Rb. Oost-Brabant - 330362 HA ZA 18-88
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| Rb. Oost-Brabant - 330362 HA ZA 18-88 | |
|---|---|
 | |
| Court: | Rb. Oost-Brabant (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(f) GDPR |
| Decided: | 18.11.2020 |
| Published: | 24.11.2020 |
| Parties: | Hotel Gaming BV |
| National Case Number/Name: | 330362 HA ZA 18-88 |
| European Case Law Identifier: | ECLI:NL:RBOBR:2020:5790 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | n/a |
The Dutch District Court of Eastern Brabant (Rb. Oost-Brabant) held that Hotel Gaming must provide the complainant with the personal data of third-parties to enable the complainant to prove a claim. The complainant's legitimate interest overrides the third-parties' right to privacy (Article 6(1)(f) GDPR).
English Summary
Facts
To prove his claims in a litigation against Hotel Gaming, the plaintiff wishes to have witnesses heard. Those witnesses were former employees of the defendant. The plaintiff however does not have the necessary address details and dates of birth for the witness calls, and Hotel Gaming refuses to provide these details to the plaintiff.
In an incidental claim, the plaintiff therefore requests the District Court to order Hotel Gaming to inspect and copy the salary specifications of its former workers or to otherwise provide their address details and dates of birth.
Hotel Gaming disputes the plaintiff's claim that he has a "legitimate interest" under article 6(1)f of the GDPR and that this legitimate interest outweighs the data subjects' (former employees called as witnesses) interest in privacy protection. Hotel Gaming argues in this respect that the security of its former workers is at stake, because the plaintiff might try to intimidate them after obtaining their personal data.
Dispute
Is the processing of the requested personal data lawful on the basis of Article 6(1)f of the GDPR or should the data subjects' interests or fundamental rights take precedence?
In other words, must the importance of finding the truth give way to the importance of confidentiality?
Holding
Pursuant to the Dutch Code of Civil Procedure, the plaintiff has a right of inspection and a copy of documents vis-à-vis the person who has them at his disposal, except if there are compelling reasons not to do so.
The District Court is of the opinion that, although providing the requested data constitutes an invasion of the privacy of the defendant's former workers, this invasion is not sufficiently serious to be regarded as a compelling reason within the meaning of the Dutch Code of Civil Procedure or to be judged contrary to Article 6(1)f of the GDPR.
The District Court considers that a "legitimate interest" should be considered present if the requested data are relevant to the plaintiff's determination of his legal position (not only if the requested data contain relevant information to support the plaintiff's assertions). This is the case here, as the testimony of a witness can contribute to the finding of the truth in civil proceedings.
When outweighing the legitimate interest of the plaintiff, the District Court states that the data requested by the plaintiff do not relate to any sensitive personal data. The data in question are moreover included in the Basic Registration of Persons and can be consulted by the plaintiff's lawyer without the intervention of Hotel Gaming. Hotel Gaming has insufficiently substantiated the fear of intimidation of witnesses by the plaintiff.
The Court therefore condemns Hotel Gaming to provide a copy of the most recent salary statement of its former workers.
However, the requested data may only be provided to the extent necessary to fulfill the purpose of the legitimate interest of the plaintiff, namely the proof of his statements by means of witnesses. In order to be able to summon witnesses, it is sufficient to have the names, addresses and dates of birth of the witnesses. The other information mentioned in the salary specifications is not necessary and should therefore be made illegible by Hotel Gaming.
Assuming that the witnesses will be summoned by the plaintiff's lawyer, the District Court moreover considers that it is not necessary to provide the salary specifications to the plaintiff in person. The requested information may only be provided by Hotel Gaming to the plaintiff's lawyer.
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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.
Statement
verdict
COURT OF EAST BRABANT
Civil rights
Seat in 's-Hertogenbosch
case number / cause list number: C / 01/330362 / HA ZA 18-88
Verdict in incident of November 18, 2020
in the case of
[claimant] ,
residing in [residence],
plaintiff in the main action,
claimant in the incident,
lawyer: MM van der Marel in Eindhoven,
against
the private company with limited liability
HOTEL GAMING BV ,
established in Nuland,
defendant in the main action,
respondent in the incident,
lawyer: mr. JGC Scheurink in 's-Hertogenbosch,
The parties will hereinafter be referred to as “[claimant]” and “Hotel Gaming”.
1 The procedure
1.1.
The further course of the procedure is evident from:
-
the interim judgment of January 15, 2020;
-
the deed after interim judgment of [plaintiff];
-
the incidental conclusion to inspect and copy documents as referred to in Article 843a Rv;
-
the B16 form of [claimant] with the request to split up the alleged incidents;
-
Hotel Gaming's B16 form with the request not to process or reject the request for division;
-
the statement of response in the incident.
1.2.
Finally, verdict has been determined in the incident.
2 The claims in and the course of the main action
2.1.
In the main action, [plaintiff] has demanded a declaration of law against both Hotel Gaming and the Netherlands Gaming Authority (hereinafter: KSA) that they have failed imputably in the fulfillment of their contractual care obligations, or at least acted unlawfully with regard to him. On that basis, [plaintiff] has filed a claim to order Hotel Gaming and KSA to pay an amount in damages of € 90,000.00, plus interest and costs.
2.2.
The claims against KSA were dismissed by interlocutory judgment of January 15, 2020. With regard to the claims against Hotel Gaming, the court ordered [plaintiff] to prove that he used cocaine in the period from July 10, 2016 to January 11, 2017, during his visits to the casino operated by Hotel Gaming, which Hotel Gaming said was aware and from what moment she was aware of it.
2.3.
[plaintiff] has indicated to the court by document after an interlocutory judgment that he wishes to have four witnesses heard in the context of the evidence assignment given to him. It concerns the following persons:
-
[name 2] (hereinafter: [name 2]), former floor manager at Hotel Gaming;
-
[name 3] (hereinafter: [name 3]), former floor manager at Hotel Gaming;
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[name 4] (hereinafter: [name 4]), operations manager at Hotel Gaming;
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[name 5] ([name 5]), manager at Hotel Gaming.
2.4.
In connection with the summons for the hearing of witnesses, [name 4] and [name 5] have chosen domicile at the address of the head office of Hotel Gaming. As a result, they could be summoned without any problems for the witness interviews, which took place on November 4, 2020. [Claimant] states that he has not yet succeeded in calling [name 2] and [name 3] as witnesses. According to [claimant], unlike Hotel Gaming, he does not have the address details and dates of birth necessary for the witness calls.
2.5.
Hotel Gaming refuses to provide this information to [claimant] and has, on request, declared itself unwilling to arrange for [claimant] to summon the relevant witnesses.
3 The claims in the incident
3.1.
The foregoing has prompted [plaintiff] to institute incidental claims. In short, the primary claim seeks to reverse the burden of proof, so that it is up to Hotel Gaming to prove that [plaintiff] did not use cocaine during his casino visits in the period from July 10, 2016 to January 11, 2017. In this connection he argues - in summary - that Hotel Gaming deliberately makes it impossible for him to summon [name 2] and [name 3] as witnesses due to its reluctant attitude. According to [claimant], this put him in an unreasonably serious position of evidence.
3.2.
In the event that the court sees no reason to reverse the burden of proof, [plaintiff] alternatively claims - in short - to order Hotel Gaming to inspect and copy the salary specifications of [name 2] and [name 3] or known address details and dates of birth of [name 2] and [name 3], under penalty of a penalty. In this context, he invokes article 843a DCCP and states that all the conditions set by that article have been met. In the further alternative, [plaintiff] demands that the court order Hotel Gaming pursuant to Article 22 DCCP to submit the address details and dates of birth of [name 2] and [name 3] known to it.
3.3.
Hotel Gaming puts forward a defense and contends that the incidental claims should be rejected, with [plaintiff] being ordered to pay the actual costs of the proceedings.
contends that Hotel Gaming is thus raising a new incident. According to him, Hotel Gaming is requesting a preliminary injunction to order [plaintiff] to pay the actual costs of the proceedings. [plaintiff] asks the court to split the incidents.
4 The assessment in the incident
4.1.
Hotel Gaming's most far-reaching defense is that the incident raised by [plaintiff] is contrary to the requirements of due process.
Fight with due process?
4.2.
In this context, Hotel Gaming argues - in summary - that the procedure is unnecessarily delayed as a result of the incident and that proper administration of justice is guaranteed even without the requested information. According to Hotel Gaming, [plaintiff] is abusing procedural law.
4.3.
The court does not follow Hotel Gaming in its position. For the abuse of procedural law alleged by Hotel Gaming, it is required that it was clear to [plaintiff] in advance or that the incidental claims were hopeless or meaningless or that [plaintiff] should have understood in advance that the assertions on which they were based are not could lead to the result he wanted. In view of the opinion to be given below, it cannot be said that the incidental claims are in advance without chance, pointless or unmistakably without grounds. Nor has there been any unreasonable delay in the proceedings.
Violation of the substantiation obligation?
4.4.
Hotel Gaming has further stated that [plaintiff] is in breach of its obligation to substantiate by concealing that Hotel Gaming has already informed him at an earlier stage that it does not have recent name and address details of [name 2] and [name 3] and that moreover, it cannot and may not provide such data on the basis of the General Data Protection Regulation (Regulation 2016/679 of the European Parliament and of the Council of the European Union of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and regarding the free movement of such data, hereinafter: GDPR). Hotel Gaming requests the court to attach the consequences it deems advisable to this.
4.5.
In view of what will be considered below, the court sees no reason to comply with Hotel Gaming's request.
Primary Claim: Reversal of the Burden of Proof
4.6.
In assessing the primary claim of [plaintiff], the court first of all states that the law does not provide for the incidental claim for reversal of the burden of proof. An incidental claim not directly referred to in the law may be instituted if the claim contains a procedural defense or if it raises a procedural matter without the court being able to assess the content of the dispute. In the opinion of the court, this is not the case in this incident. In order to be able to assess whether in this case there is reason to reverse the burden of proof, the substance of the case must be addressed. The primary claim of [plaintiff] will therefore be dismissed.
Alternative claim: provision of the salary specifications of [name 2] and [name 3]
4.7.
With a view to providing evidence in the main action, [plaintiff] has alternatively claimed to order Hotel Gaming on the basis of Article 843a DCCP to inspect and copy the salary specifications or the address details and dates of birth of [name 2] and [name] known to it. 3].
4.8.
With regard to the question whether this claim is eligible for allocation, the court states that Article 843a DCCP does not provide for an unlimited right to inspect or copy documents vis-à-vis the person who has them at his disposal or in his custody. This provision states that entitlement is subject to three cumulative conditions: (1) the person bringing the claim must have a legitimate interest, and (2) it must concern certain documents (3) regarding a legal relationship in which the plaintiff or his legal predecessor party. If these conditions are met, there is nevertheless no obligation under Article 843a paragraph 4 DCCP to submit the documents if there are compelling reasons for this,or if it can be reasonably assumed that proper administration of justice is guaranteed even without providing the requested information.
4.9.
In the assessment it is also important that [claimant] requests access to and a copy of personal data within the meaning of the directly applicable GDPR. All information about an identified or identifiable natural person qualifies as personal data (Article 4, opening words and under 1 GDPR). Identifiability means that a natural person can be identified directly or indirectly, in this case on the basis of names and dates of birth. As Hotel Gaming rightly argues, the [claimant] 's claim of exhibition can be regarded as aimed at the processing of personal data within the meaning of the GDPR, given the broad description thereof in Article 4, opening words and under 2 of the GDPR. It states that processing of personal data is any operation thereof, such as collection, recording, updating and, as in this case,requesting personal data.
4.10.
When answering the question of whether Hotel Gaming should provide access to and a copy of the data of [name 2] and [name 3], Article 6 paragraph 1, opening words and under f GDPR must therefore also be taken into account. This article provides - insofar as relevant here - that personal data may be processed if and insofar as the condition that the data processing is necessary for the representation of the legitimate interests of a third party is met, unless the interests or the fundamental rights and freedoms of the data subject that compel the protection of his personal data outweigh those interests [of the third party].
At his disposal or under his consent
4.11.
Hotel Gaming argues that it does not have recent (address) details of [name 2] and [name 3], because these persons have not been working for it for 1.5 to 2 years. The court ignores this defense of Hotel Gaming, because the claim of [plaintiff] is aimed at obtaining access to the information known to Hotel Gaming as stated on - for example - salary specifications, in respect of which it is not established in advance that it concerns the most recent data goes. It has neither been stated nor shown that Hotel Gaming does not have these salary specifications.
Legitimate / legitimate interest
4.12.
Hotel Gaming disputes that there is a legitimate interest. The assertions it has made in this regard in the first place boil down to the fact that there is only a legitimate interest if the information requested contains information relevant to the assessment of the dispute. According to Hotel Gaming, this condition has not been met, because the requested information is not intended to support any assertion of [claimant].
4.13.
The court considers that Hotel Gaming's defense is based on an interpretation of the concept of legitimate interest that is too limited. The purpose of setting this condition (in combination with the condition 'certain documents') of the obligation to exhibit is to prevent so-called 'fishing expeditions'. The concept of 'legitimate interest' should therefore not be interpreted more narrowly than is necessary to achieve this aim. With the limited explanation advocated by Hotel Gaming, the judge in the incident should anticipate too much decisions that need to be taken in the main action. In the light of the purpose of this condition, the court is of the opinion that a legitimate interest must be deemed to exist if the requested documents are relevant for the plaintiff's determination of his legal position. That is the case here.This is because the statement of a witness can contribute to the finding of truth in civil proceedings.
4.14.
The relevant data (addresses and dates of birth) are also necessary for [claimant] for the promotion of a legitimate interest within the meaning of Article 6 paragraph 1, opening words and under f GDPR, namely proof of his statements by means of witnesses. However, on the basis of this provision, the requested information may only be provided insofar as this is necessary for the promotion of this interest of [claimant]. The court assumes that the witnesses will be summoned by [plaintiff's lawyer]. It follows from this that it is not necessary to provide the salary specifications to [claimant] in person. Furthermore, it is sufficient to be able to summon witnesses to have the names, addresses and dates of birth of [name 2] and [name 3].The other information stated on the salary specifications is not necessary and may therefore not be provided to the lawyer of [claimant].
Certain records
4.15.
The second requirement that must be met in the context of a claim based on Article 843a DCCP is that it must relate to 'specific documents'. This requirement implies that a claim for inspection and copy must be so concrete that it can be properly established which documents are meant. Hotel Gaming has not put forward a defense on this point and it is clear that the request relates to the salary specifications of [name 2] and [name 3], or at least the address details and dates of birth of these persons known to Hotel Gaming. The second requirement is thus also fulfilled.
Regarding a legal relationship
4.16.
Finally, Article 843a DCCP stipulates that the requested documents must relate to a legal relationship in which the plaintiff or his legal predecessor is a party. According to Hotel Gaming, this requirement has not been met. In this context, she argues that [claimant] is demanding inspection and a copy of salary specifications and that these are not documents to which [claimant] is a party. In doing so, she points out that the requested information will not provide insight into the facts to be proven by [claimant].
4.17.
The court considers that Hotel Gaming also assumes here too limited an interpretation of article 843a DCCP. As [plaintiff] rightly states, a legal relationship resulting from an unlawful act must also be regarded as a legal relationship within the meaning of Article 843a DCCP. The requested information is also relevant for substantiating his assertions by means of witness evidence. The requested documents thus enter into the legal relationship between [claimant] and Hotel Gaming, and thus a legal relationship to which [claimant] is a party. Not required, and moreover difficult to imagine, is that the legal relationship resulting from an unlawful act must be reflected in those documents.
Weighty reason / balancing of interests
4.18.
The foregoing implies that on the basis of Article 843a DCCP [claimant] in principle has a right of inspection and copies of the requested documents. The question that then arises is whether there is a compelling reason why Hotel Gaming does not have to comply with the obligation to inspect and copy. There is also the question of whether the processing of the requested personal data is lawful on the basis of Article 6 paragraph 1, preamble and under f GDPR. This is not the case if the interests or the fundamental and fundamental rights of the data subjects, in particular the right to privacy, are more important. According to Hotel Gaming, the latter is the case. She argues in this regard that the safety of [name 2] and [name 3] is at stake,because it cannot be ruled out that [claimant] will try to intimidate them after obtaining the personal data.
4.19.
The court considers that the assessment of this question (among other things) concerns the question of whether the overriding importance of finding the truth should give way to the importance of confidentiality. In that context, an assessment must be made of the consequences of the provision of data for [name 2] and [name 3]. Relevant factors here include an assessment of the consequences of processing, the nature of the processed data and the method of processing.
4.20.
The court states first that providing the requested information constitutes an infringement of the privacy of [name 2] and [name 3]. In this case, however, the information requested by [claimant] does not concern special personal data, such as political opinions, religious or philosophical beliefs, or information about health. The data in question (names and dates of birth) are included in the Personal Records Database and can be consulted by designated organizations, including bailiff offices, for example for the purpose of summoning witnesses. The invasion of the privacy of [name 3] and [name 2] is therefore no more serious than if the data were requested by the lawyer of [plaintiff] without the intervention of Hotel Gaming in the Personal Records Database.Regarding the consequences of the processing, the court considers that Hotel Gaming has argued that the requested data should not be provided due to its confidentiality, because [plaintiff] may be guilty of intimidation of [name 2] after obtaining it and [name 3]. However, Hotel Gaming has insufficiently substantiated the fear of witness intimidation by [plaintiff]. That is why this statement is unsuccessful. The court finds superfluously that these objections of Hotel Gaming may be overcome because the court will determine, on the basis of Article 6 paragraph 1 of the GDPR, that the requested information may only be provided to the attorney of [claimant].However, Hotel Gaming has insufficiently substantiated the fear of witness intimidation by [plaintiff]. That is why this statement is unsuccessful. The court finds superfluously that these objections of Hotel Gaming may be overcome because the court will determine on the basis of Article 6 paragraph 1 GDPR that the requested information may only be provided to the lawyer of [claimant].However, Hotel Gaming has insufficiently substantiated the fear of witness intimidation by [plaintiff]. That is why this statement is unsuccessful. The court finds superfluously that these objections of Hotel Gaming may be overcome because the court will determine on the basis of Article 6 paragraph 1 of the GDPR that the requested data may only be provided to the lawyer of [claimant].
4.21.
In view of the foregoing, the court is of the opinion that the provision of the requested data does indeed constitute an infringement of the privacy of [name 2] and [name 3], but that this infringement is not serious enough under the aforementioned circumstances to warrant a serious reason within the meaning of article 843a paragraph 1 Rv or in violation of article 6 paragraph 1, opening words and under f GDPR. Hotel Gaming has not put forward any facts and circumstances that justify a different conclusion.
Proper administration of justice without inspection or copy
4.22.
Finally, Hotel Gaming has invoked the provisions of the fourth paragraph of article 843a DCCP by stating that proper administration of justice is guaranteed for [plaintiff] even without the claim at issue here. In this connection, she argues - in short - that [name 2] can be summoned for a witness examination by means of a public service as referred to in Article 54 DCCP. According to Hotel Gaming, it can be deduced from the correspondence with the bailiff brought in the proceedings by [claimant] that [name 2] resides abroad, or at least has no known domicile or residence in the Netherlands. According to Hotel Gaming, [name 3] can be summoned as a witness in the usual manner,because the correspondence with the bailiff submitted by [claimant] shows that the bailiff's search for [name 3] yielded two results. In addition, Hotel Gaming points out that it concerns persons with the year of birth 1969 and 1988 respectively and that [plaintiff] must be able to designate the correct person, given the fact that he met [name 3] in the casino at the time.
4.23.
The court considers that in order to determine the known place of residence in the Netherlands of [name 2] and [name 3], it will be necessary to have (as much as possible) identifying information, including the address details and dates of birth required by [plaintiff]. Hotel Gaming deduces from the messages from the bailiff submitted by [plaintiff] that [name 2] has no known domicile in the Netherlands. However, this conclusion is premature, because it can (possibly) only be concluded if the bailiff has been able to make the necessary investigative efforts with the aforementioned information in hand and this investigation has yielded no results. In addition, [plaintiff] has an interest in the summons to actually reach [name 2].The chance of this is (much) greater if the summons can be served in person or at the home or residence address of [name 2]. Even if the information to be provided by Hotel Gaming is not the most recent, as stated by Hotel Gaming, this information can serve as a starting point for finding the most recent residential address. Contrary to what Hotel Gaming argues, a proper administration of justice with a public service is therefore not guaranteed in the opinion of the court.proper administration of justice with public service is therefore not guaranteed in the opinion of the court.proper administration of justice with public service is therefore not guaranteed in the opinion of the court.
4.24.
With regard to [name 3], Hotel Gaming states that its details are known to [claimant], so that it can be called up in the usual manner. The court does not follow Hotel Gaming in this. It may be inferred from the correspondence submitted by [claimant] that the bailiff arrived at two search results with the well-known data, but Hotel Gaming's assertion presupposes that the search results in question actually relate to [name 3]. However, that is not certain.
4.25.
Finally, the court takes into account that in these proceedings, too, the parties are obliged to each other to avoid unreasonable delay in the proceedings. This obligation is included in article 20 paragraph 2 DCCP.
4.26.
The foregoing leads the court to the conclusion that the alternative claim of [plaintiff] will be allowed, in the sense that Hotel Gaming must provide the attorney of [plaintiff] with the salary specifications of [name 2] and [name 3], from which only their names, address details and dates of birth appear. For the rest, Hotel Gaming must make the salary specifications illegible.
Penalty
4.27.
The court will also award the claimed penalty, albeit that a maximum of € 25,000.00 will be attached to the penalty payments to be forfeited.
The costs associated with providing the data
4.28.
As Hotel Gaming rightly argues, the costs for providing inspection and a copy are for the account of [claimant]. Hotel Gaming requests the court to estimate these costs at an amount of € 100.00 excluding VAT and to determine that [plaintiff] must pay this amount prior to the provision of the data to Hotel Gaming. The court ignores this request because Hotel Gaming has failed to substantiate the alleged costs of € 100.00. It is not plausible that the provision of the relevant data involves an amount of € 100.00 excluding VAT without further explanation - which is therefore lacking.
The request of [plaintiff] to split the incidents
4.29.
Hotel Gaming's request to order [plaintiff] in (primarily) the actual legal costs for putting forward a defense cannot be regarded as an incidental claim. That is why splitting is not an issue. The request of [plaintiff] for a division is therefore rejected.
The legal costs
4.30.
Hotel Gaming will be ordered to pay the costs of the incident as the unsuccessful party. The costs on the part of [claimant] are estimated at € 543.00 for attorney's salary (1 point rate II).
Interim appeal and enforceability with stock
4.31.
Hotel Gaming has requested the court to open an interim appeal against this judgment in the event that this judgment is declared provisionally enforceable. The court rejects this request. Hotel Gaming has not stated any facts and circumstances that justify granting the request to lift the prohibition of interim appeal.
4.32.
In view of the foregoing, an appeal can only be lodged against this interim judgment at the same time as the final judgment (Article 337 paragraph 2 DCCP). The interim judgment is therefore immediately enforceable. The enforceability of this judgment claimed by [claimant] is therefore superfluous and will be rejected due to lack of interest.
5 The decision
The court:
in the incident
5.1.
orders Hotel Gaming to provide the attorney of [claimant] with a copy of the most recent possible salary statement of [name 2] and of [name 3], within seven days after this judgment has been served on the lawyer of [name 2] and [name 3] are visible, all this under penalty of forfeiture of a penalty of € 1,000.00 per day or part thereof that Hotel Gaming fails to comply with this conviction, with a maximum of € 25,000 , 00;
5.2.
orders Hotel Gaming to pay the costs of the incident, on the part of [plaintiff] to date estimated at € 543.00 for attorney's salary (not taxed with VAT), plus the statutory interest as referred to in Article 6: 119 of the Civil Code from the 15th day after the date of this judgment;
5.3.
rejects any additional or different claims;
in the main thing
5.4.
determines that the case will resume on December 2, 2020 for the decision on the request for a warrant on the part of [plaintiff].
This judgment was rendered by mr. DJ Hutten, mr. ME Bartels and mr. A. de Boer and pronounced in public on November 18, 2020.
