Rb. Den Haag - C-09-608582-HA RK 21-101
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| Rb. Den Haag - C-09-608582-HA RK 21-101 | |
|---|---|
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| Court: | Rb. Den Haag (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(f) GDPR Article 17(1) GDPR Article 21(1) GDPR Article 35 UAVG |
| Decided: | 18.11.2021 |
| Published: | 07.12.2021 |
| Parties: | Defam |
| National Case Number/Name: | C-09-608582-HA RK 21-101 |
| European Case Law Identifier: | ECLI:NL:RBDHA:2021:13450 |
| Appeal from: | |
| Appeal to: | Not appealed |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | Giel Ritzen |
The District Court Den Haag considered that, although data subject’s appeal was admissible, the controller’s legitimate interests overrode the interests of the data subject to have their registration removed from the credit register, pursuant to Article 17 GDPR.
English Summary
Facts
Controller is Defam, a credit provider. Data subject took out a credit of €10,000 for their friend, because the friend wanted to open a liquor store and did not have enough money. Data subject had to start paying off the loan from February 2014 onwards, but they did not pay the installments. After multiple payment arrears and broken payment arrangements, in December 2015, controller terminated the agreement, claimed the credit early, and registered the debt in the credit registration database (CKI) with the code “A2” (relating to data subject’s creditworthiness). After multiple payment arrangements, the debt was finally payed off on 30 January 2019. The registration of the codes relating to data subject’s creditworthiness will be deleted in January 2024.
On 22 June 2020, Coderingsvrij B.V., on behalf of the data subject, objected to the registration in the CKI and requested removal, pursuant to Article 21 GDPR and Article 17 GDPR. Data subject claimed that he is now financially stable, and want to move out of the house of the parents of their partner, which is hard because of the registration of the “A2” code in the CKI. Controller refused to do so on 8 July 2020. After data subject requested again on 15 February 2021 to have the registration removed based because data subject’s interests overrode those of the controller, controller refused again on 25 February 2021.
Then, the data subject brought the case before Court.
Holding
First, the Court considered the admissibility of data subject’s appeal. The controller argued that the appeal was inadmissible because data subject did not appeal to their rejection on 8 July 2020, within 6 weeks, pursuant to Article 35 of the General Data Protection Implementing Act (UAVG). Moreover, the controller claimed that the request of 15 February 2021 was a repeated request, based on the same grounds, and could not be considered a new request. The Court rejected the argument because controller dealt with the request of 15 February 2021 in full. Moreover, the Court considered that there were relevant new circumstances, inter alia, because data subject submitted proof with which he attempted to show how hard it was to rent an apartment with an “A2” code registration in the CKI. Hence, the Court considered that data subject’s appeal was admissible.
Second, the Court considered whether data subject’s interests overrode controller’s legitimate interest to keep the debt registered, pursuant to Article 6(1)(f) and Article 21 GDPR. In this regard, the Court noted that it understands that data subject and their family need an own living accommodation, but that data subject did not substantiate sufficiently why they are unable to acquire one with the CKI registration. According to the Court, the submitted proof did not suffice. Moreover, the Court noted that data subject repeatedly delayed, or ignored their payment obligations. Considering the problematic payment history, and the fact that data subject is financially stable for only a short period, the Court stated that termination of the CKI registration is not justified, and therefore the controller’s interests override the data subject’s interests.
Hence, the Court rejected the appeal.
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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.
Body
Court of The Hague
Date of judgment
18-11-2021
Date of publication
07-12-2021
Case number
C-09-608582-HA RK 21-101
Jurisdictions
Civil rights
Special characteristics
Claim procedure
Content indication
Request for removal of BKR registration on the basis of Articles 17 and 21 GDPR. Petition admissible (art. 35 UAVG). Request about art. 21 GDPR can be made at any time, and there is no question of a fully repeated request. The request is rejected after weighing up the interests.
Locations
Rechtspraak.nl
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Pronunciation
decisionCOURT OF THE HAGUETeam trade case number / application number: C/09/608582 / HA RK 21-101Decision of 18 November 2021 in the case of
[applicant]
, in [place], applicant, lawyer mr. C.B.G.M. Foolen in Tilburg, against DEFAM B.V., in Bunnik, defendant, lawyer mr. J.M. Penders in Nijmegen.1 The procedure1.1.The course of the procedure is apparent from: -the application of 4 March 2021, with exhibits 1 to 31, -the statement of defence, with exhibits 1 to 22, -the letter of mr. Penders of October 1, 2021, with exhibit 23 of Defam.1.2. The oral hearing of the case took place on October 7, 2021. The lawyers of both parties have submitted speaking notes, which are part of the case file. The Registrar has kept notes of what was further discussed at the hearing. 1.3. Finally, a decision has been made on this date.2 The facts 2.1. The Stichting Bureau Krediet Registratie (hereinafter: BKR) manages the Central Credit Information System (hereinafter: the CKI), a system in which payment arrears or other irregularities that arise during the term of a credit agreement with special codes. As a credit provider, Defam participates in this credit registration system of BKR. 2.2.At the end of January 2014, [applicant] took out a revolving credit with a credit limit of € 10,000 with Defam. [applicant] took out this credit for a childhood friend who wanted to start a liquor store with her boyfriend, but was short of money. At that time, [applicant] had already taken out a loan from ING for a car. Because he himself did not have much money and could not borrow another € 10,000 from ING, [applicant] turned to Defam on the advice of the boyfriend of his childhood girlfriend. [applicant] received the credit amount of € 10,000 on 28 January 2014 from Defam into his bank account. He then transferred the borrowed amount to the bank account of (the boyfriend of) his childhood girlfriend. 2.3. On the basis of the credit agreement, [applicant] had to pay € 100 monthly in repayment and interest with effect from 28 February 2014. The first two payment terms were not met. Backlogs continued to exist in 2014 and 2015. On April 7, 2015, Defam filed a arrears report with (the CKI of) BKR on this credit. The backlog was reported to have been recovered in July 2015. Shortly afterwards, backlogs arose again. On October 31, 2015, after previous reminders, Defam (again) registered a backlog (this time of more than 60 days, amounting to € 300) in the CKI (coded 'A'). 2.4. On November 17, 2015, a bailiff in At the request of Defam, he made a home visit to the house where [applicant] was registered with the municipality at the time. There the bailiff established that the windows of the house where [applicant] would be staying had been taped with newspapers. The bailiff has left a written contact request. The [applicant] did not respond to this. 2.5. After receiving two new reminders, [applicant] agreed a payment arrangement of €300 per month with Defam in December 2015. [applicant] did not comply with this payment arrangement correctly, after which Defam terminated the loan agreement and claimed the credit early. At the beginning of 2016, the bailiff informed Defam that the check in the Personal Records Database (BRP) had shown that the address of [applicant] was under investigation. At that time, no other address was known of [applicant]. 2.6. On January 27, 2016, Defam registered the claim of the credit in the CKI with a code 'A2' (note court: this registration is hereinafter referred to as 'the BKR registration' together with the arrears registrations). 2.7. On May 30, 2016, Defam summoned [applicant] to repay the debt from the credit, which as of May 23, 2016 had increased to € 10,491.84. The subdistrict court allowed Defam's claims by judgment of 9 August 2016 and ordered [applicant] to repay. The bailiff informed [applicant] of the judgment by e-mail dated 10 August 2016. 2.8.In April 2017, ING registered a arrears notification with BKR (for a registered amount of € 16,650) in connection with the loan that [applicant] had taken out with ING. 2.9.
Between December 2016 and May 2017, [applicant] paid €750 per month to the bailiff of Defam for a period of five months on the basis of a temporary payment arrangement. In May 2017, [applicant] (who had been working as an independent container fitter/welder for almost two years at that time) became unemployed. [applicant] has made a provisional payment arrangement of €750 per month for the months of June and July 2017. No new payment arrangement was agreed in August 2017. On October 31, 2017, Defam had the judgment of the subdistrict court served on [applicant].2.10.In 2018, [applicant] and Defam made a payment arrangement of €100 per month. The installments for the months of April, June and July 2018 were paid too late by [applicant]. From August 2018, [applicant] has properly complied with the payment arrangement. On January 30, 2019, [applicant] repaid the then remaining debt of € 5,494.53 in one go.2.11. Defam has registered with BKR that the credit ended on January 31, 2019. Unless changes are made, the BKR registration will be removed from the CKI in January 2024.2.12.
At the end of 2017, [applicant] entered into a relationship with Mrs. [A] (hereinafter: [A]). They have two children together, born on [date of birth 1] and [date of birth 2]. [applicant] and [A] live with their children with [A]'s parents. 2.13. By letter dated 22 June 2020, CodeeringsVrij B.V. (hereinafter: Encryption Free) on behalf of [applicant] objected to the maintenance of the BKR registration under Articles 17, 21 and 6 of the General Data Protection Regulation (GDPR) and requested its removal. In response to this request, Defam has informed [applicant] in a letter dated 8 July 2020 that it sees no reason to remove the registration. in draft) sent to Defam with the request to remove the BKR registration on the basis of a balancing of interests. 2.15.Mr. Penders replied by letter dated 25 February 2021 on behalf of Defam in response to the above request that the BKR registration will be maintained. 2.16.
[Applicant] started this application procedure at the beginning of March 2021. 3 The request 3.1.
[applicant] requests, briefly stated, that the court, by order to be declared provisionally enforceable, orders Defam to remove the BKR registration (or have it removed) within 48 hours after service of this order, on pain of a penalty of € 1,000 per day (with a maximum of € 30,000) and with an order against Defam to pay the costs of the proceedings, plus the subsequent costs and the statutory interest.3.2.
[applicant] bases his request on Article 21 paragraph 1 GDPR and the Santander decision of the Supreme Court of 9 September 2011, ECLI:NL:HR:2011:BQ8097. [applicant] argues that his legitimate interests in removing the BKR registration outweigh the interests of Defam in its enforcement. In short, the applicant submits the following in this regard. He has taken his responsibility. Due to the loss of his job in May 2017, it was difficult to pay off the debt for a while, but he eventually fulfilled his payment arrangements and repaid the entire debt to Defam in 2019. The current situation of [applicant] is not comparable to the past. He has had a permanent contract since 2019 from which he enjoys a good and stable income, while his girlfriend also has a permanent contract. Both [applicant] and his girlfriend no longer have any other debts, except for a telephone subscription on which there are no arrears. They are financially stable. [applicant] wants to move with his family to a rented house, but just as with (loans for) owner-occupied homes, the A2 coding is also an obstacle to being able to obtain a rented home in the free sector. The interest of [applicant] to get his own rented house is great, because the family currently lives in one bedroom with his parents-in-law, who are already elderly, need more peace and privacy and also want to live in a smaller house. It is not a workable situation. It is very unreasonable if [applicant] has to wait until 2024 under these circumstances before he can obtain his own housing, according to [applicant]. The family of [applicant] now lives with his partner's parents, but they have indicated that this can no longer continue.3.3. Defam puts forward a defence. The arguments of the parties are discussed in more detail below, in so far as relevant.4 The admissibility of the petition 4.1. Defam argues in the first place that [applicant]'s application must be declared inadmissible because the application is too late submitted. Defam takes the position that [applicant], on the basis of Article 35 of the Implementation Act General Data Protection Regulation (UAVG), submits a petition to the must submit to court. 4.2. The court does not follow Defam's position in this regard and considers the following in this regard. It is not in dispute between the parties that both the previous removal request of [applicant] of 22 June 2020 and his removal request of 15 February 2021 can be regarded as a request on the basis of Articles 21 and 17 of the GDPR. Pursuant to Article 21(1) of the GDPR, a data subject (here: [applicant]) has the right at any time (emphasis added) to object, on grounds relating to his particular situation, to the processing of personal data concerning him or her on the basis of – inter alia – Art. 6 para. 1 lit. f GDPR. He can link to this objection a request to delete his personal data (Article 17 paragraph 1 sub c GDPR). With regard to the further procedure after submission of such a deletion request, the GDPR and the UAVG provide, in short and insofar as relevant, that the controller (here: Defam) must respond to the request within one month and that the data subject in that case if he does not agree with the (rejection) answer, he can address the court within six weeks of receipt of the answer with a written request to order the controller to grant the (removal) request (see Articles 12). GDPR and 34 and 35 UAVG). 4.3. After the rejection of the first request (on 8 July 2020), [applicant] did not go to court. About seven months later, he made a new request to Defam based on Article 21 GDPR. However, neither the GDPR nor the UAVG states that, after a request has been rejected on the basis of Article 21 GDPR, a data subject must wait a certain time before submitting a new (deletion) request. On the contrary, Article 21 paragraph 1 of the GDPR provides, as stated above, that [applicant] may object to the BKR registration at any time, for reasons related to his specific situation. It follows from the text of the AVG and the UAVG that, in principle, a response period and, if applicable, a legal remedy period (of six weeks after receipt of the answer) will start to run. 4.4. Defam has argued that this is the case with regard to the request. of February 15, 2021 should be different, because the request of February 15, 2021 was a completely repeated request, on exactly the same grounds. The court does not follow Defam in this argument. First of all, Defam did not dismiss the request of 15 February 2021 as a repeated request, but that in a letter from its lawyer dated 25 February 2021, Defam fully substantiated this request and took into account the circumstances put forward by [applicant] in it. a trade-off between the interests of [applicant] (when the BKR registration is removed) and the interests of Defam (when it is maintained). The court also agrees with [applicant] that the request of 15 February 2021 contains relevant new circumstances compared to the earlier request of 22 June 2020 and in that respect, contrary to what Defam argues, cannot be regarded as a fully repeated request. First, between the first request (of June 22, 2021) and the new request (of February 15, 2021), [applicant] and [A] became parents of their second child (their daughter). Although the birth had already been announced in the earlier request (and the resulting lack of space in the parents-in-law's house), [applicant] actually experienced in the subsequent period the concrete consequences of the birth of his daughter for the current living situation. To that extent, there are new personal circumstances that play a role in the personal interest argued by [applicant] in removing the BKR registration (being able to acquire one's own house). In the latter context, [applicant] also submitted further negative responses from rental brokers (after July 2020) as exhibit 23 with regard to the possibility of renting with a code A2 BKR registration. Finally, the passage of time is also a relevant new circumstance compared to the previous request. After all, [applicant] has pointed out that he is financially stable from 2019. In response, Defam argued, among other things, that a period of two years since the end date of the credit is too short to assess that the problematic payment behavior of [applicant] is a thing of the past. It follows from this that Defam also included the time lapse between the submission of the new removal request (in February 2021) and the repayment of the credit (in January 2019) as a relevant circumstance in its weighing of interests. 4.5. It follows from the above that Defam's argument that the request of 15 February 2021 is meaningless because it is a repeated request cannot succeed on substantive grounds alone. The request of 15 February 2021 is a new request based on Article 21 of the GDPR, as a result of which a new response and remedy period has started. [Applicant] submitted a petition in good time – within six weeks – after receipt of Defam's reply of 22 February 2021. He can thus be received in his requests. Defam's defense of admissibility is therefore rejected. Substantive assessment of the request 4.6. The request of [applicant] must be assessed on the basis of the provisions of the GDPR. The following serves as a starting point. The BKR registration involves processing the personal data of [applicant] (Article 4 paragraphs 1 and 2 GDPR). In this context, Defam is the controller (Article 4(7) of the GDPR). Article 6(1) of the GDPR provides that processing of personal data is only permitted if at least one of the conditions stated in that article is met. One of those conditions means that the processing of personal data is lawful when it is necessary for the purposes of the legitimate interests pursued by the controller or a third party, except when – in short – the privacy interests of the data subject outweigh those interests (Article 6 para. 1 lit. f GDPR). The legality of the BKR registration is based on this basis (conclusion A-G Rank Berenschot 15 October 2021, ECLI:PHR:2021:831, 3.17). However, pursuant to Article 21(1) of the GDPR, the data subject has the right to object at any time, on grounds relating to his particular situation, to the processing of personal data concerning him/her on the basis of Article 6(1)(f) GDPR, including of profiling based on those provisions. The controller shall cease processing the personal data, unless he can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject (also Article 21(1) of the GDPR). If the objection of the data subject pursuant to Article 21(1) of the GDPR is successful, the data subject has the right to have their personal data deleted without undue delay (Article 17(1)(c) GDPR).4.7.
[applicant] invokes Article 21(1) of the GDPR. A balancing of interests will therefore have to take place on the basis of this article, between the interests in maintaining the BKR registration on the one hand and the interest of [applicant] in its removal on the other. 4.8. With regard to Defam's interest in maintaining the BKR registration the following applies. It follows from the explanation of Defam and the case law (including the Court of Appeal of The Hague, 10 November 2020, ECLI:NL:GHDHA:2020:2068) that the BKR registration aims to promote socially responsible financial services. Credit providers must obtain information about the financial position of the consumer, in order to prevent excessive lending. The BKR provides lenders with insight into the payment history of the consumer. The purpose of the BKR registration is therefore twofold. On the one hand, this aims to help protect consumers from excessive credit and other financial problems (problematic debt situations). On the other hand, the registration also aims to contribute to limiting the financial risks of lenders when granting credit and to preventing and combating abuse and fraud. These objectives also follow from the provisions of the General Regulations CKI ('AR'), to which Defam as a participant in the CKI is contractually bound towards the BKR. In accordance with the AR, Defam assumes that data from past credit agreements will be removed from the CKI five years after the actual end date of the agreement (see also Article 14 paragraph 1 AR). According to Defam, this is a reasonable period of time, which prevents people who have been in a problematic debt situation from immediately reverting to old habits and from taking out irresponsible loans. Defam has also argued that premature removal of the registration can damage the quality and usability of the CKI for lenders to gain insight into the payment history of the consumer, because this creates an incorrect picture of the real situation.4.9. that in itself it is clear that, in view of his current family and living situation, [applicant] has a great interest in acquiring his own living space, more specifically a rented house. However, [applicant] has insufficiently substantiated that and, if so, to what extent the BKR registration currently stands in the way. [applicant] has submitted various rejections from professional rental agents, who, when asked, have stated to him that because of the BKR registration, and in particular the A2 coding, he is not eligible for a rental contract. But [applicant] has insufficiently substantiated that this coding also forms an insurmountable obstacle for (all) private landlords. In addition, it has not become clear whether [applicant] could currently also qualify for a (private) rental home without BKR registration, since - as [applicant] also acknowledges - the offer on the free rental market (of which [applicant] dependent) is currently very low, especially in the lower price category. The court notes in that regard that [applicant] has not stated sufficiently concretely – nor has it substantiated – what amount he and [A] currently have available together to rent a house. During the oral hearing, [applicant] stated a maximum disposable amount for rent of €1,000, while [A] stated a maximum amount of €1,300. Moreover, none of these disposable amounts is substantiated. It is true that [applicant] has submitted documents showing the current income of him and [A] and [applicant] has also stated, with reference to the BKR overview, that they have no other debts, but [applicant] has not provided a complete documented substantiation. , provided insight into its current financial position (also with regard to costs, capital and possible debts to third parties, which – as Defam has argued – are not visible in BKR). In that regard, Defam pointed out that the credit must have been repaid in January 2019 with the help of third parties, because [applicant] did not have enough income and capital at the time. [Applicant] replied in response to this statement that the amount was paid by the childhood friend for whom he entered into the credit, and that this was therefore not a loan. However, [applicant] has not substantiated this assertion with concrete documents, so that it is impossible for Defam and the court to test whether what [applicant] states about the repayment is correct. 4.10. In the court's opinion, Defam has rightly argued that without a sufficiently complete and substantiated insight into [applicant]'s financial position, it is also impossible to properly assess whether [applicant]'s financial situation is lasting in order. That is important, since it follows from the payment history of [applicant] with regard to the credit with Defam, presented under the established facts (2.2 - 2.10) above, that [applicant] had a long period of problematic payment behavior in the past. , whereby [applicant] admittedly – as the court understands from his statement at the hearing – took out credit for another party in good faith, but quite lightly, after which payment arrears have subsequently arisen repeatedly, while [applicant] is also not available at times before (the bailiff of) Defam and Defam ultimately had to claim full credit from the subdistrict court. Even during the last repayment arrangement, [applicant] paid a repayment term too late on a number of times. It is true that [applicant] has correctly fulfilled his payment obligations from August 2018 and he has repaid the credit in full fairly soon afterwards, in January 2019, but the court finds - in view of the long problematic payment history outlined above - the now elapsed period of just under three The years between the repayment and this judgment are too short to come to the conclusion that [applicant] has already demonstrated such a sustainable stable financial situation that termination of the BKR registration is justified. As stated, it is also taken into account that [applicant] has not provided insight into his full financial situation, so that it is difficult to test whether and, if so, from when [applicant] is completely debt-free. 4.11. The court agrees with Defam that, in view of all of the foregoing, Defam's legitimate interests in maintaining the BKR registration, as outlined under 4.8, outweigh the interests of [applicant] in removing the registration. The removal request of [applicant] is therefore rejected.4.12.However, superfluously, the court also notes the following. As follows from the assessment given above, the facts and circumstances presented by [applicant] for now in these proceedings are insufficient to proceed with the removal of the BKR registration. However, the court understood from the statements of [applicant] and [A] at the hearing that in about a year's time there will probably be changes in their personal situation, also from a financial point of view, since their son will then reach school age and they may have less money. spend on childcare, which can also have positive consequences for their disposable rental budget and possibly also their financial opportunities on the free rental market. In response to this, Defam stated – rightly – that it cannot anticipate a situation in the future now. and that Defam will always have to take into account all the circumstances of the case at that time when assessing whether there is a reason to terminate the BKR registration earlier than five years. Defam also stated that it is important to her that this case had been problematic from the start and that it took 2.5 years before the subdistrict court judge's verdict was complied with. This does not alter the fact that, in the opinion of the District Court, in the light of what has been discussed during the session, it is in any way conceivable that, if the changes already announced by [applicant] should make him decide by that time to make a new request on the basis of of Article 21 GDPR, this gives Defam reason to make a new weighing of interests, based on the circumstances then. The court notes, however, that in that case, against the background of this decision or in the course of [the applicant], it is up to [applicant] to at least provide evidence with his request that he has a stable financial situation. 4.13. If the party found in the wrong, [applicant] will be ordered to pay the legal costs, estimated on the part of Defam at € 1,793 (€ 667 in court fees and € (2.0 points x € 563) in lawyer's salary).4.14. There is no ground for an order for subsequent costs, as the costs order also results in an enforceable title for these additional costs (Supreme Court 19 March 2010, ECLI:NL:HR:2010:BL1116). As claimed, the court will estimate the subsequent costs in accordance with the liquidation rate. 4.15. The statutory interest on the costs of the proceedings will be awarded from the date stated below in the decision.5 The decisionThe court5.1.rejects the requests;5.2.orders [applicant] to pay the legal costs to Defam within fourteen days of service of this decision payable, estimated on the part of Defam at €1,793 in costs to date and at €163 in subsequent costs, to be increased by €85 upon service; provides that in the event of late payment, the costs will be increased by the statutory interest (as referred to in Article 6:119 of the Dutch Civil Code) from the fifteenth day after notification until the day of full payment; was given by mr. TF Hesselink and pronounced in public on November 18, 2021.11type: 2431coll:
