Difference between revisions of "Rb. Zeeland-West-Brabant - AWB- 20 7155 VV"

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Rb. Zeeland-West-Brabant - AWB- 20_7155 VV
Courts logo1.png
Court: Rb. Zeeland-West-Brabant (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 6(1)(e) GDPR
Article 6(1)(f) GDPR
Article 21 GDPR
Article 34 Uitvoeringswet Algemene verordening gegevensbescherming,UAgv
Wet gemeentelijke schuldhulpverlening
Decided: 14.07.2020
Published: 17.07.2020
Parties:
National Case Number/Name: AWB- 20_7155 VV
European Case Law Identifier: ECLI:NL:RBZWB:2020:3052
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Uitspraken (in Dutch)
Initial Contributor: Maria Lohmann

The court held that an entry in a credit registry that precludes somebody from obtaining a credit has to be deleted if the interests of the data subject outweigh the responsible granting of mortgages of the Municipal Executive.

English Summary[edit | edit source]

Facts[edit | edit source]

The data subject went through a debt assistance process at young age, due to medical costs and costs of her studies. However, she did her utmost to get rid of her debts. Now she has a stable job and would like to purchase a house. The registration in the credit registry was decisive in the refusal to grant a mortgage and the documents do show that in any event Rabobank and ING do not grant a mortgage if there is such a registration. The applicant cannot obtain a mortgage with the current registration, or it is very difficult and on much less favourable conditions.

Dispute[edit | edit source]

Does an entry in a credit registry that precludes somebody from obtaining a credit has to be deleted if the interests of the data subject outweigh the responsible granting of mortgages.

Holding[edit | edit source]

The applicant cannot obtain a mortgage with the current registration, or it is very difficult and on much less favourable conditions. The applicant therefore has a substantial interest in deleting this registration in light of the actual reason for the debt assistance programme and her development.

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

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.


Authority
    Court of Zeeland West Brabant
Date of pronunciation
    14-07-2020
Date of publication
    17-07-2020 
Case number
    AWB- 20_7155 VV
Jurisdictions
    Administrative law
Special features
    Provisional provision
Content indication

    Assign request delete name registered coding at the BKR
Sites
    Rechtspraak.nl
    Enriched pronunciation 

Ruling
SEAS-WEST BRABANT COURT

Administrative law

Case number: BRE 20/7155 AVG VV
judgment of 14 July 2020 of the court in preliminary relief proceedings in the case between
[name of applicant] , at [address for service] , applicant,

Agent: Mr. H.F.A. Notenboom,

and
the Municipal Executive of the municipality of Breda, defendant
Process sequence

The applicant objected to a decision of the College of 12 June 2020 concerning the refusal to remove a coding at the Bureau Kredietregistratie (BKR). It applied to the Interim Injunction Judge for interim relief.

The hearing took place in Breda on 9 July 2020. The applicant appeared, assisted by her agent. The Board was represented by R.H.E.M. van de Sanden.
Considerations

1. On the basis of the documents and the proceedings at the hearing, the Interim Injunction Judge will assume the following facts and circumstances.

The applicant has gone through a debt assistance process. This process was completed on 3 April 2008. Because of this process, the applicant is registered in the Central Credit Information System (CKI) at the Credit Registration Office (BKR) with a debt arrangement (SR).

On 28 May 2020, the applicant requested, with reference to Article 21 of the General Data Protection Regulation (AVg), that the registration with the BKR be deleted.

By the contested decision, the College refused to delete the registration.

2. The applicant has, in summary, submitted that it wishes to purchase a dwelling. Since it is registered with the BKR, it cannot obtain a mortgage. She applied to the Court in preliminary relief proceedings for a ruling that the College must remove the SR coding.

3. Pursuant to Section 8:81(1) of the General Administrative Law Act (Algemene wet bestuursrecht, Awb), the interim relief judge of the court that has jurisdiction or may become competent in the main proceedings may, on request, make an interim injunction if the interests involved so require.

The Interim Injunction Judge states first and foremost that when taking a decision on a request for interim relief, a preliminary opinion on the lawfulness of the contested decision plays an important role. Furthermore, that decision must be the result of a balancing of interests, considering whether implementation of the contested decision would cause a disproportionate disadvantage to the applicant in relation to the interest to be served by immediate implementation of that decision.

The judgment of the Court in preliminary relief proceedings is provisional in nature and does not bind the court in proceedings on the merits (if any).

4. Article 4(7) of the AVG stipulates, in so far as relevant here, that the controller is understood to be: a natural or legal person, a government agency, a service or other body that, alone or together with others, determines the purpose of and the means for processing personal data.

Article 21(1) of the AVG provides that the data subject has the right to object at any time to the processing of personal data relating to him/her on the basis of Article 6(1)(e) or (f) of Article 6(1), including profiling on the basis of those provisions, for reasons relating to his/her specific situation. The controller shall discontinue the processing of personal data unless he or she establishes compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or which are related to the institution, exercise or justification of legal proceedings.

Article 34 of the Avg Implementing Act stipulates, insofar as relevant here, that a written decision on a request as referred to in Articles 15 to 22 of the Regulation, insofar as it has been taken by an administrative body, is considered a decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht, Awb).
5.1

The Court in preliminary relief proceedings will first consider whether it is competent to decide on a request for interim relief. In answering this question it is important, among other things, who should be regarded as controller as referred to in Article 4(7) of the General Municipal Bye-Law.
5.2

The Municipal Debt Assistance Act (Wgs) entered into force on 1 July 2012. Pursuant to this Act, the Municipal Executive is responsible for providing debt assistance to the residents of its municipality.

The Municipal Executive has mandated the implementation of the Wgs to the Kredietbank. This means that the Kredietbank acts on behalf of the Municipal Executive as far as debt assistance is concerned. Decisions regarding debt assistance must therefore be regarded as decisions within the meaning of the Awb.
5.3

It is not disputed that the applicant's BKR registration is based on the implementation of the Wgs. The Kredietbank has had the applicant's personal data included in the BKR. Because the registration is related to the Wgs, this registration was made on behalf of the Municipal Executive. The Municipal Executive must therefore be regarded as the controller as referred to in the Wgs.
5.4

In view of what has been considered above and also in view of the provisions of Section 34 of the Avg Implementation Act, the Court in preliminary relief proceedings is authorised to decide on the request for interim relief.

6. The Court in preliminary relief proceedings is of the opinion that the urgency of the applicant's interest has been made sufficiently plausible. After all, the applicant has signed a provisional sales contract in which the resolutive condition must be invoked no later than 29 July 2020. If its request for removal of the BKR registration is only made clear after that date, it will have to invoke the resolutive condition in order not to incur high costs. As a result, it will not be possible for her to purchase the home she wants. This results in a sufficiently urgent interest.
7.1

Pursuant to Article 21 of the Avg, a balancing of interests must be carried out if a data subject requests that his or her data be deleted.
7.2

In summary, the Municipal Executive has argued that the purpose of credit registration is to promote socially responsible lending. In this context, it is important that consumers are protected against excessive lending and that a contribution is made to limiting the financial risks involved in granting credit. A credit registration can contribute to the assessment of whether a (new) loan is responsible. Furthermore, the Board wonders to what extent there has been an improvement in behaviour now that the applicant wishes to purchase a home for an amount that does not qualify for the National Mortgage Guarantee (NHG).
7.3

The applicant has argued that it has a major interest in being able to purchase the house in question. In that connection, she pointed to the wish to start living together, the travel distance between her work and the home she wanted and the fact that her parents-in-law live in the same street as where the desired new home is located.
7.4

It must be admitted to the Municipal Executive that the documents submitted by the applicant did not contain any explicit rejections from individual mortgage lenders showing that the BKR registration was decisive in the refusal to grant a mortgage. However, the documents do show that in any event Rabobank and ING do not grant a mortgage if there is an SR registration. Partly in view of what was explained during the hearing, the Court in preliminary relief proceedings was of the opinion that it is sufficiently plausible that the applicant cannot obtain a mortgage with the current BKR registration, or that it is very difficult and on much less favourable conditions, because of the SR registration. The applicant therefore has a substantial interest in deleting this registration.
7.5

The Court in preliminary relief proceedings is of the opinion that in this specific case the interests of the Municipal Executive do not outweigh those of the applicant. The following is involved in this.

The debts of the applicant that gave rise to the debt assistance process arose at a young age. The fact that she had already started room training at the age of 16 and had to move into independent accommodation at the age of 18 is also important in this regard. It has been uncontested that the payment arrears arose in particular as a result of the combination of the costs of her studies and the medical costs she had to incur for her teeth. It is in no way apparent from the documents that the applicant spent her money in an irresponsible manner at the time. This is a special situation in which the applicant, despite the (financial) difficulties in which she found herself, nevertheless managed to complete her studies.

Furthermore, the Court in preliminary relief proceedings considered it important that the applicant herself understood that she would not manage financially on her own and that she sought help from the municipality. From the statement of her debt counsellor at the time, it appears that during the debt counselling process, the applicant always neatly complied with her agreements, she always delivered the requested documents on time and had a job with a stable income throughout the process. According to the debt counsellor, she did her utmost to be able to continue with a clean slate.

In the meantime, the applicant has had a stable income for many years and has not entered into any new debts. She has even been able to build up a (modest) savings balance. It is also important to note that the applicant chose to live with her boyfriend only after thorough preparation. After all, she first made sure that she had found a new job in the area where she wanted to live together.

In view of what was considered above and what was put forward during the hearing, the Court in preliminary relief proceedings was convinced that by granting a loan to the applicant, a lender does not run a greater financial risk than with any other person. The fact that the purchase price of the house exceeds the amount of the NHG is irrelevant in this respect. The Court in preliminary relief proceedings was therefore of the opinion that the importance of responsible lending would not be harmed if the BKR registration were to lapse now. The application for interim relief will therefore be granted.

8. Since the Court in preliminary relief proceedings granted the request, the Board must compensate the applicant for the court fee it paid. The Interim Injunction Judge orders the Board to pay the costs of the proceedings incurred by the applicant. Pursuant to the Decree on Administrative Procedure Costs (Besluit proceskosten bestuursrecht) the Court in preliminary relief proceedings sets these costs at € 1,050 (1 point for the submission of the application and 1 point for the appearance at the hearing, with a value per point of € 525, and weighting factor 1).
Decision

The preliminary relief judge:

    -

    grants the application for interim relief in the sense that the College must immediately remove or have removed the registration with the BKR under contract number 86144803.
    -

    orders the College to compensate the applicant for the court fee of €178;
    -

    orders the College to pay the applicant's legal costs to the amount of € 1,050.

This judgment was rendered by Mr. T. Peters, judge in preliminary relief proceedings, in the presence of

A.J.M. van Hees, Registrar on 14 July 2020 and made public by means of anonymous publication at www.rechtspraak.nl.