Municipal Executive of Bladel – Court Ruling (Netherlands, 2022)

The controller is the Municipal Executive of Bladel (an administrative body). The data subject is a dog trader (and her partner). In 2013, the police started an investigation to combat malicious dog trading. The data subjects were included in a report that was drawn up regarding this investigation. The investigation resulted in an enforcement action in 2016. The data subjects started administrative and civil proceedings on the (lawfulness of the) enforcement action. In March 2018, the data subjects submitted a request for erasure at the controller, concerning their personal data laid down in said report. The controller denied this request by decision of October 2018. The data subjects appealed this decision up until the Administrative Division of the Council of State. The Division found that the controller's decision lacked substantive reasoning and ordered it to issue a new one. The controller denied the data subjects request again by decision of November 2020. It held that retention of the personal data was necessary pursuant to Article 17(3)(e) AVG, to substantiate it's defense in the civil proceedings started by the data subjects. The data subject appealed this decision, stating that the controller cannot invoke the exception of Article 17(3)(e). She argued that the Article specifically refers to the establishment, exercise or substantiation of a legal claim, however it does not include the defense against one. The Division noted that not only the wording, but also the context and purpose should be considered when interpreting EU legislation (HvJ Tarola). This required a comparison of the different language versions (HvJ Consorzio). The Division found that the English, German and French version of Article 17(3)(e) all had a much broader scope than the Dutch text. They contained some translation of the word 'defense,' (defence; Verteidigung; défense) while the Dutch version merely used the word 'substantiation' (onderbouwing). The Division further noted that in case of these differences in translations, it must consider the objective and purpose of the legislation for a uniform interpretation (CJEU Kraaijveld). The objective is the protection of natural persons when processing personal data (Recital 1&2), however this must be balanced with other fundamental rights recognized in the Charter (Recital 4). In particular, the Division followed, Article 47 of the Charter, which included the right of defense (CJEU Otis). Thus, the German, English and French versions of Article 17(3)(e) were more consistent with the purpose of the AVG. The Division held that, contrarily to what the data subject argued, Article 17(3)(e) AVG does include the defense against a legal claim. Therefore, the appeal was unfounded.