Autoriteit Persoonsgegevens – Court Ruling (Netherlands, 2020)

On 12 November 2018 Autoriteit Persoonsgegevens (Dutch DPA) rejected the applicant’s request for enforcement. On 12 June 2019 the DPA declared applicant’s objection invalid. On 4 February 2020 the court dismissed the applicant’s appeal. Applicant is now appealing this Court decision before the preliminary relief judge of the Council of State. Applicant is asking the preliminary relief judge to urgently order DPA to: a) Notify relevant transportation companies in the European Union that they can start an investigation into the decommissioning of the ATB system and request these companies to continue supporting the system; b) Investigate the historical and current facts behind the decommissioning; c) Prevent further decommissioning if the investigation shows that the ATB system is being dismantled; d) Report the outcome of the investigation for the Court to use in the main proceedings. Dutch DPA is of the opinion that NS (Dutch public transportation company the applicant complained about) did not violate GDPR, so the enforcement is rejected. Moreover, according to the DPA, the applicant’s enforcement request only concerns cases where NS acts as a controller, which means it only applies to situations where NS sells its own tickets and not international tickets of other companies. The preliminary relief judge cannot order DPA to investigate the decommissioning of the ATB system because the judge cannot be sure that the DPA will get the same order as the result of the main proceedings. The judge founds it important that the ATB system stayed in use until the end of 2019, so it was possible to buy such ticket at the time of the applicant’s objection to the DPA. Also, Dutch DPA’s enforcement powers regarding foreign transportation companies would need to be considered separately as NS is indeed acting as a processor to those companies. Lastly, the preliminary relief judge did not agree that the dissemination of the ATB system would be irreversible. If at any point NS is found violating the GDPR by not offering an option to buy tickets without providing personal data, it will be the obligation of NS to provide a solution.