Rb. Rotterdam - C/10/585969 / KG ZA 19-1184

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Rb. Rotterdam - C/10/585969 / KG ZA 19-1184
CourtsNL.png
Court: Rb. Rotterdam (Netherlands)
Jurisdiction: Netherlands
Relevant Law: General mention of the GDPR
Decided: 6. 1. 2020
Published: 7. 2. 2020
Parties: QUION HYPOTHEEKBEGELEIDING B.V.
National Case Number: C/10/585969 / KG ZA 19-1184
European Case Law Identifier: ECLI:NL:RBROT:2020:211
Appeal from: n/a
Language: Dutch
Original Source: de Rechtspraak (in NL)

The District Court of Rotterdam issued a judgement on the claim to remove personal data from the financial blacklists, including data relating to criminal records.

English Summary[edit | edit source]

Facts[edit | edit source]

The complainant was added in the blacklists maintained by the Dutch financial institutions for the period of four years based on three wrongdoings, registered by the mortgage advisor Quion:

  • Running a cannabis farm in an apartment the complainant was still paying mortgage for;
  • Not using that apartment as her own place of residence;
  • Not notifying Quion about her employment termination before signing the mortgage agreement.

Dispute[edit | edit source]


Holding[edit | edit source]

The Court found the following:

  • Running a cannabis farm is a criminal offence. For this information to be added in financial blacklists, it must be sufficiently established that the complainant has indeed been involved in the crime. This was not the case in this lawsuit, so Quion was ordered to remove this record from the internal blacklist;
  • Quion was ordered to remove the record about not using the apartment for own residence from the external blacklist but could keep it in the internal list;
  •  Quion was ordered to remove the record about the failure to inform about the complainant’s employment termination from the external blacklist but could keep it in the internal list.

The decision was based almost entirely on the rules of the anti-fraud blacklist maintained by the Dutch financial institutions (“Protocol Incidentenwaarschuwingssysteem Financiële Instellingen”). One of the conditions for adding a person to these blacklists is proportionality, meaning that the interest of the financial institutions must outweigh the possible negative consequences of being added to this blacklist for the individuals. In this case the judge decided that Quion did not strike the right balance because the complainant kept paying the mortgage on time and there no damage was caused to the apartment or to the financial institutions.

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Further Resources[edit | edit source]

Article from the website of Autoriteit persoonsgegevens (in NL)

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.

DECISION

2.1.

In 2016 [plaintiff] requested a mortgage offer from Dynamic Credit Hypotheken B.V. (hereafter: Dynamic Credit), in connection with the purchase of the apartment located at the [address] in Rotterdam (hereafter: the apartment). On 12 May 2016 [plaintiff] received an offer. In that offer is stated:
4.1

When may we withdraw (cancel) the offer?

We may withdraw the offer in the following situations. You will then no longer be able to use the offer.

(…)

- If you or your advisor hasn't given us all the information

- If you or your advisor has given us false information

(…)

- If your situation has changed, as a result of which the information you provided previously has not

more correct or complete.
2.2.

[plaintiff] has accepted the offer made by Dynamic Credit (which also trades under the name BijBouwe). On 6 July 2016, the mortgage deed was passed. It says herein:
6.2

Stipulations from the General Terms and Conditions which are expressly stipulated

The General Terms and Conditions include the provisions set out below under (a) to (m) which, to the extent necessary, are hereby also expressly stipulated in this Mortgage Deed. (…)

(a) (…)

(b) Own occupancy

You may only use the Collateral to live with your family. You may therefore not allow anyone other than yourself (with Your family) to use the Collateral (without written permission from BijBouwe).

(c) (…)

(d) Good maintenance

You are required to properly maintain and use the Collateral in accordance with the law. You may not change the way you use the Collateral. If You have damage to the Collateral, it must be repaired quickly.

(…)
2.3.

[plaintiff] has at some point bought a second apartment. That apartment was delivered to her on 9 October 2018 and she moved into it.
2.4.

On 25 March 2019 an inspector from the Municipality of Rotterdam found a hemp nursery in the apartment at the [address] . The municipality informed [claimant] and Quion/Dynamic Credit of this.
2.5.

On 10 July 2019 Dynamic Credit informed [plaintiff] that, as a result of

detected irregularities in violation of the general conditions, including the presence of a hemp nursery in the apartment, terminates the mortgage loan. [plaintiff] then sold the apartment and repaid the entire debt to Dynamic Credit.
2.6.

By letter dated 1 July 2019, Quion informed [the plaintiff]:

The financing has been provided under the condition that the property may only be used for own residential purposes. There is no evidence that the collateral was purchased with the intention of using it for own residential purposes. The fact that a property was purchased in December that you did not occupy until recently supports the suspicion that the property was not purchased for your own occupation.

There has been a hemp nursery in the premises which caused serious dangers for the surrounding area. You have stated that the premises were not in use by you during the period that a hemp nursery was established in the premises. Case law shows that the owner of a property may be assumed to be familiar with everything that is in his home. This in combination with the fact that it has not been demonstrated that the property was actually let makes us consider you responsible.

Finally, there is concealment with regard to termination of employment. It is certain that the employment contract was terminated before or, at the latest, immediately after passing through.

We therefore consider it necessary to include your personal details and the incident in question in Quion Groep B.V.'s Incidents Register and in the External Referral Register.

(...) Your data will be recorded for a maximum period of eight years.
2.7.

On 9 August 2019, [plaintiff] objected to the inclusion of its data in the Quion Incidents Register and the External Referral Register (hereinafter also referred to as: the registers).
2.8.

In response, Quion has indicated to [plaintiff] that it will maintain the registration in the Registries, but that the duration of the registration will be reduced to four years because there have been no arrears during the term of the loan, and [plaintiff].

cooperated in a private sale of the collateral, which meant that no residual debt arose.
3 The dispute
3.1.

Plaintiff] primarily claims that the Interim Injunction Judge should order Quion by judgment, enforceable in stock, to remove and keep deleted all records relating to it in the Quion Incidents Register and the External Referral Register within five days after service of the judgment, on pain of forfeiture of a penalty of € 1,000.00 per day. The subsidiary claim of [plaintiff] seeks the removal and retention of registrations in (only) the External Referral Register. In addition, [plaintiff] claims that Quion should be ordered to pay the costs of these proceedings.
3.2.

Quion's primary defence is that it was not it, but Dynamic Credit that should have been summoned. Quion submits the following in that regard. Dynamic Credit has outsourced the supervision of the management of its mortgage loans to Quion. As part of its management task, Quion investigates incidents relating to customers of financiers such as Dynamic Credit. Quion has therefore investigated the hemp nursery in the apartment, whether [plaintiff] bought the apartment with the intention to live there, and her income situation in the period of the mortgage application. Quion must, among other things, comply with the Protocol Incident Warning System for Financial Institutions. If it detects a (possible) incident, it must register the details of the person concerned in its Incidents Register. Quion then advises the financier to take over. It is then up to the financier, in this case Dynamic Credit, to decide whether or not to register in the External Referral Register on the basis of that advice. A registration in the External Referral Register then refers to the personal data in Quion's Incidents Register. If the funder decides to register in the External Referral Register, Quion will actually do so on behalf and in the name of this funder. Quion cannot independently undo this registration. At most, it can ask the funder to instruct it to do so.
3.3.

[plaintiff] stated at the hearing that Quion's attorney at law would let her attorney at law know before issuing the summons for whom he is acting (Quion or Dynamic Credit), that he has not done so, and that Quion's attorney at law has been chosen for the summons because of both the letter of 1 July 2019, in which she has been notified of the inclusion of her data in the Quion Incidents Register and the External Referral Register, if the response to her objection originates from Quion, and Dynamic Credit is not mentioned in those letters.
3.4.

Against this background, the Interim Injunction Judge reads the claims of [Plaintiff] so as to claim that Quion be ordered to remove and keep removed all registrations relating to [Plaintiff] from the Quion Incidents Register, and to have all registrations relating to [Plaintiff] from the External Referral Register removed and kept removed. It appears from the proceedings at the hearing that Quion also read the claims as such.
3.5.

3.5. [Claimant] substantiates its claims as follows. Inclusion in the registers of the fact that a hemp farm has been operated in her home is only allowed if it has been sufficiently established that she was involved in this. This is not the case. The unauthorised letting of the apartment/failure to comply with the obligation to live in the apartment and the failure to report the fact that she quit her job in the period before she passed the mortgage deed do not justify the inclusion of her personal data in the registers.
3.6.

Quion concludes by dismissing the claims and ordering [the plaintiff] to pay the costs of the proceedings. Quion takes the view that the mere presence of a hemp grower in a dwelling subject to a mortgage right qualifies as an incident within the meaning of the Protocol on the Alerting of Incidents by Financial Institutions. This considerably increases the risk of fire, while the financial institution is partly dependent on the state of the collateral for the repayment of its loan. This incident is therefore rightly included in the Incidents Register, according to Quion.

Quion further takes the position that it has advised Dynamic Credit on good grounds to include [plaintiff's] referral data in the External Referral Register. It argues the following in this respect. The hemp nursery was located in [plaintiff's] apartment. This justifies the assumption that she was the operator of it. At least it may be assumed that she was aware of this and nevertheless did not take any action against it. It is up to [plaintiff] to disprove this justified premise with documentary evidence. She does not go any further than an unsigned rental agreement drawn up in Dutch, which would have been concluded between parties who do not speak Dutch. Moreover, the story about renting out the apartment rattles on all sides. According to the lease, the rental started in August 2018. However, [the plaintiff] has stated to Quion that at the time the nursery was discovered, in March 2019, she had already been renting out the apartment for twelve months. On the other hand, in her notice of objection against the inclusion of her details in the registers, her lawyer writes again that the apartment had been let since October 2018. This would have been done in order to avoid double housing costs. [plaintiff] bought a second apartment in that period. However, [plaintiff] could also have lived in the first apartment in order to avoid double housing costs. In addition, there is nothing to show that [plaintiff] bought the apartment at the [address] with the intention to live there herself and that - by not reporting that she had quit her job - she deprived Dynamic Credit of the opportunity to assess her actual income position at the time of the mortgage application. For a potential mortgage lender, it is essential that the applicant is correctly informed about his/her salary. The amount of the salary and the certainty that this will be enjoyed in the future directly determine the size of a mortgage loan.
3.7.

The arguments of the parties relevant to the assessment of the claim are discussed below.
4 The assessment
The urgency of the matter
4.1.

Article 254 of the Rv provides that the judge in preliminary relief proceedings in urgent cases in which, in view of the interests of the parties, an immediate interim injunction is required, is authorized to give it. There is an urgent case in the sense referred to above if the plaintiff cannot be required to await the outcome of any proceedings on the merits.
4.2.

The purpose of registration in the Incidents Register of a financial institution is - in brief - to safeguard the safety and integrity of the financial sector (Article 4.1.1 of the Protocol Incidents Warning System for Financial Institutions (hereinafter: the Protocol)). The Incidents Register is linked to an External Referral Register, which contains referral data (such as a person's name and date of birth). This register can be consulted by other financial institutions. After another financial institution has determined that a certain person is included in the External Referral Register, this institution can consult the data in the Incidents Register of the other financial institution (Article 5.1.1 of the protocol). Access to the External Referral Register includes banks and insurers. The inclusion of Referral Data in this Register therefore has potential adverse consequences for the assessment of an application submitted by [plaintiff] for, for example, the opening of a bank account, the taking out of a money loan or the taking out of an insurance policy. As a result, she cannot be expected to await the outcome of any proceedings on the merits.

The assessment framework
4.3.

In the Incidents Register of a financial institution, data are recorded as a result of or relating to a (possible) incident, with the aim of supporting activities aimed at guaranteeing the security and integrity of the financial sector, as evidenced by the definition given in point 2 of the protocol. According to the protocol, an incident is understood to mean an event that has, could have or has had the consequence that the interests, integrity or safety of the clients or employees of a financial institution, the financial institution itself or the financial sector as a whole are or could be at stake, such as the falsification of notes, identity fraud, skimming, embezzlement in employment, phishing and deliberate deception.
4.4.

As stated above, an External Referral Register is linked to the Incidents Register. The inclusion of personal data in these registers can be regarded as a processing of personal data to which the General Data Protection Regulation (GTC) (applicable since 25 May 2018) applies. The protocol offers sufficient guarantees for processing personal data as prescribed by the GDPR. The protocol therefore serves as a starting point when assessing whether the inclusion of [plaintiff's] personal data in the registers is justified.
4.5.

Article 5.2.1 of the protocol stipulates that a financial institution must include in the External Referral Register referral data of (legal) persons who meet the criteria mentioned under a and b below, after application of the proportionality principle mentioned under c below.

(a) The conduct(s) of the (legal) person(s) constituted, constituted or may constitute a threat to (I) the (financial) interests of clients and/or employees of a financial institution, as well as the (organisation of the) financial institution(s) themselves or (II) the continuity and/or integrity of the financial sector.

(b) It is sufficiently established that the (legal) person concerned is involved in the conduct(s) referred to under (a). This means that, in principle, criminal offences are reported or complaints made to an investigating officer.

(c) The principle of proportionality shall be observed. This means that security matters will determine that the importance of inclusion in the External Referral Register takes precedence over the possible adverse consequences for the person concerned as a result of the inclusion of his or her personal data in the External Referral Register.
4.6.

With respect to the processing of criminal personal data in the registers, a conviction by the criminal court is not required. However, the data must be sufficiently certain. This means that there must be such concrete facts and circumstances that they can carry a statement of evidence that qualifies as a criminal offence within the meaning of Article 350 of the Code of Criminal Procedure. This is the case if the established conduct gives rise to a heavier suspicion than a reasonable suspicion of guilt (HR 29 May 2009, ECLI:NL:HR:2009:BH4720, r.o. 4.4). This principle is also laid down in the annex to the protocol. This states: 'The basic principle is that it must be possible to demonstrate in legal proceedings that there is sufficient evidence to qualify as fraud or other improper or punishable conduct in relation to a (legal) person demonstrably involved. If one of these elements is missing, no registration should take place. They constitute the criteria set out in Article 5.2.1(a) and (b)'.

The claim
4.7.

From Quion's letter of 1 July 2019 (cited above under 2.6), Quion's response to [the plaintiff's] notice of objection and Quion's explanation of this at the hearing, it appears that the registration relates to three incidents: the operation of the hemp farm in the mortgaged apartment, not using the apartment for her own occupation, and the concealment of the termination of her employment.
4.8.

The operation of a hemp farm is a criminal offence. In order to be allowed to include this information in the registers, it must be sufficiently clear from the assessment framework outlined in 4.6 that [the plaintiff] was involved in committing that offence. This has - in the provisional opinion - proved to be insufficient. Speech must be of such concrete facts and circumstances that they can bear a statement of evidence to be qualified as a criminal offence within the meaning of Article 350 of the Code of Criminal Procedure. The mere fact that a hemp farm was found in the apartment of which [the plaintiff] is the owner, now that it must be held that [the plaintiff] (as she states and does not contradict Quion) did not live there in that period, is insufficient for that purpose. The state of affairs surrounding the letting of the apartment by [plaintiff] to the person who (according to the documents submitted by [plaintiff]) is suspected by the Public Prosecution Service of exploiting the hemp farm and the fact that [plaintiff] quit her job during the period of the mortgage application does raise questions, but are - in the preliminary opinion of the Interim Injunction Judge - insufficient to be able to conclude that there are facts and circumstances that can support a statement of evidence with regard to complicity in, or complicity with, the cultivation of hemp. For the conclusion that it has been sufficiently established that there is a criminal offence - for the time being - there is therefore no ground. As a result, this incident may not be included in the Incidents Register. The primary claim is therefore granted to the extent that it serves to remove this incident from Quion's Incidents Register.
4.9.

The Court in preliminary relief proceedings considered the following with regard to the failure to use the apartment for personal occupation and the concealment of the termination of the employment contract.
4.10.

That - as Quion stated - the apartment was never used by her for her own residence is disputed by [the plaintiff]. However, she does acknowledge that at some point she started living in another apartment (i.e. the apartment she bought in October 2018). She also acknowledges that - as Quion states - she quit her job before passing the mortgage deed and that she did not report this to Quion/Dynamic Credit. These are - in the preliminary opinion of the Court in preliminary relief proceedings - events as a result of which the interests of Dynamic Credit may be at stake and whose inclusion in the Incidents Register of a financial institution as Dynamic Credit is in accordance with the purpose of the Incidents Register. It is in a mortgagee's interest that all relevant information is provided by the applicant and that, if the situation has changed, this is passed on by the applicant. After all, as Quion argues, the amount of the salary and the certainty that this will be enjoyed in the (near) future determine the size of the loan. The offer also shows that Dynamic Credit reserves the right to withdraw the offer if the situation of the applicant has changed to such an extent that the previously provided information is no longer correct or complete, or if not all or wrong information has been provided. A mortgagee also has an interest in compliance by the mortgagor with the obligation laid down in the mortgage deed and the General Mortgage Conditions to occupy the collateral himself/herself, and the related obligation to properly maintain and use the collateral in accordance with the law. If these obligations are breached, the value of the collateral may be adversely affected.
4.11.

For the time being, the Court in preliminary relief proceedings deems it insufficiently plausible that the inclusion of these two incidents in Quion's - internal - Incidents Register is contrary to the principle of proportionality. The claim is therefore dismissed insofar as it seeks the removal of the data relating to these two incidents from Quion's Incidents Register.
4.12.

With respect to the inclusion of [plaintiff's] reference data in the External Referral Register, the Court in preliminary relief proceedings considered the following.
4.13.

The protocol prescribes that the principle of proportionality must be complied with. That is to say, it follows from Article 5.2.1 sub c of the protocol that the importance of including personal data in the External Referral Register takes precedence over the possible adverse consequences of this for the person whose personal data are included in the register (the data subject).
4.14.

A possible adverse consequence of inclusion in the External Referral Register is that the data subject's application for a financial product, such as a bank account, a loan or insurance, is refused by a financial institution that has access to the External Referral Register.
4.15.

The Interim Injunction Judge attributes - as a preliminary opinion - a heavier weight to this possible consequence for [plaintiff] than to the interest of financial institutions in the inclusion of [plaintiff's] personal data in the External Referral Register. In this consideration the Court in preliminary relief proceedings takes into account that the conduct referred to under 4.9 ff. above - not punishable - is of relatively minor seriousness and that this conduct has not caused any disadvantage to Dynamic Credit. It is certain that there has never been a delay in the payment of interest and redemption and also that the value of the apartment has not been affected to such an extent that the proceeds of the private sale of the apartment were insufficient to be able to pay the debt of [plaintiff] to Dynamic Credit in full.
4.16.

Now that the inclusion of [plaintiff's] personal data in the External Referral Register is deemed disproportionate for the time being, the second part of the primary claim is also awarded.
4.17.

The Court in preliminary relief proceedings assumes that Quion will comply with the judgment and therefore sees no reason at this time to impose a penalty payment.

The costs of the proceedings
4.18.

Since both parties are partly in the right and partly in the wrong

the costs of the proceedings are offset, each party being ordered to bear its own costs.