Rb. Overijssel - 8403670 \ CV EXPL 20-1229

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Rb. Overijssel - 8403670 \ CV EXPL 20-1229
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Court: Rb. Overijssel (Netherlands)
Jurisdiction: Netherlands
Relevant Law:
civil law
Decided: 09.02.2021
Published: 15.03.2021
National Case Number/Name: 8403670 \ CV EXPL 20-1229
European Case Law Identifier: ECLI:NL:RBOVE:2021:649
Appeal from:
Appeal to:
Original Language(s): Dutch
Original Source: Uitspraken (in Dutch)
Initial Contributor: n/a

The Dutch Court of Overijssel found that a GDPR infringement may not constitute a breach of acquisition contract.

English Summary


A window cleaning company (Plaintiff) sold its customer database to the Defendant. The Plaintiff requested a fee for the database. The Defendant paid a third of the fee to the Plaintiff and did not want to pay the rest of the fee, as it argued that the transfer of the customer database did not comply with the GDPR. It claimed that the Plaintiff failed to ask for the customers’ consent and provided inaccurate and incomplete personal data - customers’ emails were missing. As a result, the Defendant argued that the Plaintiff did not comply with the acquisition agreement.


Can the Defendant’s claim based on the GDPR invalidate an acquisition contract?


The court held that the Plaintiff complied with the acquisition agreement and decided that the lack of consent does not constitute a breach of contract. The Plaintiff did not commit to obtain costumer’ consent and, the compliance with the GDPR was not part of the contractual obligations negotiated. Therefore, the parties did not agree that the Plaintiff would ask for consent and that the failure to do so should constitute a defect. The Court further explained that a GDPR infringement may be sanctioned with an administrative fine, which the Dutch DPA may impose on the parties involved. This does not mean that an acquisition agreement, in which data of third parties are 'traded', must be considered as invalid. Nor does it provide a ground for termination. Thus, the Defendant must pay the agreed purchase price, plus interests and the cost of the proceedings.


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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.


Team, court, and law

Hearing Location In Zwolle

Case number : 8403670 \ CV EXPL 20-1229

Judgment of February 9, 2021

in the case of the

[A] , h (x).oh.d.n. (X) ,

located at [location] ,

the plaintiff in the proceedings and the defendant in the goods, hereinafter referred to as [A]) ,

agent: mr M. A., Kerkdijk,


[B] , h (x).oh.d.n. TO SELECT [Y] ,

living and are located in [location] ,

the defendant is a party in the proceedings and the plaintiff in the goods, hereinafter referred to as [B] ,

authorized representative: mr. J. M. Eerkes.
1 , The procedure is

Earlier, in the court of judgment between the parties, the attention is focused on the 28th of July 2020. The court has determined that the case is appropriate for oral therapy.

The oral hearing took place on the 8th of October, 2020. In both [A] and [B] it, and the support of their attorneys. The authorized representative of [B] it has been written pleading will be presented. The clerk of the court has notes of what the party further to the fore in the first place.

After the conclusion of the hearing, the court determines that he has been advised to take a decision in this case. There has been a failure to give a ruling on the date that is before the parties have been informed. Therefore, make the decision today to be in this order are included and will be explained to the parties.
2 - The review
What is this thing?

[A] it has its customer base, to [B] sold for a sum of $ 9.000,00. [B] € 3.000,00 to be paid, but she refuses to even more of the customer base to pay for it. Therefore, [A], that is the court of [B] the condemned to the rest of € 6.000,00 to be paid, together with interest and costs. [B] it has a counter (counter-claim), which states that the court must determine that he is not more of [A] it is due.

What is the dispute between the parties, it is prefixed.

[A] was involved in window cleaning, from approximately 240 to private addresses in the regions of Hardenberg, the netherlands, Ommen, netherlands and in Lemelerveld. [A] has decided that from now on, more pest control services. For this reason, he presented his customer base is for sale. At the end of August 2019 and the [B] this is an award offered from € 9.000,00 inclusive of vat), payable in three installments.

At the beginning of september of 2019, it is one of the [B] began cleaning windows from the customers from all [A]). On september 19, 2019, the parties have a written agreement about the transfer of the customer base.

[B] for the first time, in the amount of € 3.000,00 to [A] be met. He refuses to accept the remainder of (A) to comply, in spite of A reminder to do so.

What is the [A] want.
2.5 in.

[B] will the court [B] the condemned to € 6.000,00 for him to pay for it. Because, the [B] were not made on time has been, he is, according to [A], also the compensation of the statutory commercial interest rate as well as the extrajudicial collection costs (€ 816,75 inclusive of vat). Finally, [A] and [B] for about the cost of this procedure is to be convicted and sentenced, the amount of nakosten included.

It is a defense against them with a [B] .

[B] has argued that, [A], at three points in the fulfilment of the obligations arising from the contract of sale, it is failed. [B] is of the opinion that he can do as he made the payment part of the € 3.000,00 to, and that he can't [A] is to be paid. According to [B], [A], the following three points have failed.

In the first place, the transfer to the customer base and not to the General Regulation of data Protection (AVG). The data is for private customers in the customer base, to [A] fall within the scope of the TYPES. That means that it is [A] on the customers's consent and had to ask for more information at [B] to be able to provide it. In accordance with [G] you can [A] do not rely on the "legitimate interest" from the AVG him from this obligation provides. There is therefore a lack of performance of the contract.

In the second place, the data from the customer list is not complete and in the correct form. [B] wanted to create the digital data is received, but will [A] have for a paper print-out of the customer base is presented. In addition, it is not for each and every client to the full name and e-mail address.

Finally, to answer the customer base is not up to the expectations of [B] them in. [B] thought about 240 customers (minus a 10% dropout rate) of the [A] and from now on, to be able to use. It is proven, however, is that about two-thirds of its provided customers with the services of one of the [B] did not want to take off. That is, according to the [B] to be marked as a default in the performance of the contract.

The fact that a [B] .

[B] features [B] in a letter of may 1, 2020, in the absence of informed, and ordered to have a sound customer base to us. [B] we shall [A] in addition, in the expectation that he will be the purchase is in part shall terminate as to [A] do not respond to this notice.
2.8 in.

As a counter-want to [B], that is, the sub-district court for the right to declare the contract by may 15, 2020, it is partially decomposed, in which the price is reduced to € 6.000,00. Like the district court, that claim is rejected, will the [B] (in the alternative) that the district court, the contract will still be partially dissolve, or more, in the alternative, the contract is partially destroys the c.q to change in order to remove the disadvantage is that [B] it has been with€ 6.000,00).
2.9 in.

To progress in [B] and [B] the cost of this procedure is to be sentenced by the court.

In the opinion of the court of first instance.

The court is of the opinion that ' [A] of its obligations under the contract of sale is effectively implemented. He, therefore, has a right to the payment of the agreed-upon purchase, so in the court of the [B] will impose an additional charge of € 6.000,00, together with interest and costs. [B] is the one who is in the wrong, it is argued, both in the convention and in goods. He is, therefore, the cost of the procedure to pay. The court will, in his judgment, hereafter explain.

The role of the AVG.

The AVG is, people will have more opportunities to support themselves, and to the processing of their personal data. To their rights of privacy are, in fact, strengthened, and expanded. It's an open question whether it is [A] was allowed to see the data from individual customers to any third party without having to struggle to cope with the AVG. As a rule, to the processing of personal data, namely: the permission is required, except in the case of a legitimate interest.

It is given that, to no one's consent is, however, provides no default in the performance of the contract. In the first place, because it's [A] and [B] is not the subject of discussion had taken place prior to the conclusion of the purchase contract. (B) that in each case, in accordance with the sales contract is not an obligation to have taken permission from his clients to get the data is to be transferred to [B] so , let's say that they do not have a warranty. Also, [B] and has not asked for a transfer in accordance with the provisions of the TYPES. The parties have not agreed that A permission request, and the failure to do so will have no defects. In so far as the court is an appeal by the [B] in a possible conflict with AVG moreover, it is also ideal for this.

In the second place, it is true that the act is in conflict with AVG and can be punished with an administrative fine, which is the Authority for the Personal data of data subjects may apply. But that doesn't mean that a rental agreement with data held by third parties is to be ‘dealt’ with the void is under threat. A reason for the termination does not occur.

The way in which the customer base is not supplied.

[B] is complaining about the fact that he's the customer base in the digital'd like to receive, but it is in paper form, it has been given. In addition, the absence of some of the customer information, including e-mail addresses. But the [D] has made it clear that he will [A] have asked the customer base is still the digital supply. He also did not address in A statement that he does not have an e-mail address of each and every customer. Last but not least, [B] such defects are not mentioned in his notice by may 1, 2020. These disorders may, in the opinion of the court does not lead to the conclusion that [A] has failed to perform.

Should the customer base is on the contract?

Upon receipt of the customer database of the [B] to the customers in the former stage of the [A] asked if he was with the cleaning has taken on A . About 37% of the assigned clients, it is indicated client to the glasbewassingsdienst of [B] . That is, the percentage does not exceed, notes, [W], if a defect in the performance of the contract.

The question of whether it is a low percentage of customers with the services of one of the [B] want to buy is considered a failure in the fulfilment of the obligations arising from the contract of sale, to be determined by agreement between the parties to the other Haviltex, standaardarrest of the supreme court, is to be found on the www.rechtspraak.nl with the feature, ECLI:NL:HR:1981:AG4158). In addition, it is not only important to consider how the (written) agreement of exactly sounds, but also parties, and is reasonably-of each other and should be expected.

The district court, it is considered that the interpretation of the contract, it is difficult to be connected with the agreement of the 19th of september, 2019. The agreement had previously been closed, and it come to fruition, because the [A] have agreed to a price of $ 9.000,00 [B] in the beginning of september of 2019, the former customers of the [A]) has been visited. According to section 2 gives [A] to [B] ‘the intangible assets, as defined in the Annex of Intangible assets in these terms and conditions. That has attachments to [A] are not required, so that the precise definition of ‘intangible assets’ are unknown to the court of first instance. In article 3, that is, [A] warrants, to ‘fully entitled’ the intangible asset, but it is difficult, it can be seen that a database is considered as a well, in which an individual owner you can be. To which this guarantee you will see it is not very clear. It is up to the court to which the parties cannot have intended for their specific events to be reflected in the written agreement. And it brings to the magistrate may cause the agreement is to establish, on the basis of what the parties involved in this procedure and further to the front in the first place.
Figure 2.17.

On that basis, it is clear that ' [A] its customer base, consisting of approximately 240 of the address, to [B] would have to transfer at € 9.000,00. That is not to be ruled out is that there is a business that is not registered as a client would like to be one of the [B] was a factor in that [B] all has been taken into account. He was, after all, from the fact that 10% could result. Or is that a percentage of it, or of any other failure prior to [A], it is discussed, it is not given or shown. Nor is there any provision on the procedure for the case that the percentage of failures is greater than expected. The statement that only 37% of actual client, it is now, which is [A], moreover, challenged, it has led not to the conclusion that [A] has failed to perform.

[B] we should continue to expect that the customer is the data of the people, would actually be a customer of the [A] had been prior to the conclusion of the purchase contract. [B] refers to as a default in the fulfillment of the contract by, among the 240 to customers, people are found, which are no longer clients. That would, in the opinion of the court is, indeed, a failure may result. This means that it is up to the [B] are to be set, and the procedure is to prove that the customer base and the customers had indicated their agreement with the [A] had already been terminated. [B] this is not a success. He has a single, non-dated messages are presented, which show that the customers will [A] have to be cancelled. One comment, it is clear that the customer has already been 2.5 years since the date of termination. The other responses are not included in the time. [B] there is, therefore, not be managed sufficiently documented to establish that [A] out of the current customer data will be acting on the basis of a defence against it by [A]).

Increase or change the obligations of the customer base flow, in the opinion of the court, not because of the agreement between the parties. This means that the customer base is on the contract between the parties. This is the fabric of the partial termination of the contract.

In fact argues the district court found that [B] another advantage of the agreement to me. (B) has retired and is committed to the region of [B] them. With the agreement of the [B] reaching him with less and less competitive in the region closest to you, to me.

Unable to rely on the mistake may be.

[B] it is to be faced with the unfortunate result of the transfer of the customer base, certainly not everyone in his company that they want to go. But that would justify, in the opinion of the court has no recourse to justice. The customers of the [A] have been informed that [A] it would stop, and it [B] was the service would be over. [B] did, and then be at the discretion of the customer; or it is in the future, would make his glasbewassingsdienst. That is, par excellence, a future event, depending on the wishes of the parties. For an unfortunate course of the future of the law is no protection in the form of a possible appeal to the mistake (6:228 (2) of the criminal Code).

The bottom line.

None of the defence of the [B] prosper, and the court points out that the counter-claim down. This means that [B] of the remaining purchase price of € 6.000,00 for [A] to pay for it. Unless otherwise rejected, he is the compensation of the statutory commercial interest rate.

[A] is progressing as compensation for the extra-judicial collection costs in the amount of $ 816,75 are inclusive of vat. [A] is the amount calculated in accordance with the Decision in consideration of the extra-judicial collection costs, and [B] will have no submissions. Consideration, therefore, is in place. The enhanced vat, subject, however, is not to be attributed. [A] act like an entrepreneur within the meaning of the turnover tax Act 1968, and it should be considered that the tax can be set off. The court will, therefore, are the fee is exclusive of vat, mapping, that is, an amount of € 675,00.

[B] is the one who is in the wrong, it is argued, both in the convention and in goods. He is, therefore, the cost of the procedure to pay. The district has
estimated that the costs to the edge of the [A] as follows: - € 86,85 to the issue of the writ of summons, which is € 236,00 to the charge that ' [A] of the court has been paid, and $ 933,00 because of the salary authorized (3,0 points) times the rate of € msrp 311,00), in a total of € 1.255,85. The nakosten are rated at a maximum rate of $ 124,00.
3 of The decision

For the court:

condemn [B], with solid evidence of a discharge payment to the [A], an amount of $ 6.675,00, together with statutory interest as referred to in article 6:119a BW on:

- € 3.000,00 to november 1, 2019; and

- € 3.000,00 and 29 november, 2019

up until the day that everything has been paid.

condemn [B] on the costs of the proceedings up to the present day, on the edge of the [A]) has been budgeted at $ 1.255,85, and $ 124,00 for nakosten;
Section 3.3.

agree with this judgment is enforceable;

pointing to the lake, or otherwise expert finish.

This decision has been taken by mr. M. A. M. Essed, district court judge, and the public expressed on the 9th of February 2021.