Rb. Oost-Brabant - C/01/356292 / KG ZA 20-141

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Rb. Oost-Brabant - C/01/356292 / KG ZA 20-141
CourtsNL.png
Court: Rb. Oost-Brabant (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 6(1)(e) GDPR

Article 21(1) GDPR

Article 79 GDPR

Recital 69 GDPR

Article 35 of the Dutch GDPR Implementation Act (“UAVG”)

Decided: 7.5.2020
Published: 11.5.2020
Parties: COÖPERATIVE RABOBANK U.A.
National Case Number: C/01/356292 / KG ZA 20-141
European Case Law Identifier: ECLI:NL:RBOBR:2020:2534
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-Brabannt) rejected request for removal of registration in the Dutch Credit Registry (BKR) which was performed by Rabobank. The Court found the registration was right and that the interests of the plaintiffs do not outweigh the ones of Rabobank.

English Summary[edit | edit source]

Facts[edit | edit source]

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.

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[edit | edit source]

Holding[edit | edit source]

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 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.

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English Machine Translation of the Decision[edit | edit source]

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
    07-05-2020
Date of publication
    11-05-2020 
Case number
    C/01/356292 / KG ZA 20-141
Jurisdictions
    Civil Justice
Special features
    Interim injunction
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.

judgment
EASTERN BRABANT COURT

Civil Justice

Seat 's-Hertogenbosch

Case number / reel number: C/01/356292 / KG ZA 20-141

Judgment in preliminary relief proceedings of 7 May 2020

in the matter of
1 [plaintiff 1] ,

living at [residence] ,

2. [plaintiff 2]

living at [residence] ,

plaintiffs,

Lawyer Mr. U. Ögüt in Eindhoven,

by

the cooperative COÖPERATIVE RABOBANK U.A.,

based in Amsterdam, the Netherlands,

defendant,

attorney at law J.L.W.M. Sgroot in Eindhoven.

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].
1 The proceedings
1.1.

The course of the procedure is evidenced by

    -

    the indictment of 19 February 2020 with 10 productions;
    -

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

    Mr. Sgroot's letter of 25 February 2020 with 3 productions;
    -

    the letter from Mr Ögüt dated 26 February 2020 with production 5 and 15 to 19;
    -

    the judgment of the cantonal judge in Eindhoven of 28 February 2020;
    -

    the indictment of 20 March 2020 with 10 productions;
    -

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

    the letter from Mr Ögüt dated 23 April 2020 with production 5 and 15 to 19;
    -

    Mr. Sgroot's letter of 23 April 2020 with 4 productions;
    -

    Mr Ögüt's letter of 28 April 2020 with productions 20;
    -

    the oral hearing of 29 April 2020 at 9.30 a.m. via Skype;
    -

    the pleading of mr. Ögüt on behalf of [plaintiffs] ;
    -

    Mr. Sgroot's pleading on behalf of Rabobank;
    -

    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. 

1.2.

Finally, a judgment has been rendered.
2 The facts of the case
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).
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.
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.
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.
2.5.

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.
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.
2.8.

On 12 December 2019 the lawyer of [plaintiffs] Rabobank requested the removal of the registration with BKR.
2.9.

Rabobank informed [plaintiffs] by e-mail of 13 December 2019 that [plaintiffs'] request had been rejected.
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.
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.
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.
3 The dispute
3.1.

Plaintiffs] shall claim by order in summary proceedings to be provisionally enforceable to the extent possible:

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,

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.
3.2.

The plaintiffs rely on the following grounds.
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.
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.
3.3.

Rabobank defends the case.
3.3.1.

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.
3.3.2.

There is no urgency, as it cannot be understood why proceedings on the merits cannot be awaited.
3.3.3.

The BKR notification was rightly made.
3.3.4.

The claim must also be rejected on the basis of a weighing of interests.
3.4.

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

Admissibility
4.2.

Rabobank has argued that [plaintiffs] are inadmissible in their claims.
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.
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.
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.
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.

Urgent interest
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.
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.

Substantive assessment
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).
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).
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].

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:

- court registry fee € 656.00

- other costs 0,00

- lawyer's salary 980,00

Total € 1,636.00
5 The decision

The judge in preliminary relief proceedings
5.1.

declares [plaintiffs] inadmissible in their claims,
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,
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,
5.4.

declares this judgment provisionally enforceable as far as the award of costs is concerned.

This judgment was given by Mr E. Loesberg and publicly on 7 May 2020.