Uitvoeringsinstituut werknemersverzekeringen – Court Ruling (Netherlands, 2023)

On 16 July 2021, the controller, the Institute for Employee Insurance, a public body, informed the data subject of a data breach. Five letters meant for the data subject were sent to the the wrong address. After a complaint made by the data subject to the controller, the controller offered €250 in compensation. The data subject did not agree with the amount offered and demanded €3000. In addition, she made an access request under Article 15. The controller rejected the claim of €3000. The data subject then appealed the controller's rejection of their initial claim and made another claim for compensation under Article 8:88 AWB to the controller as a public administrative body. Article 8:88 AWB provides that "the administrative court is entitled, at the request of an interested party, to order an administrative body to compensation for damage suffered or will suffer by the interested party." The controller rejected the data subject's claim under Article 8:88 AWB. The controller argued that Article 8:88 AWB did not apply to it because the matter involved sending letters to the wrong address, was a factual action, not a formal decision with legal implications for the purposes of Article 8:88 AWB. The data subject appealed this to the Administrative Court of Den Haag. The Court treated the data subject's case as a request for compensation under Article 8:88 Awb in connection with Article 82 GDPR. The Court made an order under Article 8:88 AWB ordering the Institute for Employee Insurance to compensate the data subject for the data breach. However, the calculation of the amount to be paid was based on Article 82 GDPR. The Court determined that for the purposes of non-material damages under Article 82 GDPR, a compensatory amount of €500 was fair and appropriate. The Court considered the psychological impact of the data breach on the data subject, but noted that the five letters were returned in sealed envelopes and there was no evidence of third-party use.