ELQ Portefeuille I B.V. – Court Ruling (Netherlands, 2022)

The data subject owned a house with his ex-wife that was financed with a mortgage from the controller. After the divorce, the data subject sold the house and retained a residual debt of €61,502.89. The data subject then became depressed and was unable to work. In 2013 and 2014, he received a reduced income under the Dutch Sickness and Benefits Act. Following debt mediation, the data subject repaid €12,224.96 over three years. The controller wrote off the remaining €49,354.75, and the debt was discharged on October 5th, 2021. On June 8th, 2022, the data subject was once again employed and with his current partner, he signed a purchase agreement for a new house. The couple had until 5 September 2022 to come up with the necessary funds to complete the purchase, but they were denied a mortgage because the data subject's previous debt with the controller was still registered in a credit registry. On 4 July 2022, the data subject requested the controller to remove his name from the credit registry so that he could obtain a new mortgage. On 12 July 2022, the controller rejected the data subject's request. The data subject then filed a claim at the District Court of Amsterdam requesting that it to order the controller to remove his name from the credit registry. The legal basis for processing the data subject's personal data was Article 6(1)(f) GDPR: a credit registry protects the legitimate interests of consumers against excessive lending and protects lenders against borrowers who cannot or will not repay their loans. The Court took no issue with this legal basis, and the data subject did not dispute these legitimate interests. That being said, the data subject still had the right to object to processing under Article 21 GDPR and have his personal data deleted from the registry under Article 17 GDPR so long as these legitimate interests did not override his right to erasure. Weighing these interests, the Court considered that the data subject ran into financial problems not because of irresponsible borrowing or a pattern of excessive spending, but because of unfortunate personal circumstances. Furthermore, he had taken responsibility for paying off his debts to the extent that he was able, had returned to stable employment, and was seeking a loan to purchase a house within his current means. The data subject thus represented a low financial risk and had a significant interest in taking out a mortgage. While the controller had written off a substantial amount of the data subject's debt, the Court found that this single circumstance could not be decisive. It held that the interest of the data subject in moving on with his life and buying a new home with a new partner outweighed the controller's general interest in keeping the data subject's debt registered for the usual span of time. The Court thus granted the data subject's request, ordering the controller to remove the data subject's name from the credit registry. The controller had agreed to comply with the Court's judgment. However, the controller was ordered to pay the data subject's legal fees, estimated at €1,461.18.