Rb. Oost-Brabant - 19/1169: Difference between revisions

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! colspan="2" |Rb. Oost-Brabant - 19/1169
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|Jurisdiction:||[[Data Protection in the Netherlands|Netherlands]]
|Jurisdiction:||[[Data Protection in the Netherlands|Netherlands]]
|-
|-
|Relevant Law:||[[Article 6 GDPR#1e|Article 6(1)(e) GDPR]]
|Relevant Law:||[[Article 6 GDPR#1e|Article 6(1)(e) GDPR]][[Category:Article 6(1)(e) GDPR]]
[[Article 21 GDPR#1|Article 21(1) GDPR]]


[[Article 79 GDPR]]
[[Article 17 GDPR#3|Article 17(3) GDPR]][[Category:Article 17(3) GDPR]]


[[Article 21 GDPR#r69|Recital 69 GDPR]]
[[Article 82 GDPR]][[Category:82 GDPR]]
 
Article 35 of the Dutch GDPR Implementation Act (“UAVG”)
|-
|-
|Decided:||7.5.2020
|Decided:||28.4.2020 [[Category:2020]]
|-
|-
|Published:||11.5.2020
|Published:||26.5.2020
|-
|-
|Parties:||[https://www.rabobank.com/en/about-rabobank/cooperative/index.html COÖPERATIVE RABOBANK U.A.]
|Parties:||[[[https://www.helmond.nl/english/Home Municipality of Helmond]
|-
|-
|National Case Number:||C/01/356292 / KG ZA 20-141
|National Case Number:||19/1169
|-
|-
|European Case Law Identifier:||<small>ECLI:NL:RBOBR:2020:2534</small>
|European Case Law Identifier:||<small>ECLI:NL:RBOBR:2020:2437</small>
|-
|-
|Appeal from:||n/a
|Appeal from:||n/a
|-
|-
|Language:||Dutch
|Language:||Dutch [[Category:Dutch]]
|-
|-
|Original Source:||[https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBOBR:2020:2534&showbutton=true&keyword=AVG de Rechtspraak (in NL)]
|Original Source:||[https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBOBR:2020:2437&showbutton=true&keyword=avg de Rechtspraak (in NL)]
|}The Court of First Instance of Eastern Brabant in the Netherlands (Rb. Oost-Brabant) ruled against claimant’s request to erase his personal from all systems of the municipality of Helmond. The Court also found that the claimant was not entitled to compensation from the municipality because his personal data was processed in accordance with the GDPR and the local administrative law.
|}
 
The Court of First Instance of Eastern Brabant in the Netherlands (Rb. Oost-Brabant) ruled against claimant’s request to erase his personal from all systems of the municipality of Helmond. The Court also found that the claimant was not entitled to compensation from the municipality because his personal data was processed in accordance with the GDPR and the local administrative law.
 
==English Summary==
==English Summary==
===Facts===
===Facts===
Rabobank granted the plaintiffs two mortgage loans. There were arrears about which Rabobank sent letters to the plaintiffs. In these letters, Rabobank stated that if a backlog of three months or more were to arise, this would be reported to the Credit Registration Office (BKR). The plaintiffs failed to pay the arrears. They tried to refinance the house through an intermediate but this was not possible due to the BKR registration. They asked the removal of this registration claiming that Rabobank did it wrongly.
On 5 October 2018 the executive board refused to erase personal data of the claimant processed by the municipality of Helmond and refused to compensate damages to the claimant. On 8 March 2020 the board declared the claimant’s objection unfounded. The claimant has launched an appeal against this decision.


Rabobank informed them that the request was rejected. The plaintiffs claimed that on the basis of a balancing of interests, the registration should be deleted because the purpose of the registration no longer outweighs the interests of the plaintiffs upon its removal. They also claimed urgent interest in the removal.
===Dispute===
===Dispute===
The Court had to decide whether the board’s rejection of 8 March 2020 was in line with the administrative law and rule on the GDPR-based right of erasure and right to compensation requests.
===Holding===
===Holding===
The Court found that the GDPR applies to the request for removal. The request shall be based on Article 21 in conjunction with Article 79 of the GDPR and Article 35(2) of the GDPR Implementation Act. If this request is rejected, a petition must be submitted to the court according to the mentioned Article 35(2). The Court also found that there was no urgent interest for the removal.
The Court found that the request to erase personal data of the claimant was invalid because this processing had been carried out in line with Article 6(1)(e) of the GDPR and couldn’t have been done in a less intrusive way. Therefore, the processing was not unlawful. So, on this point, the Court has upheld the previous decision of the board.
 
The Court rejected the claim for compensation because his personal data was processed in accordance with the GDPR and local administrative law.


The Court put forward a balancing test as required by Articles 21(1) and 6(1)(e) GDPR and Recital 69 GDPR. It found that the BKR registration was made correctly and the balancing of interest was at the disadvantage of the plaintiffs.
==Comment==
==Comment==
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==Further Resources==
==Further Resources==
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==English Machine Translation of the Decision==
==English Machine Translation of the Decision==
The decision below is a machine translation of the original. Please refer to the Dutch original for more details.<pre>
The decision below is a machine translation of the original. Please refer to the Dutch original for more details.
<pre>
Authority
Authority
     Court of East Brabant
     Court of East Brabant
Date of pronunciation
Date of pronunciation
     07-05-2020
     28-04-2020
Date of publication
Date of publication
     11-05-2020  
     26-05-2020  
Case number
Case number
     C/01/356292 / KG ZA 20-141
     19/1169
Jurisdictions
Jurisdictions
     Civil Justice
     Administrative law
Special features
Special features
     Interim injunction
     First instance - multiple
Content indication
Content indication


     Interlocutory proceedings. Plaintiffs demand the removal of the BKR registration. The Court in preliminary relief proceedings declared their claim inadmissible and ruled that there was no urgency and that the claim had also been rejected on substantive grounds.
     AVG. Processing personal data. VNG Forum
Sites
    Rechtspraak.nl
    Enriched pronunciation


judgment
Ruling
EASTERN BRABANT COURT
EASTERN BRABANT COURT


Civil Justice
Seat 's-Hertogenbosch
 
Administrative law


Seat 's-Hertogenbosch
Case number: SHE 19/1169
judgment of the multiple chamber of 28 April 2020 in the case between
[plaintiff] , in [residence] , plaintiff
 
(Agent: N.G.A. Voorbach),
 
and
the College of Mayor and Aldermen of the Municipality of Helmond, the College
 
(Agents: P. Helmus and E. Steijn).
Proceedings


Case number / reel number: C/01/356292 / KG ZA 20-141
By decision of 5 October 2018 (the primary decision), the Municipal Executive refused to delete personal data of the claimant processed by the Municipality of Helmond and refused to award damages to the claimant.


Judgment in preliminary relief proceedings of 7 May 2020
By decision on objection of 8 March 2019 (the contested decision), the Municipal Executive declared the claimant's objection unfounded.


in the matter of
The claimant lodged an appeal against the contested decision.
1 [plaintiff 1] ,


living at [residence] ,
The Board has submitted a statement of defence.


2. [plaintiff 2]
The case was heard at the hearing on 4 March 2020. The plaintiff attended the hearing, assisted by his agent. The College was represented by his agents.


living at [residence] ,
Following closure of the investigation, two letters from the claimant were received with the dates 4 March 2020 and 12 April 2020.
Recitals


plaintiffs,
The claimant's request


Lawyer Mr. U. Ögüt in Eindhoven,
1. In a letter dated 29 August 2018, the claimant requested the Municipal Executive, with reference to Article 17(1) of the General Data Protection Regulation (AVG), to remove all of his personal data from all systems in the municipality. In doing so, the claimant stated that the Municipal Executive had published his personal data on the VNG online forum (hereinafter referred to as the VNG Forum) and/or had forwarded them to other administrative bodies by e-mail.


by
In addition, with reference to article 82 of the AVG, he has requested compensation of €1,000 if it appears that the Municipal Executive has indeed put his personal data online on the VNG Forum and/or forwarded them to other administrative bodies.


the cooperative COÖPERATIVE RABOBANK U.A.,
The decision making by the Municipal Executive


based in Amsterdam, the Netherlands,
2. In the primary decision, the Board informed the claimant that the Board did not delete his personal data because those data had been processed lawfully, as the Board had previously explained at the claimant's request by decision of 4 December 2017. The Municipal Executive also disputed that it had posted data about the claimant online, on the VNG Forum, or e-mailed his data to other administrative bodies. According to the Municipal Executive, there is no question of unlawful data processing, so that the plaintiff cannot claim damages either.


defendant,
3. In the contested decision, the Municipal Executive maintained the primary decision. It is true that in 2013 the Municipality of Helmond shared personal data with the Municipality of Almere, but that processing was not unlawful. In 2013, the plaintiff had not only submitted a Wob application to the municipality of Helmond, but also to a number of other municipalities, including the municipality of Almere. In processing that request, the municipality of Almere wanted to investigate whether there might have been an abuse of rights, whether the submission of the Wob application was exclusively or mainly related to the collection of procedural cost orders and/or penalty payments. In connection with this investigation, the Municipality of Helmond confirmed to the Municipality of Almere that the plaintiff had submitted a similar Wob application to the Municipality of Helmond. This did not provide more information than was necessary for the municipality of Almere to carry out its public task. The provision of that information was therefore not unlawful, according to the Municipal Executive.


attorney at law J.L.W.M. Sgroot in Eindhoven.
(The scope of) the appeal and the assessment
4.1


The parties will hereinafter be referred to as [plaintiffs] and Rabobank. Where necessary, plaintiffs will be referred to separately as [plaintiff 1] and [plaintiff 2].
The plaintiff is of the opinion that the contested decision, contrary to Article 7:12(1) of the General Administrative Law Act (Awb), is not properly reasoned, because it would not be clear what the basis of the rejection of the application is. In the primary decision reference was made to Article 17(3) of the AVG and in the contested decision to Article 4:6 of the Awb. At the hearing, the Municipal Executive indicated, if so requested, that Article 4:6 of the General Administrative Law Act was the basis for the contested decision.
1 The proceedings
4.2
1.1.


The course of the procedure is evidenced by
The District Court agrees with the claimant that the presentation by the Municipal Executive of the articles in the various parts of the decision could have been better. The Municipal Executive itself acknowledged this. Nevertheless, it is clear - all things considered - what the Municipal Executive wanted to decide: rejection because of a repeated request with regard to the inspection and a declaration of unfounded content with regard to the request for removal and enforcement of the rejection of 5 October 2018 of the application for damages. The District Court sees no reason to attach consequences to the (slight) lack of clarity in the representation of this division. The ground for appeal is unsuccessful.


    -
5. The District Court finds that the plaintiffs' request under 1. does not contain a request for inspection. Plaintiffs' representative has argued that this should be read. The Court does not agree. The extent of the proceedings may not depend on the benevolence of the reader.


    the indictment of 19 February 2020 with 10 productions;
In case of doubt about how he should formulate his request, the plaintiff could have engaged an authorised representative, as he did from the objection phase onwards. The court will therefore only focus on the request for removal and the request for damages after this.
    -


    the letter from Mr Ögüt dated 24 February 2020 with productions 11 to 14;
Request for removal
    -
6.1


    Mr. Sgroot's letter of 25 February 2020 with 3 productions;
First of all, the plaintiff argued that the Municipal Executive should not have applied Article 4:6 of the General Administrative Law Act with reference to the decision of 4 December 2017 referred to under 2, because there was no question of a repeated application. The District Court established that by means of the latter decision a decision was given on a request for inspection by the claimant, which is different from requests for removal and compensation as is the case in these proceedings. The ground of appeal has an objective. The District Court will therefore annul the contested decision in respect of this part of the decision and, doing what the Municipal Executive should have done, on the basis of the objections raised, reconsider the primary decision.
    -
6.2


    the letter from Mr Ögüt dated 26 February 2020 with production 5 and 15 to 19;
The plaintiff is of the opinion that the sharing of his personal data with the Municipality of Almere was unlawful. There is no clear legal basis and the naming of the plaintiff's last name could have been omitted.
    -
6.3


    the judgment of the cantonal judge in Eindhoven of 28 February 2020;
The District Court considers as follows. Pursuant to the Government Information (Public Access) Act (Wet openbaarheid van bestuur (Wob)), a request may be submitted to the Municipal Executive for the publication and provision of information about an administrative matter. The implementation of the Wob is a public-law duty of the Board (and other boards). In this case, the purpose of mentioning the name of the claimant in an e-mail sent to another municipality at the request of another municipality was to ensure proper implementation of the Wob and to prevent the Wob from being misused to collect penalty payments in the event that a decision on a request is not taken on time. This purpose is in accordance with Article 8(e) of the Wbp and Article 6(1)(e) of the AVG. The purpose of the processing was proportional to the invasion of the privacy of the claimant and could not be achieved by less intrusive means. The District Court is therefore of the opinion that in this case the processing of the personal data of the claimant is not unlawful.
    -
6.4


    the indictment of 20 March 2020 with 10 productions;
It follows from this that the legal consequences of the contested decision, in so far as this relates to the decision on the request for removal, can be maintained.
    -


    the letter from Mr Ögüt dated 23 April 2020 with productions 11 to 14;
Compensation
    -
7.1


    the letter from Mr Ögüt dated 23 April 2020 with production 5 and 15 to 19;
In his request referred to under 1, the plaintiff has requested compensation of € 1,000.00 on the basis of article 82 of the AVG. By means of the contested decision, the Municipal Executive has upheld this request, which was upheld in objection, and declared it unfounded. On appeal, the claimant claimed damages of € 5,000.
    -
7.2


    Mr. Sgroot's letter of 23 April 2020 with 4 productions;
It follows from Article 8:4, first paragraph, opening words and under f, read in conjunction with Article 7:1, first paragraph, of the General Administrative Law Act (Awb) that no objection can be made against a decision regarding compensation for loss on account of unlawful management actions. The Municipal Executive should have declared the objection inadmissible in view of Article 7:11, first paragraph, of the General Administrative Law Act. The court annulled the contested decision in so far as it related to this.
    -


    Mr Ögüt's letter of 28 April 2020 with productions 20;
The District Court sees reason to provide for the case itself and to declare the objection inadmissible in so far as it is directed against the rejection of the application for compensation.
    -
7.3


    the oral hearing of 29 April 2020 at 9.30 a.m. via Skype;
On 1 April 2020, the Administrative Jurisdiction Division of the Council of State issued four judgments concerning the AVG and Wbp and related applications for damages. In these judgments - in brief - the Administrative Jurisdiction Division ruled that, in its opinion, the Administrative Jurisdiction Division of the Council of State is competent, pursuant to Section 8:88 of the General Administrative Law Act (Awb), to adjudicate an application for compensation for material or immaterial damage resulting from an act in violation of the AVG by an administrative body. The Division derives arguments for this from the AVG and the AVG Implementation Act. For full consideration, the District Court refers to these decisions.1 The District Court will further regard the appeal lodged in so far as it relates to the requested compensation as a request addressed to the District Court to order the Board to pay damages.
    -
7.4


    the pleading of mr. Ögüt on behalf of [plaintiffs] ;
In consideration 6.3 of this judgment, the District Court considered that the processing was not unlawful. This means that the plaintiff cannot claim damages. The District Court therefore rejected the claim for damages.
    -


    Mr. Sgroot's pleading on behalf of Rabobank;
Request for reopening and submission of preliminary questions
    -
8.1


    the letter from Mr Ögüt dated 1 May 2020 together with the consent of the administrator of [plaintiff 2] for the conduct of these proceedings.  
In his letter of 4 March 2020, the plaintiff mentioned a procedural number of a (then still future) decision of the Division. At the hearing it was discussed that the claimant would still send this information. The District Court took note of this letter and sent a copy to the Board for information.
8.2


1.2.
With its letter of 12 April 2020, the claimant requested the court to reopen the investigation and to ask preliminary questions about the concept of damages in the GCG.
8.3


Finally, a judgment has been rendered.
The court rejects the request. To this end, it is important that the claimant's request does not contain any (proposed) preliminary questions. The request is not substantiated at all. Furthermore, it is important that at the hearing the concept of damages in the AVG was discussed at length and that the plaintiff expressed his point of view on this. In terms of content, too, the District Court sees no reason to grant the request. There is no reason for compensation in this case. The court refers to its considerations in this judgment under 6 and 7.
2 The facts of the case
8.4
2.1.


In 2004, Rabobank granted [plaintiffs] two mortgage loans totalling € 252,000. In addition, an Opmaat insurance policy is linked to this financing. As security, Rabobank has obtained a right of mortgage on the real estate belonging to [plaintiffs] located at the [address] (hereinafter referred to as: the dwelling).
Plaintiff's letter of 12 April 2020 will not be considered, but will be included in the file.2
2.2.


Claimant 2] has applied for a participation allowance. Baanbrekers Gemeente Waalwijk rejected the application by letter dated 23 July 2019, because [plaintiff 2] did not provide all the necessary information.
Conclusion and conclusion
2.3.


Due to arrears in mortgage payments, Rabobank summoned [plaintiffs] to clear the arrears by letters including those dated 22 June 2018, 12 February 2019, 20 March 2019, 9 November 2019 and 19 November 2019.
9. The appeal is well founded. The court will order the college to pay the plaintiff's legal costs.
2.4.


In these letters, Rabobank always stated that if a backlog of three months or more were to arise, this would be reported to the Credit Registration Office (hereinafter also referred to as: BKR). The letter of 19 November 2019 stated that if [plaintiffs] do not clear the arrears before 1 December 2019, Rabobank will then make a notification to BKR.
Pursuant to the Decree on Administrative Law Legal Costs (Besluit proceskosten bestuursrecht) the court sets these costs at € 1,050 (1 point for filing the appeal, 1 point for appearing at the hearing with a value per point of € 525). In addition, the claimant has claimed reimbursement of travel and separation expenses. At the hearing, three cases were heard against three different administrative bodies. In two of these cases, the court ruled that the case was well-founded. The District Court therefore divided the travel expenses by two and ordered the Municipal Executive to pay an amount of € 19.02. With regard to lost expenses, the court finds that the plaintiff has not substantiated these costs. This means that, pursuant to Article 2(1)(d) of the Decree on Administrative Law Procedural Costs (Besluit proceskosten bestuursrecht) and the ruling of the Division of 21 March 2012, BV9511 , the District Court will apply the minimum rate of €7. The court will instruct the Municipal Executive to pay €7 in late fees to the plaintiff. The total procedural costs that the Board must pay to the plaintiff therefore amount to € 1,076.02. The Board will also have to repay the court fee to the claimant.
2.5.
Decision


Plaintiffs] subsequently failed to pay the arrears in the mortgage payment before 1 December 2019 and Rabobank filed a notification A (notification of arrears) with BKR.
The court:
2.6.


Subsequently, [plaintiffs] paid the arrears as yet on 11 December 2019, after which Rabobank filed a recovery notification with BKR. A recovery notification means that there is no more arrears.
    -
2.7.


Plaintiffs] have attempted to refinance the house via Domnivest. Through their intermediary, however, they have learned that Domnivest cannot refinance because of its registration with BKR.
    declares the appeal well-founded;
2.8.
    -


On 12 December 2019 the lawyer of [plaintiffs] Rabobank requested the removal of the registration with BKR.
    Annuls the contested decision;
2.9.
    -


Rabobank informed [plaintiffs] by e-mail of 13 December 2019 that [plaintiffs'] request had been rejected.
    provides that the legal effects of the contested decision, in so far as they relate to the part of the decision relating to an application for expulsion, are preserved;
2.10.
    -


Plaintiffs] have again allowed arrears in mortgage payments to arise. In letters dated 14 January 2020, 25 February 2020 and 9 March 2020, Rabobank informed [plaintiffs] of the arrears. The arrears currently amount to € 6,678.58.
    declares the objection inadmissible in so far as it relates to the part of the decision relating to the claim for compensation and states that that decision replaces the annulled contested decision;
2.11.
    -


In an e-mail dated 23 January 2020, Rabobank confirmed that if the home is sold, the Opmaat insurance payment may be set off against the mortgage loan.
    rejects the claim for damages;
2.12.
    -


2.12. Plaintiffs have entered into an agreement for the sale of the dwelling for an amount of €250,000. The purchase agreement was signed on 18 and 19 March 2020. The deed of delivery will be passed on 15 May 2020.
    instructs the Municipal Executive to compensate the claimant for the court fee of € 174;
3 The dispute
    -
3.1.


Plaintiffs] shall claim by order in summary proceedings to be provisionally enforceable to the extent possible:
    orders the College to pay the applicant's legal costs up to a total of


I. Rabobank to order the BKR foundation to immediately remove the BKR registration in such a way that it is no longer visible at Stichting Bureau Krediet Registratie and in the credit overview, subject to forfeiture of a penalty of 500.00 per day with a maximum of € 25,000.00,
1076,02.


II. order Rabobank to pay the costs of the present proceedings and the costs of settling the claims, together with interest at the statutory rate.
This statement was made by M. de Vries, chairman, and A.F. Vink and A.F. Vink.
3.2.


The plaintiffs rely on the following grounds.
Mr. F.A.M.C. Habraken-Hermans, members, in the presence of Mr. J.R. Leegsma, registrar. This judgment was rendered on 28 April 2020. As a result of the measures surrounding the coronavirus, this judgment was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this decision will still be pronounced in public.
3.2.1.


Rabobank did the BKR registration wrongly, because [plaintiffs], on the basis of the statements made by Rabobank's Special Administration employee, no longer paid the mortgage interest, because the amounts due would be set off by the civil-law notary against the surplus value of the dwelling.
registrar chairman
3.2.2.


Also on the basis of a balancing of interests, the registration should be deleted because the purpose of the registration no longer outweighs the interests of [plaintiffs] upon its removal.
Copy sent to parties on:
3.3.
Legal remedy


Rabobank defends the case.
An appeal may be lodged with the Administrative Jurisdiction Division of the Council of State against this decision within six weeks of the date on which it was sent.
3.3.1.
ANNEX


The six-week period applicable to such requests pursuant to Article 35(2) UAVG expired on 24 January 2020. The first summary summons was served on Rabobank on 19 February 2020 and therefore [plaintiffs] are inadmissible in their claims.
General Data Protection Regulation (AVG)
3.3.2.


There is no urgency, as it cannot be understood why proceedings on the merits cannot be awaited.
Article 6, first paragraph, introductory wording and point (e)
3.3.3.


The BKR notification was rightly made.
Processing is only lawful if and insofar as at least one of the following conditions is met:
3.3.4.


The claim must also be rejected on the basis of a weighing of interests.
e. the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
3.4.


The arguments of the parties are discussed in more detail below, insofar as they are relevant.
Article 17
4 The assessment
4.1.


The Court in preliminary relief proceedings first of all noted that [plaintiffs] failed to involve the administrator of [plaintiff 2] in these proceedings as plaintiff, but deemed this failure to be remedied by the assent of the administrator sent by [plaintiffs] by letter of 1 May 2020.
Article 17(1) of the AVG regulates the cases in which a person concerned has a right to erasure of data ('right to forgetting'). Paragraph 3 sets out the cases in which this right does not exist.


Admissibility
Article 82, paragraph 1
4.2.


Rabobank has argued that [plaintiffs] are inadmissible in their claims.
Any person who has suffered material or non-material damage as a result of a breach of this Regulation shall be entitled to receive compensation for the damage suffered from the controller or processor.
4.3.


The General Data Protection Regulation (AVG) applies to a request to remove a BKR registration. A person whose data has been registered may submit a request to the person who registered the personal data for removal pursuant to Article 21 in conjunction with Article 79 of the AVG and Article 35(2) of the AVG Implementation Act (hereinafter to be referred to as: UAVG). If this request is rejected, a petition must be submitted to the court within six weeks of receipt of this reply on the grounds of Article 35 paragraph 2 UAVG.
General Administrative Law Act (Awb)
4.4.


Rabobank responded to the request for removal of [plaintiffs] on 13 December 2019. The Court in preliminary relief proceedings considered that the six-week period expired on 24 January 2020 and that Rabobank's decision has now become irrevocable. After Rabobank's rejection, [plaintiffs] failed to submit a petition or serve a writ of summons (in good time). It cannot be the case that, if a petition was not submitted in time, the rejection can still be challenged in preliminary relief proceedings.
Article 4:6
4.5.


The appeal to the order of the District Court of Overijssel (ECLI:NL:RBOVE:2019:3755) is also of no avail to [the plaintiffs], because in this case Rabobank's response of 13 December 2019 is a decision within the meaning of Section 35 of the UAVG. After all, Rabobank's decision of 13 December 2019 refers to the link for the BKR registration and, moreover, [plaintiffs] were already assisted by their lawyer at that time.
    If following a wholly or partly negative decision, a new application is made, the applicant is obliged to state any new facts or changed circumstances.
4.6.


As [plaintiffs] did not take Rabobank to court in time, they are declared inadmissible in their claim. The Court in preliminary relief proceedings considered as follows.
    If no new facts or changed circumstances are stated, the administrative authority may, without applying Article 4:5, reject the application with reference to its previous decision rejecting it.  


Urgent interest
Article 7:1
4.7.


Before proceeding to assess the substance of the claim, it should be considered whether [plaintiffs] have an urgent interest in the claim for removal of the BKR registration.
    The person to whom the right has been granted to lodge an appeal with an administrative court must lodge an objection before lodging an appeal (...).
4.8.


Claimant 1] claims to have an urgent interest in the claim because he wishes to refinance the dwelling. The Court in preliminary relief proceedings overlooked this now that it had become apparent that the house had now been sold privately. Refinancing is therefore no longer necessary. The assertion of [plaintiff 1] that he is disadvantaged by the BKR registration in his actions as a private large investor is insufficiently substantiated. With regard to [plaintiff 2] too, there is no urgent interest, since the application for a participation payment was rejected because not all the necessary documents had been submitted and there is nothing to show that removal of the BKR registration is now urgently required to obtain a payment under the Participation Act.
    (…)
4.9.


The foregoing leads to the conclusion that, in the absence of an urgent interest, the claim could not have been granted on that ground either.
Article 7:11


Substantive assessment
    If the objection is admissible, the contested decision shall be reconsidered on that basis.
4.10.


4.10. It is also considered that in the event that [plaintiffs] are admissible in their claim and that there is an urgent interest, the claim should be rejected.
    (…)
4.11.


On the basis of Article 21 paragraph 1 GC, persons such as [plaintiffs] can object to the processing of their personal data concerning them on the basis of Article 6 paragraph 1 under e or f GC, because of their specific situation. The data controller, in this case Rabobank, must comply with the objection, unless it invokes compelling legitimate grounds for processing that outweigh the interests, rights and freedoms of the persons concerned. If the objection is upheld, the data controller must delete the personal data without unreasonable delay. If the data controller does not accept the objection, the data subject may, if necessary, ask the court for an effective remedy (Article 79 of the AVG and Article 35 of the UAVG). The court will assess whether the data controller has demonstrated that its overriding legitimate interests (in this case, the dual purpose of credit registration: to protect the consumer against excessive credit and to warn other credit institutions) outweigh the interests or fundamental rights and freedoms of the data subject in this specific case (recital 69 AVG).
Article 8:4
4.12.


4.12. This assessment should be made on the basis of the facts and circumstances known at the time of the assessment, so that facts and circumstances that have occurred after registration can also be taken into account. Such registration and its enforcement must comply with the principles of proportionality and subsidiarity in such a way that the interference with the interests of the data subjects involved in the processing of personal data, in this case [claimants], is not disproportionate in relation to the purpose to be served by the processing (principle of proportionality) and that the purpose for which the personal data are processed cannot reasonably be achieved by any other means less harmful to the data subject 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).
1. No appeal may be lodged against a decision:
4.13.


The following circumstances are relevant to the assessment in this case. Plaintiffs] have argued that the BKR registration was wrongly done, because Rabobank had given them permission to set off the arrears in mortgage payments against the surplus value of the house when the house was sold and delivered to the civil-law notary. In the defendant's defence, Rabobank argued that it was indeed agreed between the parties that the value of the Opmaat insurance could be set off, which was also confirmed in writing by e-mail dated 23 January 2018. There is nothing to indicate that the parties also agreed that this would also apply to the arrears in mortgage instalments that have arisen in the meantime and the mortgage instalments still due. As a result, [plaintiffs] did not substantiate sufficiently that Rabobank's BKR registration was wrong. In addition, Rabobank made several advance announcements and issued warnings, which clearly show that Rabobank does not in any way believe that the mortgage obligations should be set off against the Opmaat insurance. Finally, the Court in preliminary relief proceedings deems it important that [plaintiffs] only settled the arrears in the mortgage payments after the BKR registration had been done by Rabobank. Rabobank subsequently reversed the BKR registration because it had registered a recovery notification and also allowed [plaintiffs] to accumulate arrears in the mortgage instalments afterwards.
(…)
4.14.


On this basis, a balancing of interests is to the disadvantage of [plaintiffs].
f. on compensation for damages for unlawful management actions.


Litigation costs
(…)
4.15.


[plaintiffs] will be ordered to pay the costs of the proceedings as the unsuccessful party. The costs on the part of Rabobank are estimated at:
Article 8:88


- court registry fee € 656.00
1. At the request of an interested party, the administrative court has the power to order an administrative body to pay compensation for damage that the interested party has suffered or will suffer as a result:


- other costs 0,00
    an unlawful decision;


- lawyer's salary 980,00
    any other unlawful act in preparation of an unlawful decision;


Total € 1,636.00
(…).
5 The decision


The judge in preliminary relief proceedings
(…)
5.1.


declares [plaintiffs] inadmissible in their claims,
Process-Rules for Administrative Law Courts (Non-Kei cases) 2017
5.2.


Condemns [plaintiffs] to pay the costs of the proceedings, budgeted on the part of Rabobank to date at € 1,636.00, to be increased by the statutory interest as referred to in Section 6:119 of Book 6 of the Dutch Civil Code on this amount with effect from this judgment until the day of full payment,
Article 2.16
5.3.


Condemns [plaintiffs] to pay the costs incurred after this judgment, budgeted at € 157.00 in attorney's salary, to be increased, on the condition that Rabobank has not paid the judgment within 14 days of the notification of the judgment and that the judgment has subsequently been served, with an amount of € 82.00 in attorney's salary and the costs of service of the judgment, and to increase with the statutory interest as referred to in Section 6:119 of Book 6 of the Dutch Civil Code on the costs as from fourteen days after the notification of this judgment until payment has been made,
If documents have been received by the Administrative Court ten days or less before the hearing, the Administrative Court will decide whether these documents will be disregarded. The decision will be made known by the Administrative Court no later than in the decision.
5.4.


declares this judgment provisionally enforceable as far as the award of costs is concerned.
Documents that have been submitted unsolicited after the conclusion of the investigation at the hearing will not be considered. An exception applies to documents that have given rise to the reopening of the investigation. The decision will be made known by the administrative court no later than in the decision.


This judgment was given by Mr E. Loesberg and publicly on 7 May 2020.
Documents that are not taken into consideration will remain in the file.
</pre>
</pre>

Revision as of 07:52, 2 June 2020

Rb. Oost-Brabant - 19/1169
CourtsNL.png
Court: Rb. Oost-Brabant (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 6(1)(e) GDPR

Article 17(3) GDPR

Article 82 GDPR

Decided: 28.4.2020
Published: 26.5.2020
Parties: [[Municipality of Helmond
National Case Number: 19/1169
European Case Law Identifier: ECLI:NL:RBOBR:2020:2437
Appeal from: n/a
Language: Dutch
Original Source: de Rechtspraak (in NL)

The Court of First Instance of Eastern Brabant in the Netherlands (Rb. Oost-Brabant) ruled against claimant’s request to erase his personal from all systems of the municipality of Helmond. The Court also found that the claimant was not entitled to compensation from the municipality because his personal data was processed in accordance with the GDPR and the local administrative law.

English Summary

Facts

On 5 October 2018 the executive board refused to erase personal data of the claimant processed by the municipality of Helmond and refused to compensate damages to the claimant. On 8 March 2020 the board declared the claimant’s objection unfounded. The claimant has launched an appeal against this decision.

Dispute

The Court had to decide whether the board’s rejection of 8 March 2020 was in line with the administrative law and rule on the GDPR-based right of erasure and right to compensation requests.

Holding

The Court found that the request to erase personal data of the claimant was invalid because this processing had been carried out in line with Article 6(1)(e) of the GDPR and couldn’t have been done in a less intrusive way. Therefore, the processing was not unlawful. So, on this point, the Court has upheld the previous decision of the board.

The Court rejected the claim for compensation because his personal data was processed in accordance with the GDPR and local administrative law.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

Authority
    Court of East Brabant
Date of pronunciation
    28-04-2020
Date of publication
    26-05-2020 
Case number
    19/1169
Jurisdictions
    Administrative law
Special features
    First instance - multiple
Content indication

    AVG. Processing personal data. VNG Forum
Sites
    Rechtspraak.nl
    Enriched pronunciation 

Ruling
EASTERN BRABANT COURT

Seat 's-Hertogenbosch

Administrative law

Case number: SHE 19/1169
judgment of the multiple chamber of 28 April 2020 in the case between
[plaintiff] , in [residence] , plaintiff

(Agent: N.G.A. Voorbach),

and
the College of Mayor and Aldermen of the Municipality of Helmond, the College

(Agents: P. Helmus and E. Steijn).
Proceedings

By decision of 5 October 2018 (the primary decision), the Municipal Executive refused to delete personal data of the claimant processed by the Municipality of Helmond and refused to award damages to the claimant.

By decision on objection of 8 March 2019 (the contested decision), the Municipal Executive declared the claimant's objection unfounded.

The claimant lodged an appeal against the contested decision.

The Board has submitted a statement of defence.

The case was heard at the hearing on 4 March 2020. The plaintiff attended the hearing, assisted by his agent. The College was represented by his agents.

Following closure of the investigation, two letters from the claimant were received with the dates 4 March 2020 and 12 April 2020.
Recitals

The claimant's request

1. In a letter dated 29 August 2018, the claimant requested the Municipal Executive, with reference to Article 17(1) of the General Data Protection Regulation (AVG), to remove all of his personal data from all systems in the municipality. In doing so, the claimant stated that the Municipal Executive had published his personal data on the VNG online forum (hereinafter referred to as the VNG Forum) and/or had forwarded them to other administrative bodies by e-mail.

In addition, with reference to article 82 of the AVG, he has requested compensation of €1,000 if it appears that the Municipal Executive has indeed put his personal data online on the VNG Forum and/or forwarded them to other administrative bodies.

The decision making by the Municipal Executive

2. In the primary decision, the Board informed the claimant that the Board did not delete his personal data because those data had been processed lawfully, as the Board had previously explained at the claimant's request by decision of 4 December 2017. The Municipal Executive also disputed that it had posted data about the claimant online, on the VNG Forum, or e-mailed his data to other administrative bodies. According to the Municipal Executive, there is no question of unlawful data processing, so that the plaintiff cannot claim damages either.

3. In the contested decision, the Municipal Executive maintained the primary decision. It is true that in 2013 the Municipality of Helmond shared personal data with the Municipality of Almere, but that processing was not unlawful. In 2013, the plaintiff had not only submitted a Wob application to the municipality of Helmond, but also to a number of other municipalities, including the municipality of Almere. In processing that request, the municipality of Almere wanted to investigate whether there might have been an abuse of rights, whether the submission of the Wob application was exclusively or mainly related to the collection of procedural cost orders and/or penalty payments. In connection with this investigation, the Municipality of Helmond confirmed to the Municipality of Almere that the plaintiff had submitted a similar Wob application to the Municipality of Helmond. This did not provide more information than was necessary for the municipality of Almere to carry out its public task. The provision of that information was therefore not unlawful, according to the Municipal Executive.

(The scope of) the appeal and the assessment
4.1

The plaintiff is of the opinion that the contested decision, contrary to Article 7:12(1) of the General Administrative Law Act (Awb), is not properly reasoned, because it would not be clear what the basis of the rejection of the application is. In the primary decision reference was made to Article 17(3) of the AVG and in the contested decision to Article 4:6 of the Awb. At the hearing, the Municipal Executive indicated, if so requested, that Article 4:6 of the General Administrative Law Act was the basis for the contested decision.
4.2

The District Court agrees with the claimant that the presentation by the Municipal Executive of the articles in the various parts of the decision could have been better. The Municipal Executive itself acknowledged this. Nevertheless, it is clear - all things considered - what the Municipal Executive wanted to decide: rejection because of a repeated request with regard to the inspection and a declaration of unfounded content with regard to the request for removal and enforcement of the rejection of 5 October 2018 of the application for damages. The District Court sees no reason to attach consequences to the (slight) lack of clarity in the representation of this division. The ground for appeal is unsuccessful.

5. The District Court finds that the plaintiffs' request under 1. does not contain a request for inspection. Plaintiffs' representative has argued that this should be read. The Court does not agree. The extent of the proceedings may not depend on the benevolence of the reader.

In case of doubt about how he should formulate his request, the plaintiff could have engaged an authorised representative, as he did from the objection phase onwards. The court will therefore only focus on the request for removal and the request for damages after this.

Request for removal
6.1

First of all, the plaintiff argued that the Municipal Executive should not have applied Article 4:6 of the General Administrative Law Act with reference to the decision of 4 December 2017 referred to under 2, because there was no question of a repeated application. The District Court established that by means of the latter decision a decision was given on a request for inspection by the claimant, which is different from requests for removal and compensation as is the case in these proceedings. The ground of appeal has an objective. The District Court will therefore annul the contested decision in respect of this part of the decision and, doing what the Municipal Executive should have done, on the basis of the objections raised, reconsider the primary decision.
6.2

The plaintiff is of the opinion that the sharing of his personal data with the Municipality of Almere was unlawful. There is no clear legal basis and the naming of the plaintiff's last name could have been omitted.
6.3

The District Court considers as follows. Pursuant to the Government Information (Public Access) Act (Wet openbaarheid van bestuur (Wob)), a request may be submitted to the Municipal Executive for the publication and provision of information about an administrative matter. The implementation of the Wob is a public-law duty of the Board (and other boards). In this case, the purpose of mentioning the name of the claimant in an e-mail sent to another municipality at the request of another municipality was to ensure proper implementation of the Wob and to prevent the Wob from being misused to collect penalty payments in the event that a decision on a request is not taken on time. This purpose is in accordance with Article 8(e) of the Wbp and Article 6(1)(e) of the AVG. The purpose of the processing was proportional to the invasion of the privacy of the claimant and could not be achieved by less intrusive means. The District Court is therefore of the opinion that in this case the processing of the personal data of the claimant is not unlawful.
6.4

It follows from this that the legal consequences of the contested decision, in so far as this relates to the decision on the request for removal, can be maintained.

Compensation
7.1

In his request referred to under 1, the plaintiff has requested compensation of € 1,000.00 on the basis of article 82 of the AVG. By means of the contested decision, the Municipal Executive has upheld this request, which was upheld in objection, and declared it unfounded. On appeal, the claimant claimed damages of € 5,000.
7.2

It follows from Article 8:4, first paragraph, opening words and under f, read in conjunction with Article 7:1, first paragraph, of the General Administrative Law Act (Awb) that no objection can be made against a decision regarding compensation for loss on account of unlawful management actions. The Municipal Executive should have declared the objection inadmissible in view of Article 7:11, first paragraph, of the General Administrative Law Act. The court annulled the contested decision in so far as it related to this.

The District Court sees reason to provide for the case itself and to declare the objection inadmissible in so far as it is directed against the rejection of the application for compensation.
7.3

On 1 April 2020, the Administrative Jurisdiction Division of the Council of State issued four judgments concerning the AVG and Wbp and related applications for damages. In these judgments - in brief - the Administrative Jurisdiction Division ruled that, in its opinion, the Administrative Jurisdiction Division of the Council of State is competent, pursuant to Section 8:88 of the General Administrative Law Act (Awb), to adjudicate an application for compensation for material or immaterial damage resulting from an act in violation of the AVG by an administrative body. The Division derives arguments for this from the AVG and the AVG Implementation Act. For full consideration, the District Court refers to these decisions.1 The District Court will further regard the appeal lodged in so far as it relates to the requested compensation as a request addressed to the District Court to order the Board to pay damages.
7.4

In consideration 6.3 of this judgment, the District Court considered that the processing was not unlawful. This means that the plaintiff cannot claim damages. The District Court therefore rejected the claim for damages.

Request for reopening and submission of preliminary questions
8.1

In his letter of 4 March 2020, the plaintiff mentioned a procedural number of a (then still future) decision of the Division. At the hearing it was discussed that the claimant would still send this information. The District Court took note of this letter and sent a copy to the Board for information.
8.2

With its letter of 12 April 2020, the claimant requested the court to reopen the investigation and to ask preliminary questions about the concept of damages in the GCG.
8.3

The court rejects the request. To this end, it is important that the claimant's request does not contain any (proposed) preliminary questions. The request is not substantiated at all. Furthermore, it is important that at the hearing the concept of damages in the AVG was discussed at length and that the plaintiff expressed his point of view on this. In terms of content, too, the District Court sees no reason to grant the request. There is no reason for compensation in this case. The court refers to its considerations in this judgment under 6 and 7.
8.4

Plaintiff's letter of 12 April 2020 will not be considered, but will be included in the file.2

Conclusion and conclusion

9. The appeal is well founded. The court will order the college to pay the plaintiff's legal costs.

Pursuant to the Decree on Administrative Law Legal Costs (Besluit proceskosten bestuursrecht) the court sets these costs at € 1,050 (1 point for filing the appeal, 1 point for appearing at the hearing with a value per point of € 525). In addition, the claimant has claimed reimbursement of travel and separation expenses. At the hearing, three cases were heard against three different administrative bodies. In two of these cases, the court ruled that the case was well-founded. The District Court therefore divided the travel expenses by two and ordered the Municipal Executive to pay an amount of € 19.02. With regard to lost expenses, the court finds that the plaintiff has not substantiated these costs. This means that, pursuant to Article 2(1)(d) of the Decree on Administrative Law Procedural Costs (Besluit proceskosten bestuursrecht) and the ruling of the Division of 21 March 2012, BV9511 , the District Court will apply the minimum rate of €7. The court will instruct the Municipal Executive to pay €7 in late fees to the plaintiff. The total procedural costs that the Board must pay to the plaintiff therefore amount to € 1,076.02. The Board will also have to repay the court fee to the claimant.
Decision

The court:

    -

    declares the appeal well-founded;
    -

    Annuls the contested decision;
    -

    provides that the legal effects of the contested decision, in so far as they relate to the part of the decision relating to an application for expulsion, are preserved;
    -

    declares the objection inadmissible in so far as it relates to the part of the decision relating to the claim for compensation and states that that decision replaces the annulled contested decision;
    -

    rejects the claim for damages;
    -

    instructs the Municipal Executive to compensate the claimant for the court fee of € 174;
    -

    orders the College to pay the applicant's legal costs up to a total of

€ 1076,02.

This statement was made by M. de Vries, chairman, and A.F. Vink and A.F. Vink.

Mr. F.A.M.C. Habraken-Hermans, members, in the presence of Mr. J.R. Leegsma, registrar. This judgment was rendered on 28 April 2020. As a result of the measures surrounding the coronavirus, this judgment was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this decision will still be pronounced in public.

registrar chairman

Copy sent to parties on:
Legal remedy

An appeal may be lodged with the Administrative Jurisdiction Division of the Council of State against this decision within six weeks of the date on which it was sent.
ANNEX

General Data Protection Regulation (AVG)

Article 6, first paragraph, introductory wording and point (e)

Processing is only lawful if and insofar as at least one of the following conditions is met:

e. the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

Article 17

Article 17(1) of the AVG regulates the cases in which a person concerned has a right to erasure of data ('right to forgetting'). Paragraph 3 sets out the cases in which this right does not exist.

Article 82, paragraph 1

Any person who has suffered material or non-material damage as a result of a breach of this Regulation shall be entitled to receive compensation for the damage suffered from the controller or processor.

General Administrative Law Act (Awb)

Article 4:6

    If following a wholly or partly negative decision, a new application is made, the applicant is obliged to state any new facts or changed circumstances.

    If no new facts or changed circumstances are stated, the administrative authority may, without applying Article 4:5, reject the application with reference to its previous decision rejecting it. 

Article 7:1

    The person to whom the right has been granted to lodge an appeal with an administrative court must lodge an objection before lodging an appeal (...).

    (…)

Article 7:11

    If the objection is admissible, the contested decision shall be reconsidered on that basis.

    (…)

Article 8:4

1. No appeal may be lodged against a decision:

(…)

f. on compensation for damages for unlawful management actions.

(…)

Article 8:88

1. At the request of an interested party, the administrative court has the power to order an administrative body to pay compensation for damage that the interested party has suffered or will suffer as a result:

    an unlawful decision;

    any other unlawful act in preparation of an unlawful decision;

 (…).

(…)

Process-Rules for Administrative Law Courts (Non-Kei cases) 2017

Article 2.16

If documents have been received by the Administrative Court ten days or less before the hearing, the Administrative Court will decide whether these documents will be disregarded. The decision will be made known by the Administrative Court no later than in the decision.

Documents that have been submitted unsolicited after the conclusion of the investigation at the hearing will not be considered. An exception applies to documents that have given rise to the reopening of the investigation. The decision will be made known by the administrative court no later than in the decision.

Documents that are not taken into consideration will remain in the file.