RvS - 202001436/1/A2

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RvS - 202001436/1/A2
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Court: RvS (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 15(3) GDPR
Uitvoeringswet AVG
Decided: 22.07.2020
Published: 22.07.2020
Parties: Stichting Philadelphia Zorg, Zilveren Kruis, Stichting Cordaan
National Case Number/Name: 202001436/1/A2
European Case Law Identifier: ECLI:NL:RVS:2020:1743
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Raad van State (in Dutch)
Initial Contributor: n/a

This case is built around the Article 35 of the Dutch GDPR Implementation act, which allows data subjects to request courts to order controllers grant or reject requests under articles 15 to 22 of the GDPR without the assistance of lawyers. The Council of State considered whether this case was legally complex enough to justify the appellant's requested for the assistance of a lawyer. The Council upheld the previous Court decision and ruled that the problem at hand did not need a lawyer.

English Summary[edit | edit source]

Facts[edit | edit source]

By separate decisions dated 15 October 2018, the Amsterdam Legal Aid Board rejected appellant's requests for additional legal support. Appellant requested a copy of his and his stepdaughter’s personal data under Article 15(3) of the GDPR from Zilveren Kruis, Stichting Philadelphia Zorg, Stichting Cordaan and another party. On 30 August 2018 and 28 September 2018, appellant submitted six applications for additional legal assistance in proceedings against these parties under Article 35 of the GDPR Implementation act, on the grounds that, in his opinion, insufficient personal data had been provided. The Amsterdam Court of First Instance rejected the appellant's complaint on the ground that this problem did not need a lawyer. Appellant disputes this decision in the Council of State.

Dispute[edit | edit source]

According to the appellant, he only received an overview of the personal data in response to his data subject request, although he needed more information for a successful damage compensation procedure. He also argues that the GDPR case law demonstrates that this is a complex legal area. Appellant also pointed out that his data subject requests were, in essence, rejected, and his opponents hired large law firms to handle the case, which makes it emotionally distressing for him and his stepdaughter. Finally, he also has a pending appeal against the FOI request to Philadelphia before the Council of State. All of this proves, in the appellant's view, that the case is legally and factually complex. Appellant also questioned the fairness of the policy of the Amsterdam Legal Aid Board and claimed the violation of the right to effective remedy and fair trial.

Holding[edit | edit source]

The Council rejected the appeal based on the following:

  • The policy of the Legal Aid Board does not in general provide for legal support for data subject requests under Article 35 of the GDPR Implementation action, but exception can be made where cases are considered complex enough.
  • The arguments paid down by the appellant did not prove the legal and factual complexity of the case. The claim that his DSARs were rejected were not supported by any details or documents.
  • The Board was entitled to expect the appellant to explain in his own words why he expected more data in response to his data subject access request.
  • The fact that there are several ongoing proceedings, including the FOI request appeal, does not in itself prove the complexity of the proceedings for which appellants' requests were submitted.
  • Nor does the fact that conducting the proceeding is emotionally burdensome for the appellant.


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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
Council of State
Date of pronunciation
22-07-2020
Date of publication
22-07-2020 
Case number
202001436/1/A2
Jurisdictions
Administrative law
Special features
Appeals
Content indication
By various decisions dated 15 October 2018, the Amsterdam Legal Aid Board rejected applications for additions for [appellant]. Zilveren Kruis, Stichting Philadelphia Zorg (hereinafter referred to as: Philadelphia), Stichting Cordaan and [interested party] requested that a copy of the personal data of himself and his stepdaughter be provided pursuant to Article 15(3) of the General Data Processing Regulation. On 30 August 2018 and 28 September 2018, [the appellant] submitted six applications for additional legal assistance in proceedings against these parties under Article 35 of the AVG Implementation Act, claiming that insufficient personal data had been provided. The council rejected the [appellant's] applications because they concerned a problem for which he did not need a lawyer. [Appellant] disputes this.
Sites
Rechtspraak.nl 
Enriched pronunciation 
Ruling
202001436/1/A2.
Date of judgment: 22 July 2020
SECTION
ADMINISTRATIVE LAW
Ruling on the appeal of:
[appellant], living in Amsterdam,
against the judgment of the District Court of Amsterdam of 21 January 2020 in Case No 19/3224 in the proceedings between:
[appellant] and [party], having their offices in Amsterdam,
and
the Amsterdam Legal Aid Board (i.e. the Board of the Legal Aid Board; hereinafter: the Board).
Process sequence
By various decisions dated 15 October 2018, the council rejected applications for additions for [appellant].
By decision of 8 May 2019, the council dismissed the [appellant's] objections to the decision as unfounded.
By judgment of 21 January 2020, the court dismissed the appeal lodged by [the appellant] against the decision. This judgment is attached.
The [appellant] has lodged an appeal against this decision.
The Board has given a written explanation.
[appellant] has brought in a further piece.
The Division heard the parties by telephone on 6 July 2020. Dr C. Raat, advocaat te Voorschoten, on behalf of [the appellant], and M. Doets, on behalf of the council, participated in this telephone hearing.
Considerations
Introduction
1.    The relevant regulations are set out in the Annex which forms part of this ruling.
2.    Zilveren Kruis, Stichting Philadelphia Zorg (hereinafter referred to as: Philadelphia), Stichting Cordaan and [interested party] requested Zilveren Kruis, Stichting Philadelphia Zorg (hereinafter referred to as: Philadelphia), Stichting Cordaan and [interested party] pursuant to Article 15, third paragraph, of the General Data Processing Regulation (hereinafter referred to as: the AVG) to provide a copy of the personal data processed of himself and his stepdaughter. On 30 August 2018 and 28 September 2018, [the appellant] submitted six applications for legal assistance in proceedings against these parties under Article 35 of the AVG Implementing Act, on the grounds that, in his opinion, insufficient personal data had been provided.
    By various decisions of 15 October 2018, upheld by decision of 8 May 2019, the council rejected [the appellant's] applications pursuant to Section 12(2)(g) of the Legal Aid Act (referred to below as 'the Working Conditions Act'), on the grounds that the problem was one for which he did not need a lawyer. [Appellant] disputes this, arguing that there is factual and legal complexity and that therefore the assistance of a lawyer is necessary.
Attacked pronunciation
3.    The court ruled that the council could reasonably take the view that [the appellant] should in this case be deemed capable of conducting the proceedings without the assistance of a lawyer. To this end, the court considered that [the appellant] has not demonstrated that the proceedings under Section 35 of the AVG Implementation Act are factually and/or legally complex in his case, so that he should not be required to be able to conduct these proceedings himself or with the help of a third party other than a lawyer. The court points out that in these proceedings mandatory legal representation does not apply on the basis of Article 35(4) of the AVG Implementation Act. The argument of [the appellant] that applications under the AVG are often rejected and are therefore complex is not followed by the court, because the mere rejection of an application does not mean that the resulting dispute is in principle complex and that citizens cannot take legal action themselves. With regard to [the appellant's] argument that when an application is granted under the AVG, only a marginal overview of personal data is provided, the court considered that, in that case, the parties differed in their opinions about the amount of data to be provided and thus the complexity of a case was not yet established. According to the District Court, the fact that the other party has engaged several lawyers does not show that the case is complex either, because it is the choice of a litigant to engage legal assistance, even if the cases are less complex. Nor can it be deduced from [the appellant's] argument that the legislation on the AVG is the subject of much discussion and that case law is still being developed, according to the District Court, that the cases are complex. Furthermore, the court ruled that [the appellant] had not been denied access to the courts and that, in this case, the rejections of the applications for additions were not contrary to Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter'). The court has come to the conclusion that the council has rejected the application for an addition on good grounds.
Appeals
4.    [appellant] argues that the court wrongly held that the council could reasonably have taken the view that in this case he should be deemed capable of conducting the proceedings without the assistance of a lawyer. To this end, [the appellant] argued that the council's policy as set out in work instruction R010 was contrary to Section 28 of the Working Conditions Act, since according to that policy, applications for AVG proceedings were categorically rejected. Moreover, according to [the appellant], the decision-making process did not show that the council had investigated whether there was any reason to grant an addition because of the complexity of the facts and the law. [the appellant] pointed out that, in response to his requests under the AVG for his personal data, he had received only generic lists of categories of data, but that he needed more information in order for the AVG's claims to be successful. According to [the appellant], he was unable to conduct the proceedings without legal assistance, as it followed from AVG case law that this was a complex area of law. The appellant also pointed out that requests for personal data were categorically rejected, that the other parties hired large law firms, and that conducting the proceedings was emotionally stressful for him and his stepdaughter. Finally, [the appellant] referred to an appeal against a request made by him under the Government Information (Public Access) Act (Wob request) for information from Philadelphia that was currently pending before the Division. In view of this, according to [the appellant], the cases are indeed complex both in fact and in law.
    Furthermore, [the appellant] argued that the policy pursued by the council, laid down in work instruction R010, was contrary to Section 28 of the Working Conditions Act, since, according to that section, compulsory legal representation was not a criterion for granting an addition. In this connection, [the appellant] pointed out that in other administrative law cases, such as those concerning social assistance and social security, legal representation is not compulsory either, but that in such cases, an addition is usually granted.
    Finally, [the appellant] argues that, by not granting subsidised legal aid, he is prevented from exercising his right to effective access to justice as guaranteed by Article 47 of the Charter and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR').
Appeal review
5.    It is not disputed that [the appellant] submitted applications for additions for the proceedings against Philadelphia and Zilveren Kruis on both 30 August 2018 and 28 September 2018, and that the applications submitted on 28 September 2018 alone were therefore rightly rejected. It is disputed whether the remaining applications for inclusion in the proceedings against the four bodies referred to in recital 2 were correctly rejected.
- Factual and legal complexity
5.1.    Pursuant to Section 12(2)(g) of the Working Conditions Act, legal aid is not granted if it concerns an interest the representation of which can reasonably be left to the applicant himself, if necessary with the assistance of another person or institution whose activities do not fall within the scope of this Act. When assessing whether an application concerns an interest the representation of which can reasonably be left to the applicant himself, the Board has room for discretion. In this context, the council has developed policy, which is laid down in work instruction R010. These work instructions state that no additions will be made for cases in which a person seeking justice submits an application to the court pursuant to Article 35 of the AVG Implementation Act, requesting that a non-public institution be ordered to grant or reject the application pursuant to the AVG, because the person seeking justice can do so himself/herself. Furthermore, work instruction R010 states that an addition may be made in exceptional cases. In that case, the lawyer must indicate in the application that the case is so complex in fact and/or law that the assistance of an attorney at law is necessary, according to work instruction R010.
5.2.    The District Court has rightly ruled that the council's policy, as laid down in work instruction R010, is not contrary to Section 28 of the Working Conditions Act, since this policy contains an exception possibility for cases that are complex in fact and/or law. Contrary to what [the appellant] argues, therefore, this policy does not categorically reject applications for additions in cases concerning the AVG.
5.3.    In the opinion of the Division, the arguments put forward by the [appellant] above do not make it plausible that the cases for which he submitted applications for inclusion are complex in fact or in law. The appellant's assertion that requests for copies of personal data are categorically rejected was not supported by any details or documents, and therefore did not lead him to the conclusion that the case was complex. Furthermore, the District Court rightly considered that the mere fact that an application is rejected or that the requested personal details have not been provided does not mean that the dispute that has arisen as a result is complex. The council was entitled to expect [the appellant], if necessary assisted by persons or institutions other than an attorney at law, to state in his own words why he is of the opinion that more processed personal data should be provided to him. The question of whether more processed personal data should be provided to [the appellant] was not such a complex legal issue that it required the assistance of a lawyer.
    Therefore, the fact that the case law on the AVG is not unambiguous and that this is a complex area of law, did not have to lead the council to a different opinion. At the meeting of the Division, the council explained that, for example, cases involving the interpretation of articles of the AVG could be regarded as legally complex. The decisions of the Noord-Holland District Court of 23 May 2019 and the Amsterdam District Court of 10 October 2019 brought by [the appellant] date from after the decision of 8 May 2019. As a result, the council did not need to see any grounds in these decisions for considering the case to be legally complex. To the extent that [the appellant] argued that the case had now become legally complex, the council stated at the session that [the appellant] was entitled to submit a new application for an addendum and that he was also entitled to base it on new developments in the proceedings. The fact that several of the proceedings of [the appellant] are ongoing, including an appeal pending before the Division concerning a Wob request for information from Philadelphia that he had submitted, does not in itself lead to the opinion that the proceedings for which the requests were submitted are complex.
    In the circumstance that conducting the proceedings is emotionally stressful for [the appellant], there is also no ground for the opinion that assistance by an attorney at law is necessary. If so desired, another person or institution as referred to in Section 12, subsection 2, opening words and under g, of the Working Conditions Act may be of assistance. As the District Court rightly considered, the circumstance that the opposing parties have called in several lawyers does not in itself show either that the case is complex, because it is the choice of a litigant to call in legal assistance.
5.4.    In the opinion of the Division, the argument put forward by [the appellant] that work instruction R010, contrary to Article 28 of the Working Conditions Act, includes the argument that legal representation is not compulsory in proceedings under Article 35 of the AVG Implementation Act, partly because legal aid is granted in various administrative law cases, cannot be followed. With this argument, [the appellant] ignores the fact that the policy laid down by the council in work instruction R010 does not stand in the way of an addition being made in the event that the application states the grounds on which it is based that a case in which an application is made under Article 35 of the AVG Implementation Act is complex from a factual or legal point of view.
5.5.    There was no evidence that the council incorrectly applied its policy in deciding on [appellant's] applications. Now that [the appellant] has invoked the exception in work instruction R010, it is up to him to demonstrate that the exception described in it applies. The council has given sufficient reasons for its decision that the documents submitted do not show that the cases are complex from a factual or legal point of view.
5.6.    In the light of the above, the District Court rightly concluded that the grounds on which the [appellant] submitted the applications did not make it plausible that the cases for which he had submitted applications for additions were complex in fact or in law.
- Article 47 of the Charter and Article 6 of the ECHR
5.7.    Article 47 of the Charter states that the right to subsidised legal aid is limited to legal aid necessary to ensure effective access to justice. Article 12(2)(g) of the Working Conditions Act only limits the subsidization of legal aid in cases where the representation of an interest can reasonably be left to the applicant himself, if necessary with the assistance of another person or institution whose activities do not fall within the scope of the Working Conditions Act. Furthermore, Article 28, paragraph 1, opening words and under c, of the Working Conditions Act provides that an addition may be refused if it concerns a legal problem which, in the opinion of the council, can be easily dealt with. It follows from these articles that subsidized legal aid is granted if this is necessary because the case cannot be left to the applicant. The restrictions contained in Article 12(2)(g) and Article 28(1)(c) of the Wrb thus fall within the limit of the right to subsidised legal aid laid down in Article 47 of the Charter. In the opinion of the Section, Article 12(2)(g) and Article 28(1)(c) of the Wrb do not violate Article 47 of the Charter.
    Furthermore, the Division is of the opinion that Article 12(2)(g) of the Working Conditions Act is not contrary to Article 6 of the ECHR. For the reasons for this opinion, the Division refers to the judgments of 24 May 2017, ECLI:NL:RVS:2017:1365 and of 10 October 2018, ECLI:NL:RVS:2018:3303).
    In view of the above, [the appellant]'s reliance on Article 47 of the Charter and Article 6 of the ECHR fails.
Conclusion
6.    In view of the considerations set out above under 5.6. and 5.7., the District Court rightly ruled that the council was entitled to reject [the appellant's] requests for an addition pursuant to Section 12, subsection 2, opening words and (g), of the Working Conditions Act in all reasonableness.
    The argument fails.
7.    The appeal is unfounded. The judgment under appeal must be upheld.
8.    There are no grounds for an order to pay costs.
Decision
The Administrative Jurisdiction Division of the Council of State:
confirms the attacked verdict.
Thus determined by Mr H.G. Sevenster, member of the single chamber, in the presence of Mr M.A. Nieuwenhuizen, Registrar.
The member of the single chamber is prevented from signing the decision.   
The Registrar is prevented from signing the judgment.
Pronounced in public on 22 July 2020
633.