was, also in view of the other fixed charges, by far not sufficient to pay the high interest on the loans referred to under 1.1. He has done everything in his power to return to a (also) financially stable situation, which is now also present. The current home is not suitable for his family, besides himself and his partner consisting of two children of currently 11 and 7 years old. He urgently needs a home that is suitable. Given the situation on the housing market in and around Amsterdam, he is dependent on a house for sale. For this he needs a mortgage loan. He can only obtain this loan if the codes from the CKI of the BKR have been removed. The registrations in question do not give a true and fair view of reality. There was no question of a problematic debt situation, only bad luck prevented him from finding work as a pilot. In this case, the interest in maintaining the coding does not outweigh the real chance that [plaintiff] will be limited in finding a suitable, safe and future-proof home. In view of his living situation and the expiring term for invoking a financing reservation, he has an urgent interest in his claim, according to - always - [plaintiff].

4. ABN Amro puts forward a substantiated defence against the claim. In short, it argues the following. ABN Amro disputes that [plaintiff] has an urgent interest in his claim, because this is insufficiently substantiated. Moreover, [plaintiff] has - by entering into the contract of sale of a new-build home - manoeuvred itself in the current situation. Also, the house in question still has to be built. In addition, ABN Amro argues that the registrations are correct and have been made on good grounds. In order to protect both consumers and lenders, it is of great importance that, in the case of a new credit application, information can be known about any arrears, details and recovery reports in the past. Unless there is disproportionality, the registration in the CKI of the CRD should be correct and complete, otherwise the registration system will become meaningless. In the case of [plaintiff] there has been a problematic debt situation for a long time. In connection with this, ABN Amro had to write off more than € 175,000. The period since the granting of the clean slate is too short to be able to conclude that there is (and will be in the future) a stable financial situation. It does not follow from what [the plaintiff] has stated about his situation that there is an emergency situation that makes maintaining the registrations disproportionate. This is already the case because [plaintiff] could also occupy a rental property, and also because the fact that there are registrations in the CKI does not mean that [plaintiff] will not be able to obtain a mortgage loan at all. Furthermore, in the event that [plaintiff]'s claim would be allowable, ABN Amro opposes the granting of the penalty payment, because it will voluntarily comply with an award decision.

Assessment
5. In view of the nature of the claim and the circumstances set for that purpose, there is a sufficient degree of urgency, so that [plaintiff] is admissible in his claim.

6. In these interlocutory proceedings it shall be assessed whether the circumstances to be considered plausible in this case require an orderly measure or whether the claim of [plaintiff] in proceedings on the merits has such a chance of success that it is justified to anticipate its granting by making a provision as claimed.

7. In the context of participating in that credit registration system, credit providers shall process personal data. They are subject to the General Data Protection Regulation (EU) 2016/679 (AVG). According to Article 3(4) of the Data Protection Regulation, the processing of personal data by the BKR - and therefore also by the credit providers - finds its legitimate basis in Article 6(1)(f) of the GCG, because the processing is necessary to promote the legitimate interests of the BKR and its business clients.

8. The purpose of the BKR registration is to promote a socially responsible service provision in the financial field, with the aim, among other things, of limiting the credit and payment risks for credit providers and preventing overcrediting and other problematic debt situations among the debtors involved. If problematic debts have been incurred in the past, this is a circumstance that a lender should be able to take into account in its assessment of a credit application. Therefore, it is very important that late payments or other irregularities arising during the life of a credit agreement are indicated in the CCCI with special ratings. In the case of [plaintiff], these are codes A (delay), 2 (claim claimed) and 3 (write-off). In principle, these registrations remain visible for five years.

9. It is not disputed that in this case the BKR registrations are factually correct and have been made on good grounds. The question that divides the parties is whether there are currently grounds to cancel the registration prematurely. In answering this question, the interest in continuing the BKR registration must be weighed against the interests of [the plaintiff] in case of deletion. All currently known facts and circumstances must be taken into account in this weighing. Plaintiff] must sufficiently demonstrate that he has such an important interest in (early) deletion of the registration that the (social) interest of the registration must give way to this.

10. The fact that there is an important public interest in enabling other lenders (affiliated to the BKR) to weigh up their own interests on the basis of factually correct information when granting credit to [plaintiff] is evident and is not disputed by [plaintiff] in itself.

11. The fact that [plaintiff] ended the WSNP trajectory in 2019 with a clean slate, that he has had no more debts since the start of the WSNP trajectory, that he has now acquired a higher income by finding another job and - in addition to his full-time position - has taken a part-time HBO (higher professional education) course in which, according to his statement, he will graduate in the near future, are all circumstances which - however laudable - do not detract from the aforementioned social interest in a correct and complete registration of codings for debts from the past.

12. In the present case, however, there is a special circumstance. This lies in the nature and purpose of the loans to which the codings reported by ABN Amro to the BKR relate. After all, the (original) credit agreements between the parties were concluded with a view to [plaintiff] attending a pilot training course at the aviation school. These credit agreements were concluded during a period in which this was generally considered a perfectly normal course of events for prospective pilots. It was generally assumed that, once the pilot's licence was obtained, a position could be obtained in which wages were paid that would enable the person concerned to repay the loans in full in the foreseeable future. Not only [plaintiff] , but also ABN Amro (apparently) assumed this at that time.

13. plaintiff] did what could be required of him by obtaining the pilot's licence. Moreover, [plaintiff] has indisputably stated that he continued to make the required flight hours and exercises in flight simulators afterwards. Claimant] has also sufficiently demonstrated that after obtaining his licence he applied many times at home and abroad for positions as a pilot.

14. The above expectations of both parties have not been met. It is sufficiently plausible that the cause of this is largely due to an unforeseen circumstance - at least as far as the [plaintiff] is concerned - external to him, i.e. the credit crisis that arose shortly after the conclusion of the credit agreements. After all, as a result of this a lot of jobs for pilots were lost worldwide.

15. That [plaintiff] left other (substantial) debts unpaid has not become apparent. According to the letter dated 10 June 2016 from the Municipality of Amsterdam (Kredietbank) to the (then) representative of ABN Amro, at the start of the WSNP process there were three creditors and the total debt amounted to
€ 152.260,09. Of this amount, € 145,435.73 concerned the claim of ABN Amro from the credit agreements (to the extent that ABN Amro has subsequently written off a higher amount, this will concern the interest due afterwards). The remaining approximately € 7,000 concerned, as [plaintiff] has undisputedly explained, the claim from the guarantee fund of the Aviation School in connection with the reliance that ABN Amro had placed on it because of the arrears in the interest payments. As [plaintiff] undisputedly further explained, the third debt concerned an amount of approximately € 300.00 due to an as yet unpaid lease sum in respect of a Scooter purchased in March 2012, which (as is intended for an existing debt) was included in the WSNP scheme. The fact that the latter debt was problematic (in the sense that there was a problematic arrears in the instalments due) was neither stated nor revealed.

16. It follows from the above that although a very high debt arose in the period 2012 to 2016, this debt (apart from approximately €300 for the Scooter) related entirely to the loans taken out by [the plaintiff] with a view to his training as a pilot. The financial obligations from those loans were so high (a credit compensation of effectively 6.4% per year, not to mention repayment) that it must have been foreseeable for ABN Amro when entering into the credit agreements that there was a good chance that they could not (fully) be met by [plaintiff] if he could not obtain a position as a pilot. This is certainly in view of the other financial obligations that a family with children entails. Plaintiff] has undisputedly stated that he has always paid fixed charges such as mortgage obligations. That he has allowed other (substantial) debts to arise has neither been stated nor proved. Therefore, the fact that [plaintiff] was unable to meet its financial obligations under the credit agreements was not caused by decisions and conduct of [plaintiff], but by the fact that the expectations of the parties at the time of entering into the credit agreements as referred to in 12. were not fulfilled, as a result of the cause referred to in 14.

17. This means that it is sufficiently plausible that there has not been a problematic debt situation in the sense that [plaintiff] has been lightly indebted or, although having financial resources, would have spent them on matters other than the payment of debts when the opposite could reasonably have been expected of him. ABN Amro has not argued that [plaintiff] could be blamed for assuming too lightly that he would be able to obtain a position as a pilot after obtaining a licence. If this accusation could be made, this also applies to ABN Amro, which apparently assumed the same starting point.

18. ABN Amro has rightly argued that it is of great importance that when assessing a new credit application, lenders can be familiar with information regarding possible arrears in the past. In the present case, however, [plaintiff] rightly pointed out that the special circumstances of his case are not mentioned in the CKI of the BKR. However, for the assessment of the way in which [plaintiff] deals with his financial obligations, in particular those arising from the credit agreement, the above circumstances are essential. The fact that they are not mentioned in the CKI gives an incomplete picture. This means that future lenders taking note of the codings in the CKI will not be informed of all facts relevant to their assessment of [Claimant's] creditworthiness. In this case, this significantly impairs the CKI's function of providing correct and complete information to lenders.

19. ABN Amro has contested that the codings in the CKI prevent [plaintiff] from obtaining a mortgage loan. Partly in view of the documents submitted by [plaintiff] and explanations given at the hearing, however, it has become sufficiently plausible that in connection with those codings it is not to be expected that [plaintiff] will be able to obtain a mortgage loan for the purchase of another dwelling.

20. Finally, it is important how important the interest of [plaintiff] is in being able to obtain a mortgage loan for the house (or another owner-occupied dwelling) purchased by him. plaintiff] has explained that his current home, which he and his partner moved into 13 years ago, has become unsuitable for his family. This is because this house is too small for a family with two growing children aged 11 and 7. He also explained that, partly in view of the neighbourhood, it is not responsible to let the children play outside unsupervised, while the house cannot be supervised because it is on the eighth floor. The fact that he has a great interest in being able to move into another home more suitable for a family with growing children in the foreseeable future (and not only in four years' time) has made [plaintiff] sufficiently plausible.

21. The plaintiff] has stated indisputably that he and his partner do not qualify for social housing in view of their income. Furthermore, he has made sufficiently plausible that there is little chance that he will be able to obtain a suitable and affordable other (liberalized) rental home. The examples mentioned by ABN Amro in that context (four houses, one subject to reservation, one subject to option and one also an apartment) does not show the opposite, while further problems in finding so-called 'middle rent' housing in Amsterdam and surroundings are generally known.

22. It follows from the above that [the plaintiff] has a substantial interest in being able to obtain another home suitable for his family, which is not likely to be provided by a rented home, and that the chance that he will be able to obtain the mortgage financing required for an owner-occupied home if the above coding concerning the credit agreements with ABN Amro remains (very) low.

23. It follows from the above that in this case, in summary, there is a situation in which:

-
the reason that the debts have not been repaid (not being able to find a position as a pilot) is outside the personal sphere of [plaintiff] ;

-
the cause of this is a change in external circumstances (the credit crisis) that the parties did not foresee when they entered into these credit agreements;

-
For the rest, [plaintiff] did not leave any (substantial) debts unpaid and there was (was) no problematic debt situation in that respect;

-
the indication of the codes in the CKI gives an incomplete and therefore inaccurate picture, because they do not mention special circumstances which are essential for an assessment of [plaintiff's] past (financial) conduct;

-
[plaintiff] has a substantial interest in finding a suitable alternative home for his family in the foreseeable future;

-
it can reasonably be expected that the mortgage loan needed for this purpose will not be obtained if the codings in the CKI are maintained.

24. In view of the above, it is considered for the time being that the interest of [the plaintiff] in removing the coding outweighs the interest served by maintaining it to such an extent that maintaining the coding must be regarded as disproportionate.

24. ABN Amro has undisputedly explained that it cannot remove codings from the CKI itself, but that it can only submit a request to the BKR. This will be taken into account in the conviction to be pronounced hereinafter. There is also reason to set the time limit after this judgment has been handed down within which the judgment must be complied with on a day, as requested in the alternative.

24. ABN Amro has also opposed the award of a penalty payment, because it will voluntarily comply with an award verdict. This single statement of ABN Amro does not mean that [plaintiff] no longer has an interest in granting the requested penalty payment. There is, however, reason to moderate the claimed penalty payment and the maximum related to it.

24. This means that the claim will be awarded as determined below.

24. ABN Amro will be charged with the costs of the proceedings as the unsuccessful party.

DECISION
The cantonal judge:

Condemns ABN Amro to immediately, but at the latest on the day following the day on which this judgment is rendered, submit a request to the BKR to remove or have removed the codes A, 2 and 3 in the CKI of the BKR when registering the credit agreement with contract numbers [number] , [number] , [number] and [number];

Condemns ABN Amro to pay to [plaintiff] a penalty payment of € 1,000 for each day, including part of a day, that ABN Amro fails to comply with the conditions under 1. The aforementioned order with a maximum penalty of € 30,000.00;

orders ABN Amro to pay the costs of the proceedings, estimated on the part of [plaintiff] to date:

-court registry fee: € 83.00

-costs subpoena: € 100,89

-Agent's salary: € 480.00

-------------- +

Total: € 663.89

including any VAT due;

Condemns ABN Amro to pay an amount of € 60.00 after salary, as well as to pay an amount of € 68.00 and the costs of service of the judgment, under the condition that ABN Amro has not fully complied with this judgment within fourteen days after being notified to comply and that service of the judgment has not taken place until after fourteen days after being notified to comply, all this, if applicable, including VAT;

declares the convictions in this judgment to be enforceable in stock.

Thus rendered by C.L.J.M. de Waal, cantonal judge, and pronounced at the public hearing on 22 July 2020 in the presence of the Registrar.