RvS - 201905347/1/A3

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RvS - 201905347/1/A3
CourtsNL.png
Court: RvS (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 5 GDPR
Article 6 GDPR
Article 17(3) GDPR
Article 17(3)(e) GDPR
Article 6(4) GDPR
Decided: 30.09.2020
Published: 30.09.2020
Parties: Minister for Agriculture, Nature and Food Quality
National Case Number/Name: 201905347/1/A3
European Case Law Identifier: ECLI:NL:RVS:2020:2315
Appeal from: Rb. Oost-Brabant (Netherlands)
18/2775
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Uitspraaken rechtspraak (in Dutch)
Initial Contributor: n/a

The court held that a decision not to delete the personal data of the claimants which is in a documents that contains data from dog handlers and shared with different institutions is annulled. The Ministry for Agriculture, Nature and Food Quality has to create a new decision. If the claimant wants to appeal that new decision, it may directly appeal to the Council of State, skipping the lower court.

English Summary[edit | edit source]

Facts[edit | edit source]

In 2013, as part of the integrated approach to rogue dog trafficking by the Police National Unit Animal Welfare Expertise Centre, a so-called pre-weighing document has been drawn up. This document contains data from dog handlers with sufficient indicators to justify further investigation. The dog handlers listed in the pre-road document are included in the general roadmap 'Canitas project' (hereafter: the roadmap) that has been drawn up for a national enforcement action day, and which in section 1.4 contains a diagram with data from dog handlers. The data of applicant and appellant are included in this diagram. The project involved cooperation with, among others, the National Animal Protection Inspectorate and the Dutch Food and Consumer Product Safety Authority. Within the framework of integral enforcement, the roadmap was shared with the administrative bodies affiliated to the Regional Information and Expertise Centre East Brabant.

The applicant and the appellant have requested the deletion of their data from the pre-weighing document and the schedule according to the GDPR. The Minister takes the view that data in the roadmap will not be processed unlawfully. In addition, the right to be forgotten of Article 17 GDPR is not intended to correct or delete opinions with which the applicants disagree. Moreover, in connection with the processing of their data, the applicant and the appellant also brought civil proceedings for damages against the Minister. In that context, the data are necessary for the substantiation of a legal action, so that the exception in Article 17(3) GDPR applies, according to the Minister.

Dispute[edit | edit source]

The central question in the civil proceedings is whether the decision of the Minister not to delete the personal is well founded.

Holding[edit | edit source]

The court noted that the last decision of the Minister is no longer based on Article 17(3) GDPR. Instead the decision is based on Article 6(4) GDPR. However the Minister did not explain well enough why the defence of legal claims is a purpose which is compatible with the purpose for which the personal data were initially collected. Therefore the decision is annulled.

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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.

 ECLI:NL:RVS:2020:2315

Authority
    Council of State
Date of pronouncement
    30-09-2020
Date of publication
    30-09-2020 
Case number
    201905347/1/A3
Jurisdictions
    Administrative law
Special features
    Appeals
Content indication

    By decision of 7 May 2018, the Minister for Agriculture, Nature and Food Quality rejected the requests of [the applicant] and [the appellant] for the removal of their personal data. In 2013, as part of the integrated approach to rogue dog trafficking by the Police National Unit Animal Welfare Expertise Centre, a so-called pre-war document has been drawn up. This document contains data from dog handlers with sufficient indicators to justify further investigation. The dog handlers listed in the pre-road document are included in the general roadmap 'Canitas project' (hereafter: the roadmap) that has been drawn up for a national enforcement action day, and which in section 1.4 contains a diagram with data from dog handlers. The data of [applicant] and [appellant] are included in this diagram.
Sites
    Rechtspraak.nl
    Enriched pronunciation 

Ruling

201905347/1/A3.

Date of judgment: 30 September 2020

SECTION

ADMINISTRATIVE LAW

Judgment on the appeal of:

[appellant], residing at [residence],

against the judgment of the District Court of Oost-Brabant of 5 July 2019 in Case No 18/2775 in the case between:

[applicant] and [appellant]

and

the Minister for Agriculture, Nature and Food Quality.

Process sequence

By decision of 7 May 2018, the Minister rejected [the applicant's] and [the appellant's] request for the deletion ('erasure') of their personal data.

By decision of 8 November 2018, the Minister dismissed [the applicant's] and [the appellant's] objections to that decision as unfounded.

By decision of 14 May 2019, the Minister amended in part the decision of 8 November 2018 and upheld [the applicant's] objection. In so doing, the Minister revoked the decision of 7 May 2018 in so far as it concerned the data of [the applicant] and removed the data of [the applicant] from the documents referred to in the application.

By judgment of 5 July 2019, the Court dismissed as inadmissible the action brought by [the applicant] and [the appellant] against that decision in so far as it was brought by [the applicant] and as unfounded in so far as it was brought by [the appellant]. That judgment is annexed.

The appellant has appealed against that judgment.

The Minister made a written submission.

The appellant has submitted further documents.

The Division heard the case at the hearing on 23 September 2019, at which [the appellant], represented by [the appellant], and the Minister, represented by T. Gilhaus and M.M.C. van Graafeiland, lawyers in The Hague, appeared.

After the conclusion of the investigation at the hearing, the Division reopened the investigation. [appellant] and the Minister submitted further documents on request.

The Minister and [the appellant] submitted further documents.

None of the parties stated within the set period that they wished to exercise their right to be heard again at the hearing, after which the Division closed the investigation pursuant to Section 8:57(3), read in conjunction with Section 8:108(1) of the General Administrative Law Act (Awb).

Considerations

In advance

1.    In view of the exceptional situation created in the Netherlands by the outbreak of the coronavirus and the related measures taken by the Dutch Government to prevent the spread of this virus, the planned second session on 14 April 2020 could not take place. The department informed the parties that, after a thorough examination of the file in order to decide on the contentious issues, it does not consider it necessary to hold a second meeting. The parties were given the opportunity to indicate that they would nevertheless like to make use of the right to be heard at a hearing. None of the parties has done so. The Division has therefore decided to settle the case without further hearing.

Introduction

2.    In 2013, as part of the integrated approach to rogue dog trafficking by the Police National Unit Animal Welfare Expertise Centre, a so-called pre-weighing document has been drawn up. This document contains data from dog handlers with sufficient indicators to justify further investigation. The dog handlers listed in the pre-road document are included in the general roadmap 'Canitas project' (hereafter: the roadmap) that has been drawn up for a national enforcement action day, and which in section 1.4 contains a diagram with data from dog handlers. The data of [applicant] and [appellant] are included in this diagram. The project involved cooperation with, among others, the National Animal Protection Inspectorate and the Dutch Food and Consumer Product Safety Authority (hereafter: NVWA). Within the framework of integral enforcement, the roadmap was shared with the administrative bodies affiliated to the Regional Information and Expertise Centre East Brabant.

3.    Pursuant to the Personal Data Protection Act (Wbp), [the applicant] and [the appellant] have requested the deletion of their data from the pre-weighing document and the schedule in paragraph 1.4 of the plan. The Minister takes the view that [appellant's] data in the roadmap will not be processed unlawfully. In addition, the right to forgetting Article 17 of the General Data Protection Regulation (hereinafter: APR) is not intended to correct or delete opinions with which the applicants disagree. Moreover, in connection with the processing of their data, [the applicant] and [the appellant] also brought civil proceedings for damages against the Minister. In that context, the data are necessary for the substantiation of a legal action, so that the exception in Article 17(3) of the AVG applies, according to the Minister.

The court's ruling

4.    The Court considered that the Minister had, by the decision of 14 May 2019, granted the application in so far as it relates to the data of [the applicant]. The action, in so far as it relates to [the applicant's] data, was therefore dismissed as inadmissible on the ground that there was no interest in the proceedings. Furthermore, in the opinion of the District Court, the Minister took the view on good grounds that Article 17(3) of the AVG is applicable. This means that [the appellant] is not entitled to have its data erased from the documents because of the ongoing civil proceedings. It is irrelevant here whether the processing of the personal data in the documents can be regarded as unlawful. Nor is it relevant that a judgment was rendered by the court in the civil proceedings on 15 May 2019, because an appeal has been lodged against that judgment, according to the court.

What is the scope of the appeal?

5.    Although the notice of appeal was signed by [the applicant] and [the appellant], it became clear at the hearing that [the applicant] is acting as agent of [the appellant]. Grounds of appeal were put forward against the dismissal of the appeal only to the extent that it was submitted by [the appellant]. The Division will therefore assume in the following that the appeal was lodged only by [the appellant].

Assessment framework

6.    On 25 May 2018 the AVG became applicable and the Wbp was repealed. The AVG applies to these proceedings because the decision on objections dates from after 25 May 2018.

7.    The relevant legislation and regulations are listed in the appendix. This appendix is attached to the decision and forms part of it.

The appeal of [appellant]

8.    [appellant] argues that the schedule in the roadmap is a black list, the data of which must be regularly checked and updated. In this context, it draws attention to the requirements arising from the judgment of the Section of 4 July 2007, ECLI:NL:RVS:2007:BA8742. On the basis of these requirements, the lawfulness of the processing must be assessed before the exception provided for in Article 17(3) of the AVG can be invoked. These requirements are not met in this case, because the scheme was drawn up in a careless manner and a careful weighing of interests was not carried out before the data were processed. According to [Appellant], the processing of its data is therefore not in accordance with Article 5(1)(a), (c) and (d) of the AVG.

The further position of the Minister

9.    The Minister states that the data of [appellant] included in the script were processed on the basis of Article 6, first paragraph, opening words and under e, of the AVG. Because the Dutch Food and Consumer Product Safety Authority (hereinafter: NVWA) was to participate in an action day in the field of animal health and animal welfare, the processing was necessary for the fulfilment of the NVWA's public task. Since the NVWA did not compile the documents itself, the NVWA could not decide to erase data from those documents either. At the time of the decisions on objections, [appellant's] data were processed only in connection with the pending civil proceedings. In the context of those proceedings it is important that the original documents are available to the Minister. This further processing as referred to in Article 6(4) of the AVG is compatible with the original purpose of processing. Therefore, no separate legal basis is required. In addition, there has never been any question of maintaining an active blacklist. The data of [appellant] only appear in the schedule included in the script compiled at the time. The personal data are and have been processed in a lawful, proper and transparent manner that complies with Article 5, first paragraph, opening words and under a, and Article 6, first paragraph, opening words and under e, of the AVG. There is also no question of factually incorrect data, but [the appellant] contests the conclusion of the police that her personal data had to be included in the scheme. The right of correction is not intended for that purpose, according to the Minister.

Can Article 17(3) of the AVG be applied?

10.    Article 17 of the AVG reads:

"1. The data subject has the right to obtain from the controller the erasure of personal data relating to him without unreasonable delay and the controller is obliged to erase personal data without unreasonable delay where one of the following applies:

a. to c. [...];

d. the personal data have been processed unlawfully;

e. and f. [...].

2. […]

3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

a. to d. [...];

e. for the institution, exercise or substantiation of legal claims.

10.1.    The [Appellant's] argument concerning the order of assessment is unsuccessful. In view of the system and the text of Article 17 of the AVG, the court was entitled to assess whether the exception of Article 17(3)(e) of the AVG arose and was not obliged to first assess the lawfulness of the processing. However, pending appeal - after reopening the investigation - the Minister based the decision on objection on a different basis. The Division deduced from this that Article 17(3) of the AVG had been abandoned as a basis. In the further document of 24 December 2019 the Minister stated that the basis of the processing is further processing that is compatible with the original purpose of processing, as referred to in Article 6, paragraph 4, of the AVG. For this reason, the rejection of [the appellant's] request must be upheld according to the Minister.

The appeal by [appellant] is well-founded for this reason and the judgment under appeal will be set aside. In doing what the court should do, the Division will annul the decision on appeal of 8 November 2018 insofar as it declares [appellant's] appeal unfounded. In the following it will be examined whether the legal consequences of the decision can be upheld to the extent that they can be maintained on the basis of lawful further processing as referred to in article 6, fourth paragraph, of the AVG.

Is the further processing of [appellant's] personal data compatible with the original purpose?

11.    In answering the question whether the purpose of the further processing is compatible with the original purpose, account must be taken, inter alia, of the factors mentioned in Article 6(4)(a) to (e) of the AVG. These factors concern the relationship between the purposes for which the personal data were originally collected and the purposes of the intended further processing, the framework in which the personal data were collected, the nature of the personal data, the possible consequences of the intended further processing for the data subjects and the existence of appropriate safeguards. Article 6(4) of the AVG thus formulates an exception to the so-called purpose limitation principle and must therefore be interpreted strictly.

11.1.    Although, on appeal, the Minister takes the view that there is further processing for the purposes of a civil action for damages and the present administrative procedure and that the criteria of Article 6(4) of the AVG have therefore been met, he does not explain this viewpoint, or at least insufficiently, on the basis of these criteria. According to the Minister, the data of [the appellant] were initially processed for the purpose of informing the NVWA of the national action day. In connection with the data processing for that action day by the NVWA, [the applicant] and [the appellant] commenced civil proceedings for damages against, inter alia, the Minister. As explained by both parties at the hearing, the central question in the civil proceedings is whether the initial processing of the personal data was lawful. Only in connection with the civil proceedings and the present proceedings are the personal data still being processed by the NVWA. The Minister's further document states that the further processing is compatible with the original purpose of the processing. According to the Minister, there is a link between the two purposes, since in both cases the lawfulness of the processing is called into question. This brings us to the subject matter of these proceedings and the civil proceedings. However, this does not provide sufficient insight into the link between the purpose for which the data were initially processed and the purpose of further processing. Indeed, the mere fact that [the applicant] and [the appellant] brought civil proceedings for damages as a result of the initial processing of data against, inter alia, the Minister does not mean that the purpose of the further processing of those data for the purposes of those proceedings for damages is therefore already compatible with the purpose for which the personal data were initially collected (informing the NVWA). The same applies to the further processing of those data for the purposes of these proceedings. Furthermore, according to the Minister, the frameworks in which the personal data have been collected are the same and the consequences are limited, since the data are only processed for the purpose of proceedings initiated by [the applicant] and [the appellant]. Even with these unsubstantiated assertions, the Minister has not made it sufficiently clear that, taking into account the criteria referred to above, it must be concluded that the purpose of further processing is compatible with the purpose of the initial processing.

11.2.    The conclusion is that the Minister has insufficiently substantiated that further processing has a sound basis. In view of this, there is no reason to maintain the legal consequences of the decision on objection.

Final considerations

12.    The appellant's appeal is well founded. The Court's decision, in so far as attacked, should be set aside. In doing what the Court should do, the Division will set aside the decision of 8 November 2018 to the extent that it dismissed [the appellant's] objection as unfounded.

13.    With a view to an efficient settlement of the dispute the Division sees reason to stipulate, pursuant to Section 8:113(2) of the General Administrative Law Act (Awb), that the new decision to be taken by the Minister on [the appellant's] objection may only be appealed against by the Division.

14.    There was no evidence of legal costs eligible for reimbursement.

Decision

The Administrative Jurisdiction Division of the Council of State:

I. declares the appeal well-founded;

II. sets aside the judgment of the District Court of Oost-Brabant of 5 July 2019 in case no. 18/2775 in so far as it dismissed [the appellant's] appeal as unfounded;

III. declares [the appellant's] appeal lodged with the District Court well-founded;

IV. annuls the decision of the Minister of Agriculture, Nature and Food Quality of 8 November 2018, ref. 494-24678, in so far as it dismisses [the appellant's] objection as unfounded;

V. provides that the new decision to be taken by the Minister of Agriculture, Nature and Food Quality on [the Appellant's] objection can only be appealed to the Division;

VI. orders the Minister for Agriculture, Nature and Food Quality to pay [the appellant] the court fee of € 259.00 (in words: two hundred and fifty-nine euros) for the handling of the appeal.

Thus determined by C.H.M. van Altena, Chairman, and C.M. Wissels and C.C.W. Lange, Members, in the presence of M.H. Kuggeleijn-Jansen, Registrar.

The chairman was prevented from signing the ruling.

The Registrar was prevented from signing the ruling.

Pronounced in public on 30 September 2020

545.

 

ANNEX

 

AVG

Article 5

1. Personal data must be

a) be processed in a manner which is lawful, adequate and transparent as regards the data subject ("lawfulness, adequacy and transparency");

(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes; further processing for archiving in the public interest, scientific or historical research or statistical purposes shall not be considered incompatible with the original purposes pursuant to Article 89(1) ('purpose limitation');

(c) adequate, relevant and limited to what is necessary for the purposes for which they are processed ("minimal data processing");

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data which are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without undue delay ('accuracy');

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data are processed solely for the purposes of filing in the public interest, scientific or historical research or statistical purposes in accordance with Article 89(1) provided that the appropriate technical and organisational measures are taken to safeguard the rights and freedoms of the data subject as required by this Regulation ("storage restrictions");

(f) processed by the application of appropriate technical or organisational measures in such a way that they ensure appropriate security and protect, inter alia, against unauthorised or unlawful processing and accidental loss, destruction or harm ("integrity and confidentiality").

Article 6

1. Processing shall be lawful only if and in so far as at least one of the following conditions is fulfilled:

[...]

e. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

[…]

4. Where processing for a purpose other than that for which the personal data were collected is not based on the data subject's consent or on a provision of Union law or a provision of national law which constitutes a necessary and proportionate measure within a democratic society to safeguard the objectives referred to in Article 23(1), the controller shall take into account, inter alia, when assessing whether processing for a purpose other than that for which the personal data were originally collected is compatible:

a. any relationship between the purposes for which the personal data were collected and the purposes of the intended further processing;

b. the framework in which the personal data have been collected, in particular as regards the relationship between the data subjects and the controller;

c. the nature of the personal data, in particular whether special categories of personal data are processed, in accordance with Article 9, and whether personal data relating to criminal convictions and offences are processed, in accordance with Article 10;

d. the possible consequences of the intended further processing for the data subjects;

e. the existence of appropriate safeguards, which may include encryption or pseudonymisation.