RvS - 201902699/1/A2

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RvS - 201902699/1/A2
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Court: RvS (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 79 GDPR
Article 82 GDPR
Decided: 1.4.2020
Published: 1.4.2020
Parties: Anonymous, Minister for Legal Protection
National Case Number/Name: 201902699/1/A2
European Case Law Identifier: ECLI:NL:RVS:2020:900
Appeal from:
Appeal to:
Original Language(s): Dutch
Original Source: de Rechtspraak (in Dutch)
Initial Contributor: n/a

The Council of State ruled that compensation claims for non-material damage under Article 82 GDPR require proper substantiation. To be compensated, claimant must be able to prove that the damage is real and certain.

English Summary[edit | edit source]

Facts[edit | edit source]

The Appellant filed several Freedom of Information Act requests with the municipality of Borsele; he also filed an access request under the previous data protection law. On 16 August 2016 the municipality responded that they processed the Appellant’s name and address for the purpose of registering his FOA requests and creating, registering and sending FOA-related letters. The municipality also shared his details on the closed forum of the Association of the Municipalities of the Netherlands, but the municipality of Borsele would not let him know the specifics.

The State Council heard this dispute on 5 March 2019. The municipality clarified that two messages relating to the Appellant’s request were posted on the forum: one contained the Appellant’s name; another one only mentioned the name of his legal consultancy firm.

Dispute[edit | edit source]

The Appellant claimed non-material damages resulting from loss of control over his personal data and delays in providing him with the information about the forum messages. The State Council had to assess this claim.

Holding[edit | edit source]

The State Council decided that breach of GDPR does not automatically imply an impairment of the integrity of a person which would lead to compensation of damages. The facts that an infringement of GDPR can result in non-material damage and that a data subject must receive full and effective compensation of the damages under GDPR, do not mean that violation of the law always results in damages. The damage caused must be real and certain. The State Council also pointed out that the Appellant has failed to demonstrate that the failure to provide complete information about his personal data processing in a timely manner had caused damages. The claim for compensation was rejected.

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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.

201902699/1/A2.

Date of judgment: 1 April 2020

SECTION

ADMINISTRATIVE LAW

Judgement in the dispute between:

[appellant], residing at [residence],

and

the College of Mayor and Aldermen of Borsele,

defendant.

Litigation

By decision of 16 August 2016, in response to [the Appellant's] request under the Dutch Personal Data Protection Act (Wbp), the Board announced that [the Appellant's] name and address had been included in the digital post registration system of the Municipality of Borsele in order to register his requests under the Government Information (Public Access) Act (Wob) and to be able to create, send and register letters. Furthermore, the [Appellant's] notice does not give rise to an overview of texts posted on the forum of the Association of Netherlands Municipalities (VNG), because the forum is a closed discussion platform for civil servants and does not involve the processing of personal data.

By decision of 5 March 2019, the Board again decided on the objection made by [the appellant] to the decision of 23 January 2019 ECLI:NL:RVS:2019:184 and declared it well-founded, following the Division's decision of 23 January 2019 ECLI:NL:RVS:2019:184.

The [appellant] appealed against this decision and applied for damages.

By decision of 3 April 2019, the Board amended the decision of 5 March 2019 by awarding [the appellant] a procedural indemnity of € 512.00 for submitting a notice of objection.

The Board submitted a statement of defence.

[Appellant] submitted further documents.

The Division heard the case on 15 January 2020, where [the appellant], represented by [the representative], and the Board, represented by R.M. Pieterse, appeared.

Considerations

1.    At the end of this judgment (under 53), the Division will indicate what this judgment means more generally and what will be decided in this case.

Applicable law

2.    On 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (the General Data Protection Regulation, hereinafter AVG) became applicable. The AVG will be directly applicable in each Member State as of 25 May 2018 (Article 99(3) of the AVG). The Wbp was repealed on 25 May 2018. The AVG has immediate effect. The transitional law contained in Section 48(10) of the AVG Implementation Act does not apply in this case.

3.    The AVG applies to the claim for damages. On 13 June 2019, i.e. after the AVG came into effect, [the appellant] requested the court to order the Municipal Executive to pay damages. For the assessment of the unlawfulness of the act, which in this case occurred in part before 25 May 2018, the old law, i.e. the Wbp, applies.

4.    The Division is of the opinion that in this transitional phase, during which a request for compensation was made after 25 May 2018 for damages in connection with acts that took place partly before that date and that were contrary to the Wbp and would now also be contrary to the AVG, and in which the substantive assessment framework was therefore already the same, the legal protection set out under 27 must also be offered.

Judgment of the Division of 23 January 2019

5.    In its ruling of 23 January 2019, ECLI:NL:RVS:2019:184, the Division annulled the decision of 26 January 2017. In its decision of 5 March 2019, the Board declared the objection lodged by [the appellant] against the decision of 16 August 2016 inadmissible on the grounds that it was an abuse of rights.

6.    The Division has determined that an appeal may only be lodged with the Division against the new decision on the objection to be taken by the Board.

7.    In its decision, the Division considered, with respect to the application for compensation, that the Board had not disclosed whether and which personal data of [the appellant] had been processed on the VNG Forum. In so far as such data have been processed, the Board has not provided an overview of the data, nor a description of the purpose or purposes of the processing, the categories of data to which the processing relates and the recipients or categories of recipients, as well as the available information about the origin of the data. As a result, it was not possible to determine whether the Board on the VNG Forum has processed personal data in violation of the Wbp. The Division considered that the Municipal Executive should include this in the new decision on objection. In view of this, the Division rejected the application for compensation in its decision of 23 January 2019.

The decision of 5 March 2019

8.    In the decision of 5 March 2019, the Board provided [Appellant] with an overview of the processing of personal data on behalf of the Board at the VNG Forum. The Board explained that an employee of the Municipality had posted two messages on the VNG Forum concerning a request made by [the appellant] under the Wob. The first message contained the name of [the appellant], while the second contained only the name of the legal advice agency 'Juridisch Advies Voorbach/Voorbach & Van Dongen' (Legal Advice for Voorbach/Voorbach & Van Dongen), which he had engaged.

9.    In its decision of 5 March 2019, the Board explained that the processing of personal data is imputable to the Board as a controller within the meaning of Section 1(d) of the Wbp. The Decree of 16 August 2016 is amended to the extent that an additional overview is provided of the processing of personal data on the VNG Forum. The Board states that the purpose of the processing is laid down in Section 8(e) of the Wbp. The category of recipients is the participants in the VNG Forum (part of the Wob). The origin of the data is respectively a Wob request by [the appellant] and a notice of objection submitted by him.

10.    By decision of 3 April 2019, the Board amended the decision of 5 March 2019 by granting a fee of € 512.00 for the submission of a notice of objection. In doing so, the Board has satisfied the grounds of appeal of [the appellant].

Interim conclusion

11.    The appeal by [the appellant] against the decision of 5 March 2019 is inadmissible, since he no longer has any interest in bringing proceedings in the assessment of this decision. The Division does, however, see reason to order the Board to pay the costs of the proceedings in respect of the lodging of an appeal, because it was correctly lodged.

12.    Since the decision of 3 April 2019 fully satisfied [the appellant], no appeal against this decision arose by operation of law.

13.    All that remains in these proceedings is the request for compensation made by [the appellant].

Claim for compensation

14.    [Appellant] applied for damages under Article 82 of the AVG. He claims to have suffered non-material damage because he lost control of his personal data and it was not until the decision of 5 March 2019 that he provided the College with an overview of the personal data that he considered had been wrongly processed. According to him, the concept of damage should be interpreted broadly in accordance with the objective of the AVG. [Appellant] claimed that he was entitled to €7,500 in damages and referred, among other things, to the punitive nature, in his view, of the compensation under the AVG.

Position of the Board

15.    The Municipal Executive states that Article 82 of the AVG does not provide an independent basis for compensation for damage. The College further argues that there is no basis for compensation in tort, if only because the decision of 5 March 2019 must be held to be lawful. To this end, the Board argues that this decision justifies the processing of personal data and that [the appellant] has only put forward grounds against it that relate to legal costs. In addition, the Board contested the causal relationship between the incomplete provision of information about the processing of personal data and the alleged loss. Finally, the Board states that [the Appellant] has not made it plausible that he has suffered such mental injury as a result of the publication of the personal data on the VNG Forum that it may be regarded as affecting his person to such an extent that it would be appropriate to award compensation for immaterial damages.

Article 82 of the AVG

16.    Article 82 of the AVG reads as follows:

1.    Any person who has suffered material or non-material damage as a result of a breach of this Regulation shall be entitled to receive compensation for the damage suffered from the controller or processor.

2.    Any controller involved in processing shall be liable for any damage caused by processing operations in breach of this Regulation. A processor shall be liable for damage caused by processing only where the processing does not comply with the obligations laid down in this Regulation specifically addressed to processors or was carried out outside or in breach of the lawful instructions of the controller.

Jurisdiction of administrative courts

17.    As the Division has also considered in today's judgments with numbers ECLI:NL:RVS:2020:898, ECLI:NL:RVS:2020:899 and ECLI:NL:RVS:2020:901, in its opinion the administrative court is competent to assess an application for compensation for material or immaterial damage resulting from an act in violation of the General Administrative Law Act by an administrative body on the basis of Article 8:88 of the General Administrative Law Act. The Division derives arguments for this from the AVG and the AVG Implementation Act.

18.    The AVG is directly applicable in each Member State (Article 99(3) of the AVG). Claims for compensation in the event of acts contrary to the AVG arise directly from the AVG. Article 82(6) of the AVG provides that legal proceedings for the exercise of the right to compensation shall be conducted before the courts of the Member State referred to in Article 79(2). More generally, Article 79(1) lays down the right to an effective remedy.

19. The AVG does not determine which courts within a Member State have jurisdiction to rule on the right to compensation. In the absence of procedural rules of Union law, it is settled case-law of the Court of Justice of the European Union (hereinafter 'the Court of Justice') that it is for the Member States to designate the competent courts and to apply their national procedural law in cases where Union law is enforced. However, such national rules must satisfy the conditions of equivalence and effectiveness (compare the judgment of 16 December 1976, C-33/76, Rewe, ECLI:EU:C:1976:188, and the judgment of 13 July 2006, C-295/04 - 298/04, Manfredi, ECLI:EU:C:2006:461, paragraph 62). These conditions require that a national procedural rule protecting the rights which individuals derive from Union law must not be less favourable than that governing similar domestic actions (principle of equivalence) and that a procedural rule must not render the exercise of rights conferred by the Union impossible or excessively difficult in practice (principle of effectiveness). A procedural rule must also comply with the principle of effective judicial protection, as currently enshrined in Article 47 of the Charter (judgments of the Court of Justice of 18 March 2010, C-317/08, C-318/08, C-319/08 and C-320/08, Alassini and others, ECLI:EU:C:2010:146).

20.    This means that, under these conditions, national law must determine which court has jurisdiction to rule on applications for damages.

21.    Pursuant to Section 8:88(1)(a) of the General Administrative Law Act in conjunction with Section 34 of the Implementing Act, the administrative court has the power to order an administrative body, at the request of an interested party, to pay compensation for damage that an interested party has suffered or will suffer in connection with a written decision as referred to in Section 34 of the Implementing Act. To this end, it is envisaged as follows.

22.    In paragraph 3.3. Legal Protection' of the AVG Implementation Act, Article 34 reads as follows:

Article 34. Applicability of the General Administrative Law Act by decision of administrative bodies

A written decision on a request as referred to in Articles 15 to 22 of the Regulation shall be taken within the time limits referred to in Article 12(3) of the Regulation and, insofar as it has been taken by an administrative body, shall be deemed to be a decision within the meaning of the General Administrative Law Act.

23.    Articles 15 to 22 of the AVG offer interested parties, among other things, the right of access to personal data, the right to rectification or erasure of personal data, the right to limit the processing of personal data concerning them, as well as the right to object to the processing of personal data, the right to data portability and the right not to be subjected exclusively to automated data processing.

24.    These rights are inextricably linked to the control of the processing of personal data and enable interested parties to ascertain whether personal data have been processed lawfully and, inter alia, to claim compensation for unlawful processing.

25.    For the ways in which the right to compensation can be realised, the Explanatory Memorandum (Parliamentary Papers II 2017-2018, 34851 no. 3) to the AVG Implementation Act is included in the implementation table under Section 82, "Current Title 8.4 of the General Administrative Law Act or Civil Court". The Division deduces from this that it must be possible to bring a claim for compensation for damage resulting from an infringement of the AVG by an administrative body before both the administrative courts and the civil courts.

26.    The Division therefore concludes from Article 8:88 of the General Administrative Law Act in conjunction with Article 34 of the AVG Implementation Act that it is in line with the intention of the national legislator that the same court that adjudicates on, inter alia, decisions of administrative bodies at a request as referred to in Articles 15 to 22 of the AVG may also be requested to pay compensation for related damage. The Division considers this to be in the interests of the concentration of legal protection and thus also in the interests of effective and efficient legal protection (principle of effectiveness and Article 47 of the Charter of Fundamental Rights of the European Union). By way of comparison with the judgment of the Court of Justice of 15 April 2008, C-268/06, EU:C:2008:223, paragraph 51 (Impact), the Section points out that a concentration of legal protection is in line with the principle of effectiveness. In the view of the Division, the principle of equivalence is also fulfilled because opening up the administrative route is not a procedural rule that treats claims under Union law less favourably than comparable claims under national law.

27.    This means that a person who, on the basis of Article 82 of the AVG, claims compensation for damage resulting from the unlawful processing of personal data by an administrative body, has the freedom of choice, in accordance with Article 8:88 of the Awb, to submit his request to the administrative court in connection with a decision as referred to in Article 34 of the AVG Implementation Act, or to realise his claim for compensation through the civil law channels. Article 8:88 of the General Administrative Law Act is interpreted as meaning that the power of the administrative court is less strictly limited to the requirement of an unlawful decision, because although there must be a connection with a decision as referred to in Article 34 of the AVG Implementation Act, this decision, for example on a request for inspection, does not have to be unlawful as such. In such a case, therefore, the administrative court may, in the application procedure pursuant to Section 8:88 of the General Administrative Law Act, give an opinion on the unlawfulness of the processing of the data to which the decision on the request for information relates. The latter decision does not have to be unlawful for this purpose, nor does it have to contain an opinion on the lawfulness of the processing of the data. The Division notes that if the request exceeds € 25,000.00, the application of Section 8:88 of the General Administrative Law Act entails that the civil court has exclusive jurisdiction to hear such a request.

Assessment of the request for compensation

28.    [Appellant] claims that it is entitled to compensation because the Board wrongly posted his personal data on the VNG Forum and because the Board informed him too late about the data processing.

(Un)lawful processing of personal data

29.    The Division is of the opinion that the Board is right to take the position that in this case the processing of personal data is not unlawful and therefore there is no claim for compensation. To this end, it is considered as follows.

30.    Pursuant to the Wob, the Municipal Executive may be requested to disclose and provide information on an administrative matter. The implementation of the Wob is a public law task of the Municipal Executive. It is important for the proper functioning of the Wob that investigations are conducted into abuse of the Wob and that any abuse is established. By means of the VNG Forum, the VNG has set up a digital platform to enable municipalities to consult with each other on how to approach and deal with the many Wob requests that have been submitted, often only for the collection of periodic penalty payments. On 1 October 2016, the legislator abolished the periodic penalty payments for Wob requests. In 2017, VNG cleaned up the Wob/Municipalities section of the VNG Forum by taking all discussions offline. Personal data posted before 1 April 2017 can no longer be retrieved (see, among other things, the judgment of the District Court of The Hague of 18 May 2017, ECLI:NL:RBDHA:2017:5404).

31.    Mentioning the name of [the appellant] on the VNG Forum at the request of another municipality was intended to ensure the proper implementation of the Wob and to prevent the Wob from being misused for the purpose of collecting penalty payments in the event that a decision on a request was not made in good time. This aim is in accordance with Section 8(e) of the Wbp (and Section 6(1) and (e) of the GC). Contrary to the arguments put forward by [the appellant], there are no grounds for considering that the data processing is not in accordance with the requirements of proportionality and subsidiarity. The purpose of the processing is proportionate to the invasion of [the appellant's] privacy and could not be achieved by less intrusive means. It was necessary to state the name of [the appellant], because only in this way could it be ascertained whether he had submitted Wob requests to several municipal councils that might have been aimed at collecting a penalty payment. Nor was it excessive to share this information on the VNG Forum. As the Municipal Executive explained at the hearing, only those with a specific function related to the processing of Wob requests had access to the Wob/Municipalities section of the VNG Forum. There were no grounds for [the appellant's] assertion that the entire governing body of the Netherlands had been able to take note of his name. Nor did [the appellant], if asked, provide any insight into the concrete adverse consequences of mentioning his name on the VNG Forum.

32.    Because the Board did not act unlawfully in mentioning [the appellant's] name on the VNG Forum, the request for compensation will therefore already be rejected.

Failure to inform in good time

33.    In view of the Section's decision of 23 January 2019 and the decision of 5 March 2019, it is established that the Board did not provide a timely overview of the information posted on the VNG Forum.

34.    Although Article 82(1) of the AVG states that full compensation must be paid for actual non-material damage resulting from infringements of the AVG in a manner that does justice to the objectives of the Regulation, the AVG does not specify how the non-material damage is to be determined and calculated. The Court of Justice has consistently held that, in the absence of Community rules, it is for the domestic legal order of each Member State to determine the rules governing the exercise of the right to compensation, subject to compliance with the principles of equivalence and effectiveness (see Manfredi judgment, paragraph 64).

However, recital 146 in the preamble to the AVG must be taken into account when exercising the right to compensation laid down in Article 82 of the AVG. This states, inter alia, that the controller or processor must compensate any damage which a person may suffer as a result of a processing operation infringing this Regulation. The concept of damage should be interpreted broadly in the light of the case law of the Court of Justice of the European Union, in a way that fully meets the objectives of this Regulation. It is also stated that data subjects should receive full and effective compensation for any damage suffered by them.

35.    The Court of Justice has not yet provided any explanation specifically on the concept of damages or on the compensable immaterial damages in case of unlawful processing of personal data, including under the (repealed) Privacy Directive (Directive 95/46/EC). However, the Court of Justice has consistently held that the damage to be compensated must be real and certain (see judgment of the Court of Justice of 4 April 2017, ECLI:EU:C:2017:256, paragraph 91, C- 337/15 P, European Ombudsman v. Staelen, ECLI:EU:C:2017:256, paragraph 91).

36.    Taking into account the above mentioned case law of the Court of Justice and Article 146 in the preamble, national law is therefore relevant when answering the question whether the alleged damage is eligible for compensation.

37.    For the assessment of an application for compensation for non-material damage, in accordance with the settled case law of the Division (see, for example, ECLI:NL:RVS:2010:BN4952 of 25 August 2010), connection is sought with civil compensation law.

38.    Article 6:106 of the Dutch Civil Code reads:

For loss that does not consist of pecuniary loss, the injured party is entitled to compensation to be determined in accordance with equity:

[…]

b. if the injured party has suffered bodily injury, damage to his honour or good name or any other harm to his person;

[…]"

39.    The impairment referred to in Section 6:106(1)(b) of the Civil Code in person 'otherwise' shall in any case be deemed to have occurred if the injured party has suffered mental injury. The party who invokes this will have to provide sufficient concrete data from which it can be deduced that psychological damage has occurred in connection with the circumstances of the case. This requires that the existence of mental injury can be established according to objective standards. Even if the existence of mental injury in the aforementioned sense cannot be assumed, it cannot be excluded that the nature and seriousness of the breach of the standards and of the consequences thereof for the injured party will mean that the impairment referred to in Section 6:106, opening words and under b, of the Civil Code is present in his person 'in a different way'. In such a case, the party invoking this will have to substantiate the impairment in his person with concrete data. This will only be different if the nature and seriousness of the breach of the standards mean that the relevant adverse consequences for the injured party are so obvious that an impairment in the person can be assumed. An impairment in the person 'in any other way' as referred to in Section 6:106(b) of Book 6 of the Dutch Civil Code does not already exist in the case of the mere violation of a fundamental right. (See the judgments of the Supreme Court of 15 March 2019, ECLI:NL:HR:2019:376, paragraph 4.2.2, of 28 May 2019, ECLI:NL:HR:2019:793, paragraph 2.4.5, and of 19 July 2019, ECLI:NL:HR:2019:1278, paragraph 2.13.2).

40.    The Section is of the opinion that the framework outlined in section 39 can meet the requirements of the AVG and the case law of the Court of Justice as set out in section 34.

41.    [appellant] has not stated that he has suffered mental injury as a result of the unlawful conduct of the Municipal Executive, which can be established on objective grounds.

42.    According to [appellant], the immaterial damage consists of a legal infringement of the AVG (failure to provide timely and complete information), which according to [appellant] must be regarded as an impairment in the person within the meaning of Section 6:106(1)(b) of the Civil Code. He claims that he is therefore entitled to compensation to be determined in accordance with fairness.

43.    The Municipal Executive disputes that the nature and seriousness of the breach of the standards are such that immaterial damage has arisen as a result. According to the Board, the [appellant] also failed to substantiate this with concrete data.

44.    [Appellant] cannot be followed in its argument that the judgment of the Supreme Court of 15 March 2019 has no significance for the assessment of an application for compensation for immaterial damage because that judgment does not address the question of whether immaterial damage qualifies for compensation under the AVG. The general principle that the alleged damage must be substantiated also applies here. There is no ground for the opinion that an infringement of the AVG simply implies an attack on the integrity of a person and therefore leads to compensable damage. Contrary to what [the appellant] argues, this cannot be deduced from recitals 85 and 146 in the preamble to the AVG. The fact that a breach of personal data can result in (im)material damage and that a data subject must receive full and actual compensation for the damage he has suffered does not mean that a breach of the standards by definition results in damage and that damage must not have been suffered in a real and certain manner. Compare ECJ EU 6 November 2012, C-199/11, ECLI:EU:C:2012:684, (Otis) and ECJ EU 4 April 2017, C-337/15, ECLI:EU:C:2017:256 (European Ombudsman).

45.    In this case, the adverse consequences of the breach of the standards are not obvious. The initially incomplete provision of the requested information is incomparable with the circumstances leading to the judgments of the Supreme Court of 18 March 2005, ECLI:NL:HR:2005:AR5213 (Baby Kelly) and of 9 July 2004, ECLI:NL:HR:2004:AO7721 (Groninger Oudejaarsrellen). This is not serious culpable behaviour with consequences so serious as to constitute an infringement of a fundamental right.

46.    In so far as [the appellant] argues in support of his argument that compensation under the AVG is punitive in nature, it is important that this case concerns the possibility of obtaining compensation for (im)material damage as a result of incorrect culpable conduct. The purpose of compensation is to repair or offer compensation for an unlawful invasion of privacy. The imposition of a punitive sanction as a fine that must be distinguished from it is not at issue here and is intended to add suffering to the violator of the violated standard. Contrary to what [the appellant] argues, recital 146 of the AVG does not state that compensation must be effective and 'sufficiently deterrent'. Recital 146 states that damages resulting from unlawful processing of personal data must be actually and fully compensated. It cannot be inferred from this that, in the event of an infringement of the AVG, there is an obligation to award damages that go beyond full compensation for the actual damage suffered (compare the judgment of the Court of Justice of 17 December 2015, ECLI:EU:C:2015:831).

47.    The starting point is therefore that [the appellant] must prove the impairment in person and substantiate the damage suffered by him with concrete evidence. Prior to the hearing on appeal, the [appellant] was asked to specify and substantiate the damage alleged by him.

48.    48. The [appellant] did not substantiate that failure to provide full and timely information about the processing of personal data led to the person's being harmed and that the consequences of the harm directly affected him. He did not submit any concrete data to substantiate the harm he claimed.

49.    The Division also rejects the claim for damages to that extent.

Conclusion

50.    The appeal by [the appellant] against the decision of 5 March 2019 is inadmissible.

51.    The application for damages is dismissed.

52.    The Board should be ordered to pay the costs of the proceedings in a manner to be indicated. A weighting of 0.5 is applied, because the appeal against the decision of 5 March 2019 relates solely to the reimbursement of legal costs.

Summary

53.    In this judgment and in three other judgments delivered today, the Division discusses the possibilities of claiming compensation for damages before the administrative courts if someone claims that an administrative body has processed personal data in violation of the applicable privacy legislation (since 25 May 2018 the General Data Protection Regulation (AVG) and the AVG Implementation Act). Before the AVG and the AVG Implementation Act entered into force, the case law of the Division offered fewer possibilities, which meant that the citizen was then directed to the civil courts. This route remains open, but in a larger number of cases it is now also possible to approach the administrative courts for requests for compensation up to € 25,000. For the answer to the question when this can be done, see above under 27. In other words, it concerns a procedural question of legal protection, namely when, in the event of unlawful processing of personal data, the administrative courts can be approached.

In terms of content, the Division then decides that in order to be eligible for compensation, the requirements of Section 6:106 of the Dutch Civil Code must be met. For these cases, this means that the honour or good name of the person concerned must be affected, or that the person must be affected in some other way. In this respect, the Division is in line with the case law of the Supreme Court. In this case the Division decides that [the appellant] cannot claim compensation. The Board did not act unlawfully in stating [appellant's] name on the VNG Forum. The alleged loss resulting from the failure to provide full and timely information about the processing of personal data was not substantiated by [the appellant].

Decision

The Administrative Jurisdiction Division of the Council of State:

I. declares the appeal against the decision of 5 March 2019 inadmissible;

II. dismisses the application for damages;

III. orders the Municipal Executive of Borsele to pay the costs of the proceedings incurred by [the appellant] in connection with the hearing of the appeal up to an amount of € 262.50 (in words, two hundred and sixty-two euros and fifty cents), to be allocated in full to legal aid granted by a third party on a professional basis;

IV. orders the Municipal Executive of Borsele to reimburse to [the appellant] the court fee paid by him for the handling of the appeal in the amount of € 174.00 (in words: one hundred and seventy-four euros).

Thus determined by J.E.M. Polak, chairman, and E.A. Minderhoud and E.J. Daalder, members, in the presence of M.A.E. Planken, registrar.

The chairman is prevented from signing the decision.

The Registrar is prevented from signing the decision.

Pronounced in public on 1 April 2020

299.

Annex