Rb. Amsterdam - AMS 22/1414
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| Rb. Amsterdam - AMS 22/1414 | |
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| Court: | Rb. Amsterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 17 GDPR Article 34 General Data Protection Regulation Implementation Act (UAVG) |
| Decided: | 24.03.2022 |
| Published: | 12.04.2022 |
| Parties: | |
| National Case Number/Name: | AMS 22/1414 |
| European Case Law Identifier: | ECLI:NL:RBAMS:2022:1605 |
| Appeal from: | |
| Appeal to: | Not appealed |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak (in Dutch) |
| Initial Contributor: | A. Mobayen |
The District Court of Amsterdam rejected a request for interim injunction aimed at deleting the data subject's record in a credit register under Article 34 of the Dutch GDPR Implementation Act. The data subject's individual interest in the deletion was outweighed by the social interest in maintaining his registration.
English Summary
Facts
The data subject requested that his credit registration be deleted by the Credit Bank. Because the Credit Bank declined, the data subject asked the preliminary relief judge at Rb. Amsterdam for an interim injunction. He did so particularly because this registration formed an obstacle in obtaining a mortgage and his reservation period for the purchase of a house was to expire soon. The data subject and his partner wanted to purchase a house especially in light of the birth of their child.
Holding
Rb. Amsterdam refused the request for an interim injunction with regard to the removal of the data subject's record in the credit register under Article 34 of the UAVG.
The deletion of a credit register is preceded by a weighing of interests in which the individual interest of the applicant in the removal of the credit registration is weighed up against the social interest in maintaining this registration. The outcome of this balancing of interests was that it was still too early to state that the registration was disproportionate just one year after the debt had been repaid.
The preliminary relief judge also took other circumstances of the case into account, such as the data subject's fault in incurring his debts and the fact that he had only recently become financially stable. The court also noted that the measure requested by the data subject is not really an interim injunction. The consequences would be irreversible because he would secure a mortgage as a result.
However, despite the refusal to issue an interim injunction at this moment, the court pointed out that it does not necessarily mean that the data subject's record should stay in place for another four years.
Comment
The judgment of the preliminary relief judge has a provisional character and does not bind the court in any proceedings on the merits.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
Authority Court of Amsterdam Date of judgment 24-03-2022 Publication date 12-04-2022 Case number AMS 22/1414 Jurisdictions Administrative law Special features First instance - single interim relief Indication of contents Preliminary injunction pending objection / refusal to remove BKR registration by Kredietbank Amsterdam / request on the basis of the Gdpr / College of Mayor and Aldermen is the responsible administrative body / administrative judge is competent / weighing of interests to the disadvantage of the applicant Sites Rechtspraak.nl Enriched pronunciation Pronunciation COURT OF AMSTERDAM Administrative law case number: AMS 22/1414 judgment of the preliminary relief judge of 24 march 2022 in the case between [applicant] , from Amsterdam, applicant (delegate: mr.C.B.G.M. Foolen), and the college of mayor and aldermen of the municipality of Amsterdam, defendant. Process flow In the decision of 23 February 2022 (the contested decision), the defendant refused to remove the applicant's registration in the Central Credit Information System (CKI) of the Credit Registration Office (BKR). The applicant lodged an objection to that decision. He applied to the preliminary relief judge to make an interim injunction, which is intended to require the defendant to remove the applicant's BCR registration with immediate effect. The preliminary relief judge considered the application with extra priority at a hearing on 22 March 2022. The applicant appeared, assisted by his authorised representative. No one appeared on behalf of the defendant. Considerations 1. The judgment of the preliminary relief judge is provisional in nature and does not bind the court in (possibly) proceedings on the merits. Facts and circumstances 2.1. The applicant had problematic debts and was placed under protection with effect from 26 June 2018. On 16 September 2019, the applicant received a restructuring loan from Kredietbank Amsterdam to repay his debts. The Applicant has accelerated repayment of this remediation credit, with which the credit was repaid in full on 31 March 2021. The administration was lifted on 12 May 2021. 2.2. The applicant lives with his partner in a rented house in Amsterdam. On 27 January 2022, they signed a purchase agreement for a house in Purmerend. Several mortgage lenders have refused to provide them with a mortgage, because the applicant with a debt settlement is registered with the BKR. The reservation of financing that the applicant and his partner made when purchasing the house expires, after extension, on 28 March 2022. The applicant and his partner had their first child on 14 March 2022. The defendant's position 3.1. In the contested decision, the defendant weighed up the interests of the applicant against the social interest in maintaining that registration. The defendant has come to the conclusion that maintaining the BKR registration is not disproportionate. 3.2. Because the applicant only submitted his application for interim relief on 14 March 2022 and his reservation of funding expires on 28 March 2022, the hearing of the case is already scheduled for a hearing by one week on 22 March 2022. The defendant indicated that he could not respond to the application at such short notice and for that reason no representative of the defendant was present at the hearing. Is the administrative court competent? 4.1. Like the preliminary relief judge of the District Court of Zeeland-West-Brabant1, this preliminary relief judge is of the opinion that the administrative court has the power to decide on the application for an interim injunction in a case such as this. 4.2. Under the Municipal Debt Assistance Act, the defendant is responsible for the debt assistance of the residents of the municipality of Amsterdam. The defendant mandated this jurisdiction to Kredietbank Amsterdam. In the exercise of this power, Kredietbank Amsterdam therefore acts on behalf of the defendant. 4.3. The request to delete the BKR registration must be regarded as a request under the General Data Protection Regulation (GDPR). Article 34 of the Gdpr Implementation Act states that a decision on such a request by an administrative body must be regarded as a decision within the meaning of the General Administrative Law Act. Therefore, the administrative procedure applies to the contested decision. Assessment by the preliminary relief judge 5. According to the legislative history, the purpose of credit registration is twofold: on the one hand, to protect consumers against over-crediting and, on the other hand, to protect providers of credit against borrowers who have been found not to be able to repay their loan. Payment arrears or other irregularities that arise during the term of a credit agreement are registered by the BKR. 6. In the context of a request for removal of the BKR registration on the basis of the GDPR, the credit provider, in this case the defendant, must respond to the interests raised by the data subject in connection with his specific situation. Circumstances that may play a role in this assessment include: - the amount of debt that has been discharged; - whether any payment arrangement has been properly complied with; - the reason for the delay and the degree of culpability; - the current financial situation of the person concerned and if it is stable again, for how long; - whether the person concerned has other debts; - whether there has been a serious (structural or non-structural) default; - the fact that the person concerned cannot wait with the loan (for example for the purchase of a home) until the five-year period has expired (for example, due to family and living situation); - the passage of time since the redemption of the debt. 7. It is clear to the preliminary relief judge that the applicant has a significant personal interest in deleting his BKR registration. The applicant and his partner have just had a baby and live in a 45-square-metre town apartment, with two small bedrooms, on the third floor. Their offer for a larger single-family home in Purmerend has been accepted, but they cannot yet get a mortgage because of the applicant's BKR registration. 8. However, the judge hearing the application for interim measures sees no reason to grant an interim injunction in this case. The justification for this is as follows. 9. At a young age, the Applicant incurred a large debt totalling € 28,011.31. According to the applicant, the incurrence of this debt is largely due to the fact that his Wajong benefit continued for a year while he was no longer entitled to it, because he now had a job. The applicant has not succeeded in repaying this debt to the Uwv in monthly installments and as a result other debts have arisen. This explanation has not shown that the origin of this debt cannot be blamed on the applicant, or can only to a limited extent. 10. The five-year period, which is intended, inter alia, to protect other credit institutions such as mortgage lenders, started on 31 March 2021 and therefore runs for less than a year. Although the applicant and his partner now both have a permanent job with a median income and have savings, the stable financial situation is therefore only recent. 11. In addition, the provision requested by the applicant, namely the immediate removal of his BKR registration, is not really an interim injunction. Although the provision would lapse again after the publication of the decision on objection and would be an interim injunction in that sense, the consequences of the provision, namely that the applicant will have received a mortgage, will no longer be reversed. That was also acknowledged at the hearing by the applicant's representative. The financial consequences of the requested provision are therefore not provisional but definitive. 12. The judge hearing the application for interim measures realises that the applicant's living situation with his partner and child is certainly not ideal, but also not so bad that there is a situation that is no longer sustainable in the short term. There will also only be a three-person household from 14 March 2022. The rejection of the application for an interim injunction certainly does not mean that the preliminary relief judge is of the opinion that the BKR registration must remain in place for another four years. It only means that now, one year after the repayment of the debt, it is still too early to say in the context of a provisional injunction that the retention of the BKR registration is disproportionate. Conclusion 13. The court hearing the application for interim measures rejects the application. There is no reason to order costs. Decision The preliminary relief judge rejects the application for interim relief. This ruling was made by H.J. Tijselink, preliminary relief judge, in the presence of Mr F.P. van Straelen, registrar. The ruling was pronounced in public on March 24, 2022. registrar preliminary relief judge A copy of this judgment has been sent to the parties at: There is no appeal or opposition to this decision.
