Rb. Amsterdam - C/13/722086 / KG ZA 22-759 AB/MB

Rb. Amsterdam - C/13/722086 / KG ZA 22-759 AB/MB
Court:	Rb. Amsterdam (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 17 GDPR Article 21(1) GDPR
Decided:	16.09.2022
Published:	19.09.2022
Parties:	ING
National Case Number/Name:	C/13/722086 / KG ZA 22-759 AB/MB
European Case Law Identifier:	ECLI:NL:RBAMS:2022:5506
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Privacy Web (in Dutch)
Initial Contributor:	Enzo Marquet

A Dutch District Court held that a data subject cannot demand to have their negative credit-worthiness registration deleted for up to 5 years after the last unpaid debt. The protection of credit institutions and of the data subject itself outweighs the fundamental freedom.

English Summary

Facts

The data subject has been registered at 'Bureau Krediet Registratie' (BKR, an agency for mortgage registration) by the controller (ING Bank). The registration meant the data subject was a high risk profile and as such, she would have trouble receiving mortgages.

The data subject demanded that this registration would be fully deleted in line with Article 17 GDPR and objected to further processing in line with Article 21 GDPR. She stated that she had regained her financial stability since 2020 and would move to a better house, which is why she needed a new mortgage.

The controller said that after doing a balancing test, they deemed it was not obliged to delete the registration.

Holding

The District Court held that under [[Article 21#1 GDPR | Article 21(1) GDPR]], data subject have the right to object to processing if they provide concrete reasons for their 'specific situation'. After this objection, controllers must balance their interest against the interest of the data subject.

In this case, the fundamental freedoms of the data subject must be weighted against the protection of the data subject against over financing and the warning of other credit providers.

The District Court held that even though the data subject had stabilised her financial position since 2020, a duration of 5 years of stability (i.e. having no unpaid debt) is proportionate and commonly accepted. This protects both credit providers against excessive risks and the data subjects against themselves.

As such, no infraction of the GDPR was found.

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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.

verdict
COURT OF AMSTERDAM

Private law division, civil preliminary relief judge

case number / roll number: C/13/722086 / KG ZA 22-759 AB/MB

Judgment in summary proceedings of 16 September 2022

[plaintiff]
,
residing at [residence] ,
plaintiff by summons dated August 31, 2022,
lawyer mr. M. de Boorder in The Hague,

the limited liability company

ING BANK N.V.,
Based in Amsterdam,
defendant,
lawyer mr. D.J. Posthuma in Amsterdam.

The parties will hereinafter be referred to as [claimant] and ING.

The procedure

At the hearing on September 7, 2022, [plaintiff] explained the claim as described in the summons. ING has put forward a defense on the basis of a document submitted in advance on the 'explanation of the framework'.
Both parties have submitted written documents and a pleading note.
The following were present at the meeting:

- [plaintiff] and mr. de Boorder;
- [name] on behalf of ING with mr. Posthuma.
Verdict is set for today.

The facts

2.1.
[Buyer] signed an apartment right purchase contract on July 19, 2022. It concerns the neighbor's house with a living area of 53 m2 instead of the 35 m2 in which she now lives.

2.2. Until now, a registration in the Central Credit Information System (CKI) reported by ING to the Credit Registration Bureau (BKR) has been an obstacle to financing the new home. It concerns a backlog code (A), placed on May 28, 2018, with special code 2, placed on February 21, 2019. The end date is September 22, 2020.

The review

4.1. [plaintiff], whose personal data is registered with the BKR, has the right to erasure of data as referred to in Article 17 AVG and the right of objection as referred to in Article 21 AVG.

4.2.In a somewhat woolly correspondence with ING, Dynamiet.nl asked on behalf of [claimant] what information ING needed to get rid of the A3 coding that was initially placed. ING subsequently changed the A3 coding to A2 and announced on 28 July 2022 that the weighing up of interests to remove the complete registration was not in favor of [plaintiff]. That response must be regarded as a rejection of a request as referred to in Article 21 GDPR.

4.3.
[plaintiff] must have access to financing in the short term for the house she has bought. She therefore no longer has time to wait for the decision on a petition to be submitted to the court as referred to in Article 35 of the UAVG. It therefore has a sufficiently urgent interest in these preliminary relief proceedings, in which it must be considered whether it is sufficiently plausible that the court would have granted the request.

4.4.Art. 21 para. 1 GDPR provides that the rightholder has the right to object at any time to data processing for reasons related to his "specific situation". This stipulates that it is up to the rightholder to state specific reasons for that objection and to demonstrate if necessary. If the rightholder objects, the person responsible for the processing will either have to invoke and, if necessary, demonstrate compelling legitimate grounds for the processing, which override the interests, rights and freedoms of the person concerned, or the processing of the personal data to strike. This is therefore essentially no different division of the obligation to provide and the burden of proof than that adopted by the Supreme Court in the Santander decision (ECLI:NL:HR:2011:BQ8097), namely that it is in the first instance up to the rightholder to provide further information. which may lead to a re-balancing of interests (cf. Conclusion AG, point 2.34, to HR 3 December 2021, ECLI:NL:HR:2021:1814).

This renewed weighing of interests will be more specific in nature and more focused on the current circumstances of the rightholder than the earlier weighing of interests, which would have had a somewhat general character. Facts and circumstances that occurred after registration can therefore also be taken into account in this assessment. Such registration and enforcement must also comply with the principles of proportionality and subsidiarity. This means that the infringement of the interests of the data subject is not disproportionate to the purpose of the processing and that the purpose for which the personal data are processed cannot reasonably be achieved in another way that is less detrimental to the data subject (subsidiarity principle). See the Santander decision.
On the basis of this balancing of interests, the court ultimately assesses whether the controller has made it plausible that his compelling legitimate interests - the dual purpose of the credit registration: protecting the consumer against excessive credit and warning other credit institutions - outweigh in the specific case. the interests or fundamental rights and freedoms of the data subject.

4.6. It appears from the overviews submitted by ING that [claimant] was structurally overdrawn in the years 2016 to 2018 and that from May 2017 to February 2019 it was requested to make up the balance deficit. In April 2019 she made a payment arrangement with Vesting Finance. In July 2020, a final amount of € 31 was outstanding, which she paid after a summons on September 22, 2020. This is in line with [plaintiff]'s story that she experienced a very chaotic time, in which she collapsed at work after a broken relationship, with all the associated problems. She then began a long journey, receiving both mental and budget technical support, with the result that she had fully repaid these and other debts in May 2020 and has been debt-free ever since.

4.7.It appears from this course of events that, in view of the dual purpose of the credit registration, there was every reason at the time to register [plaintiff]. has pointed out that it has been in a stable financial situation since May 2020, but a notification is not immediately canceled once the person concerned has had a chance to improve his life. In principle, a period of five years applies in which no new debts are left unpaid. Only two years have passed here. There is no other method of registration and that registration is also not disproportionate in this case, in view of the background of the notification and the infringement of the interest of [claimant], namely that she cannot yet move to a better home. .

4.8. All in all, the dual purpose of credit registration here outweighs the interests of [plaintiff] and the judge on the merits is not expected to think otherwise. The requested facilities will therefore be refused.

4.9.
[Buyer] is ordered to pay the costs of the proceedings as the unsuccessful party. The costs on the part of ING are estimated at:
- court fee € 676,00
- lawyer's salary 1,016.00
Total €1,692.00

The decision
The preliminary relief judge

5.1.refuses the requested facilities,

5.2. Orders [plaintiff] to pay the legal costs on the part of ING and estimated at € 1,692.00,

5.3. orders [plaintiff] to pay the costs incurred after this judgment, estimated at € 163.00 for lawyer's salary, to be increased by € 85.00 and the costs of the writ of service if this judgment is served,

5.4. declares these cost orders to be provisionally enforceable.

This judgment was rendered by mr. A.J. Beukenhorst, judge in preliminary relief proceedings, assisted by mr. M. Balk, clerk of the court, and pronounced in public on September 16, 2022.n