Rb. Zeeland-West-Brabant - AWB- 20 6846

Rb. Zeeland-West-Brabant - AWB- 20_6846
Court:	Rb. Zeeland-West-Brabant (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 12(3) GDPR Algemene wet bestuursrecht Article 34 Uitvoeringswet Algemene Verordening Gegevensbescherming Algemene wet bestuursrecht
Decided:	13.08.2020
Published:	03.11.2020
Parties:	Tax officer of the municipality of Bergen op Zoom
National Case Number/Name:	AWB- 20_6846
European Case Law Identifier:	ECLI:NL:RBZWB:2020:3789
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

Court considered that pursuant to Article 12(3) GDPR, data controllers must provide data subjects with information on Article 15 to 22 requests without delay and in any case within one month of receipt. Article 34 GDPR Implementation Act (“UAVG”) states that a written decision on the request is a decision within the meaning of the Dutch Administrative law.

English Summary

Facts

On 4 June 2020 the plaintiff lodged a complaint against the tax officer’s failure to decide on his objection to the result of the access request. Under the Dutch Administrative law, public authorities are obliged to issue decisions within specific timelines, otherwise they should pay a penalty.

Holding

The Court found that the tax officer has indeed failed to decide on the plaintiff’s objection.The case is mostly based on the Dutch Administrative law.

GDPR-wise, the Court considered that pursuant to Article 12(3) of the GDPR, data controller must provide data subject with the information on Article 15 to 22 requests without delay and in any case within one month of receipt. Article 34 of the GDPR Implementation Act states that a written decision on the request should be deemed as a decision within the meaning of the Dutch Administrative law.

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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.

Ruling

COURT SEAGOING WESTBRABANT
Administrative law
Case number: BRE 20/6846 AVG
judgment of 13 August 2020 of the single chamber in the case between
name plaintiff] , at [place name] , plaintiff,
authorised representative: [authorised representative] ,
and
the tax officer of the municipality of Bergen op Zoom, defendant.
Proceedings
By letter of 4 June 2020, the claimant's authorised representative appealed against the failure of the charging officer to take a decision in due time on the claimant's objection to the request for access to personal data under the General Data Protection Regulation (AVG).

The court has decided to speed up the handling of the appeal, pursuant to section 8.2.3 of the General Administrative Law Act (Awb).
The court then applied Section 8:54(1) of the General Administrative Law Act (Awb), so that no hearing was required.
Considerations
1. On the basis of the documents, the court shall proceed on the basis of the following facts and circumstances.

By decision of 12 December 2019 (primary decision), the tax officer decided on the request for access to personal data under the AVG.
The claimant's authorised representative objected to the primary decision by letter of 29 January 2020.
By letter of 20 April 2020, the authorised representative of the claimant informed the tax officer that no action had been taken since the objection had not yet been decided on. The representative of the claimant requests the levy official to decide on the objection as soon as possible.
On 17 June 2020, the authorised representative of the claimant filed a digital appeal against the failure of the tax officer to take a decision on the claimant's objection in time.
The levy official submitted documents and a statement of defence by letter dated 2 July 2020.
2. An appeal may be lodged against the failure to take a decision in time (Section 6:2, opening words and under b, in conjunction with Section 7:1, subsection 1, opening words and under f, of the General Administrative Law Act). The notice of appeal may be submitted as soon as the administrative body is in default of taking a decision on time and two weeks have passed since the administrative body received a written notice of default (Section 6:12(2) of the General Administrative Law Act). The administrative body shall decide on the objection within six weeks of the day on which the objection period has expired (Section 7:10(1) of the General Administrative Law Act). If the levy official sets up an Advisory Committee on Objections, the decision period shall be twelve weeks after the day on which the objection period has expired (Sections 7:10, first paragraph, and 7:13 of the General Administrative Law Act).

3. The levy official submitted documents and a statement of defence by letter dated 2 July 2020. The tax officer wrongly assumed that the appeal did not decide in time on the claimant's objection to the additional assessment for parking tax. It is clear from the notice of appeal of 4 June 2020 that the authorised representative of the claimant is appealing against the failure to decide in time on the objection of 29 January 2020 against the decision of 12 December 2019 deciding on the request for inspection under the AVG of 1 December 2019.

Now that the duty officer has failed to fulfil his obligation to submit the correct documents and a statement of defence focused on this appeal, the Court finds that the claimant's agent submitted an application for inspection under the AVG by letter of 1 December 2019.
Pursuant to Article 12(3) of the AVG, the data controller shall provide the data subject with information on the action taken on the request pursuant to Articles 15 through 22 without delay and in any event within one month of receipt of the request. Article 34 of the General Data Protection Implementation Act states that a written decision on the request shall be deemed to be a decision within the meaning of the General Administrative Law Act.
In spite of the absence of a reference for a remedy, the court deems the letter of 12 December 2019 to be a decision within the meaning of the General Administrative Law Act (Awb), which was objected to in good time by letter of 29 January 2020. Subsequently, the District Court finds that the levy official - if she makes use of an Advisory Committee on Objections - should have made a decision by 16 April 2020 at the latest. This decision period has been exceeded. The District Court also found that the claimant's representative validly declared the levy official in default by letter of 20 April 2020 and that (more than) two weeks had elapsed since then.
The appeal is manifestly well founded.
4. Article 4:17 of the General Administrative Law Act stipulates that if a decision is not taken on time, the administrative body shall owe a penalty for each day that it is in default for a maximum of 42 days. The penalty shall be € 23 per day for the first fourteen days, € 35 per day for the following fourteen days and € 45 per day for the remaining days. The administrative body shall determine the periodic penalty payment within two weeks after the last day on which the periodic penalty payment was due (Section 4:18(1) of the General Administrative Law Act).
The levy official has not determined the amount of the periodic penalty payment. The court will still do so pursuant to Section 8:55c of the General Administrative Law Act. The court finds that the notice of default is dated 28 November 2019 and was received by the levy official on 3 December 2019. The court finds that more than 42 days have elapsed since two weeks after receipt of the notice of default, and that the duty officer has still not decided on the notice of objection. The District Court therefore ruled that the levy official has now forfeited the maximum amount of € 1,442 in periodic penalty payments.
5. Pursuant to Section 8:55d(1) of the General Administrative Law Act (Awb), if the appeal is well-founded and a decision has not yet been announced, the court shall decide that the administrative body shall publish a decision within two weeks of the day on which the decision is sent.

In view of the measures currently in force in the Netherlands to prevent the spread of the corona virus COVID-19, the District Court is of the opinion that there is now a special situation as referred to in Section 8:55d(3) of the Awb. The District Court will therefore determine that the duty officer must still make and send a decision within four weeks of the day on which this ruling is sent.
Pursuant to Article 8:55d(2) of the Awb and in accordance with the national policy (published on www.rechtspraak.nl), the court will determine that Rijkswaterstaat owes a penalty payment of € 100 for each day by which the aforementioned period is exceeded, with a maximum of € 15,000.
6. Because the court declares the appeal to be well-founded, the court determines that the duty officer reimburses the plaintiff for the court fee he has paid.
7. In addition, the court shall order the levy official to pay the legal costs incurred by the plaintiff. The costs of the proceedings shall be calculated in accordance with the Decree on Administrative Law Costs. The duty officer shall be ordered to reimburse the costs of legal assistance. The court sets these costs at € 262.50 (1 point for filing the appeal with a value per point of € 525.00 and a weighting factor of 0.5). The court is of the opinion that this case is of light weight, because the case only concerns the question whether the decision period has been exceeded and whether a penalty payment is due.

Decision
The court:
-
declares the appeal to be well founded;
-
nullifies the failure to take a decision on the appeal in due time, which is equivalent to a decision;
-
instructs the levy official to publish a decision on the objection within four weeks of the date of dispatch of this ruling;
-
sets the penalty payment forfeited by the tax officer at € 1,442;
-
provides that the tax official shall forfeit to the claimant a penalty payment of € 100 for each day by which he exceeds the aforementioned period, up to a maximum of € 15,000;
-
instructs the tax officer to compensate the claimant for the court fee of € 178;
-
orders the tax officer to pay the applicant's legal costs up to an amount of € 262.50.
This judgment was rendered by P.H.J.G. Römers, judge, in the presence of D. Alblas, registrar. The decision was pronounced in public on 13 August 2020.
registrar judge
Copy sent to parties on:
What can you do if you disagree with this statement?
This ruling can be appealed to this court within six weeks of the day it was sent. The person lodging the objection may be asked to be heard on the objection.