Rb. Limburg - C/03/278775 / HA RK 20-119

Rb. Limburg - C/03/278775 / HA RK 20-119
Court:	Rb. Limburg (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 35 GDPR
Decided:	04.09.2020
Published:	16.09.2020
Parties:	COOPERATIVE RABOBANK UA
National Case Number/Name:	C/03/278775 / HA RK 20-119
European Case Law Identifier:	ECLI:NL:RBLIM:2020:6702
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Court of Limburg found that it was disproportionate for a Credit Registration Office to leave a claimant registered with them, in the instance where the claimant had already paid back their arrear and the credit registration was preventing them from obtaining housing finance.

English Summary

Facts

The claimant was registered in the Central Credit Information System (hereinafter CKI) of the BKR (Credit Registration Office) because of two instances on which he had defaulted on repaying an overdraft. BKR then issued the claimant with a revolving credit, set to begin in 2012 and end in 2019, and visible until 2024. The registration of the revolving credit contained an arrears code (signalling that money is owed and should have been paid earlier) which would remain visible on his account until 2021. When the claimant paid back the full amount in 2020, he asked to have the arrear code removed from his file. Rabobank refused to remove the code, which led to the complainant filing a complaint.

Pursuant to Article 21(1) of the GDPR, persons such as [the claimant] can object to the processing of their personal data on the basis of Article 6(1)(e) or (f) GDPR due to their specific situation . The controller, in this case Rabobank, must honor the objection, unless it submits compelling legitimate grounds for the processing that outweigh the interests, rights and freedoms of the persons concerned. If the objection is granted, the controller must delete the personal data without unreasonable delay. If the controller does not honor the objection, the data subject may, if necessary, ask the court for an effective remedy (Article 79 GDPR and Article 35 UAVG). The court assesses whether the controller has demonstrated that its compelling legitimate interests (in this case the dual purpose of the credit registration: to protect the consumer against excessive credit and to warn other credit institutions) in this specific case outweigh the interests or the fundamental rights and freedoms of the data subject (recital 69 GDPR).

Dispute

Whether it was proportionate for the BKR registration to be maintained, given the fact that the claimant had paid back her arrear and the current registration was preventing her from taking out housing credit?

Holding

After weighing up the interests involved, Rabobank had, on the basis of the payment behavior known to it of the claimant with regard to both the revolving credit and making up the arrears on the payment account, sufficient reasons to register the special feature code. However, the claimant has argued that maintaining the BKR registration is not proportional because her and her partner would like to move with the claimant's two children from a rented house to a house for sale. She and her partner can currently no longer obtain a credit in any way or take out a mortgage.

In order to prevent the claimant and her partner from obtaining housing financing after August 2021, the court found that maintaining the credit registration, despite the arrear having paid back, in this specific situation was disproportionate.

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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.

COURT OF LIMBURG
Civil right

Seat in Maastricht

case number / application number: C / 03/278775 / HA RK 20-119

Order of September 4, 2020

in the case of

[applicant] ,

residing in [residence],

applicant,

authorized representative B. de Haan LL.B.

against

COOPERATIVE RABOBANK UA ,

established in Utrecht,

defendant,

lawyer mr. PW van Kooij.

The parties are further referred to as [applicant] and Rabobank.

1The procedure
1.1.
The course of the procedure is evidenced by:

-
the petition with annexes 1 to 21, as received on 8 June 2020

-
the statement of defense, received on August 4, 2020

-
the e-mail message with attachments, submitted on behalf of [applicant] on 10 August 2020

-
the oral hearing on 11 August 2020.

1.2.
The following appeared on the occasion of the oral hearing:

-
[applicant], assisted by mr. Rooster

-
mr. DS Volleberg, on behalf of mr. Van der Kooij, representing Rabobank.

1.3.
After the oral hearing, the parties tried to settle the dispute amicably. In an email of August 12, 2020 (2:48 p.m.), Mr. De Haan stated that the parties were unable to reach an amicable settlement.

1.4.
Subsequently, decision was determined to date.

2The facts
2.1.
[applicant] is registered in the Central Credit Information System (hereinafter CKI) of the BKR (Credit Registration Office) because of two credits, with contract numbers 999959062 (a revolving credit from 2010 of initially € 2,500.00) and 102794979 (a payment account with in 2009 agreed overdraft of € 500.00).

2.2.
The registration of the revolving credit now contains a so-called arrears code, placed on 12 June 2012 and a special code 2, placed on 22 May 2013. After [applicant], despite various reminders from Rabobank, had not fully complied with its obligations, Rabobank canceled the credit at 21 May 2013 and Rabobank has transferred its claim under this agreement to the bailiff. In 2016, [the applicant] made a payment arrangement with the bailiff, which was completed in August 2019. Initially, a special feature code 3 was placed on this contract, but this was removed by Rabobank at the request of [applicant] in connection with full payment of the claim. The registration date has an end date of August 28, 2019 and will remain visible until August 2024.

2.3.
The registration of the payment account also has an arrears code, placed on 24 July 2013 with special code 3, placed on 30 August 2016. On that date, [applicant] had a negative balance on the payment account of € 1,008. This negative balance has been debited by Rabobank and the outstanding balance has been waived. The registration has an end date of August 30, 2016 and will remain visible until August 2021. In June 2020, after repeated requests from [applicant] to Rabobank to indicate how If this amount could still be paid, [applicant] was allowed to receive a response from Rabobank, after which it paid the amount in full to Rabobank on 5 June 2020.

2.4.
Despite repeated requests from [applicant], Rabobank continues to refuse to change this registration, which is reason for [applicant] to submit this request.

3The request and the defense
3.1.
[applicant] requests the court to:

I. Primarily: to order Rabobank within two days after the decision to be made in this decision, the mentioned registrations, or the (special) coding (s) A and / or 2 and / or 3, in the CKI with contract numbers 999959062 and / or 102794979 in the name of [applicant] to be removed or to have it removed;

In the alternative: to recommend Rabobank to limit the duration of the registration of the aforementioned registrations, or the (special) coding (s) A and / or 2 and / or 3, in the CKI with contract numbers 999959062 and / or 102794979 to two years , in the sense that Rabobank will delete the registrations (the court reads: deleted) as of August 2021;

Extremely in the alternative: to make a decision if the court will be informed in good justice (the court reads: contend) that it is appropriate;

II. to determine that Rabobank will pay the conviction referred to under I. on pain of a penalty of € 1,000 for each day that Rabobank does not comply with this conviction, with a maximum of € 50,000;

III. Order Rabobank to pay the costs of these proceedings, including the representative's salary and subsequent costs.

3.2.
Rabobank has put up a defense. Rabobank concludes that the application should be rejected as unfounded and / or unproven, with [applicant] being ordered to pay the costs of the proceedings.

3.3.
The arguments of the parties are discussed in more detail below, insofar as they are relevant to the assessment.

4The assessment
4.1.
The General Data Protection Regulation (hereinafter referred to as: AVG ) applies to a request to delete a BKR registration . A person whose data has been registered can make a request on the basis of article 21 jo. 79 AVG and Article 35 paragraph 2 Implementation AVG (hereinafter: UAVG) to the person who registered the personal information to remove it. If this request is rejected, a petition must be submitted to the court on the basis of Article 35 paragraph 2 UAVG within six weeks of receipt of this answer.

4.2.
Rabobank responded to [applicant's] request for removal on 29 April 2020. The six-week period will then expire on 10 June 2020. The request of [applicant] was received at the registry on time (on 8 June 2020 by fax). [applicant] is therefore admissible in her request.

4.3.
Pursuant to Article 21 (1) of the GDPR , persons such as [the applicant] can object to the processing of their personal data on the basis of Article 6 (1) (e) or (f) GDPR due to their specific situation . The controller, in this case Rabobank, must honor the objection, unless it submits compelling legitimate grounds for the processing that outweigh the interests, rights and freedoms of the persons concerned. If the objection is granted, the controller must delete the personal data without unreasonable delay. If the controller does not honor the objection, the data subject may, if necessary, ask the court for an effective remedy (Article 79 GDPRand Article 35 UAVG). The court assesses whether the controller has demonstrated that its compelling legitimate interests (in this case the dual purpose of the credit registration: to protect the consumer against excessive credit and to warn other credit institutions) in this specific case outweigh the interests or the fundamental rights and freedoms of the data subject (recital 69 GDPR ).

4.4.
This assessment must be made on the basis of the facts and circumstances known at the time of the assessment, so that facts and circumstances that only occurred after registration can be taken into account. Such a registration and its enforcement must comply with the principles of proportionality and subsidiarity in such a way that the infringement of the interests of the data subjects involved in the processing of personal data, in this case [the applicant], is not disproportionate to the processing purpose (principle of proportionality) and that the purpose for which the personal data are processed cannot reasonably be achieved in another way that is less disadvantageous for the person involved in the processing of personal data (principle of subsidiarity).Reference is made to the judgment of the Supreme Court of 9 September 2011 (ECLI: NL: HR: 2011: BQ8097).

4.5.
Rabobank states that it has fully complied with its obligations under the Financial Supervision Act (Section 4:32). Adding code 3 to both registrations means that an amount has been waived or written off. [Applicant] has been informed several times in advance of possible BKR reports. The arrears on the payment account were debited and the outstanding balance waived, which is why this registration was deregistered with a code 3 as of 30 August 2016, see marginal 2.2 statement of defense. It took [the applicant] three years to make an arrangement with regard to the revolving credit and then another 3 years to pay the arrangement. Rabobank does not want to remove it in connection with the payment behavior of [applicant] in the past. Furthermore, Rabobank cannot delete the registration.It can, however, request the BKR to take care of this. If the court allows the request to remove the registration, Rabobank will comply with that conviction. For that reason, there is no ground for granting the claim with regard to the imposition of a penalty.

4.6.
[Applicant] has argued that maintaining the BKR registration is not proportional. [Applicant] and her partner would like to move with [applicant] 's two children from a rented house to a house for sale. She and her partner can currently no longer obtain a credit in any way or take out a mortgage, while the objective of such a registration is to contribute to limiting the risks for people with a credit and excessive lending to those involved to prevent, as well as to prevent and combat abuse and fraud in financial transactions. In the case of [applicant] there is no question of over-lending, abuse or fraud. She has taken her responsibility and paid for everything.The infringement of its interests is disproportionate to the interest with which the registration is served.

4.7.
The following is important for the assessment in this case.

After weighing up the interests involved, Rabobank had, on the basis of the payment behavior known to it of [applicant] with regard to both the revolving credit and making up the arrears on the payment account, sufficient reasons to register the special feature code. There were backlogs and these were not, or not sufficiently, made up / cleared. The fact that this happened must remain at the expense and risk of [the applicant]. The primary request will therefore be rejected.

4.8.
It must now be assessed whether the BKR registration and the special coding are still proportional in the light of the current wishes of [applicant].

It has been undisputed that private problems, how they arose can be left open, resulted in psychological problems for [the applicant] as a result of which she became incapacitated for work. Due to the loss of her work, she could not (fully) meet her regular repayment obligations at that time. She started looking for help for her psychological problems and in 2016 she was able to make a repayment arrangement with the bailiff of € 100 per month that she fulfilled. The fact that this payment arrangement - concluded with the bailiff who represented Rabobank at that time - had a longer term than Rabobank wished cannot be criticized by [the applicant].From what she has stated without being contradicted with regard to her incapacity for work and financial capacity, it appears that she has made sufficient efforts to pay off the outstanding claims.

4.9.
All arrears (even if this was not always done on time) have now been fully paid. [Applicant] is now extending her 12-hour employment contract. However, the registrations continue to hinder her, especially with regard to obtaining (full) financing for another house.

4.10.
In order to prevent [applicant] and her partner from obtaining housing financing after August 2021, the court finds in this specific situation disproportionate. Reason for the court to order Rabobank to have the BKR registration (with special claims A and / or 2 and / or 3) removed, as of 1 August 2021, as [applicant] has claimed in the alternative.

4.11.
Now that Rabobank has indicated that it will comply with a removal order, it will not be sentenced to pay a penalty.

4.12.
Now that the parties have been partially in the right and partially in the wrong, the costs of these proceedings will be compensated in the sense that each party bears its own costs.

5The decision
The court

5.1.
orders Rabobank to instruct BKR to place the aforementioned registrations, or the (special) coding (s) A and / or 2 and / or 3, in the CKI with contract numbers 999959062 and / or 102794979 in the name of [applicant] to be removed or have removed from 1 August 2021,

5.2.
offsets the costs of these proceedings so that each party bears its own costs,

5.3.
rejects the more or different requested.

This decision was made by mr. WE Elzinga and pronounced in public on September 4, 2020