Uitspraak Nº C-09-550982-HA ZA 18-388 (English). Rechtbank Den Haag, 2020-02-05

• ECLI: ECLI:NL:RBDHA:2020:1878
• Docket Number: C-09-550982-HA ZA 18-388 (English)
• Date: 05 Febrero 2020
• Court: Rechtbank Den Haag (Neederland)

vonnis

THE HAGUE DISTRICT COURT

Commerce Team

Case number / cause list number: C/09/550982 / HA ZA 18-388

Judgment of 5 February 2020

in the matter of

1 NEDERLANDS JURISTEN COMITÉ VOOR DE MENSENRECHTEN

established in Leiden,

2. STICHTING PLATFORM BESCHERMING BURGERRECHTEN
established in Amsterdam,

3. STICHTING PRIVACY FIRST established in Amsterdam,

4. STICHTING KOEPEL VAN DBC-VRIJE PRAKTIJKEN established in Amsterdam,

5. LANDELIJKE CLIËNTENRAAD established in The Hague,

6. [claimant sub 6] of [residence 1] ,

7. [claimant sub 7] of [residence 2] ,

eisers,

attorney mr. A.H. Ekker of Amsterdam,

and

FEDERATIE NEDERLANDSE VAKBEWEGING established in Utrecht,

intervening third party, joining the claimants,

attorney mr. A.H. Ekker of Amsterdam,

versus

THE STATE OF THE NETHERLANDS seated in The Hague,

defendant,

attorney mr. C.M. Bitter of The Hague.

Claimants are hereinafter jointly also referred to as NJCM et al. and separately as NJCM, Platform Bescherming Burgerrechten, Privacy First, Koepel van DBC-Vrije Praktijken, Landelijke Cliëntenraad, [claimant sub 6] , and [claimant sub 7] , respectively. The intervening third party is referred to as FNV. The defendant is referred to as the State.

This judgment is structured as follows:

1 The course of the proceedings 1.1-1.3

2. NJCM et al. and FNV

2.1-2.5

3. The facts

3.1-3.10

4. The SyRI legislation

4.1-4.3 General

4.4-4.7 Data supply for use by a collaborative alliance

4.8-4.10 Legal basis for SyRI
4.11-4.16 Risk reports, retention obligation, removal from SyRI and confidentiality

4.17

Data which may be processed in SyRI
4.18 SyRI application flowchart
4.19-4.26 The request for application of SyRI, advice of LSI and duration of SyRI project

4.27-4.31 Data processing

4.32

Feedback on results of risk reports
4.33 Supervision

5. The dispute

5.1-5.4

6. The assessment

6.1

Introduction

6.9-6.18 Admissibility, and procedural position of FNV

6.19

General assessment framework

6.20-6.26 Protection of human rights
6.27-6.36 Protection under Union law
6.37-6.41 Interrelationship ECHR and Union law and the arguments between the parties

6.42-6.44 The alleged violation of Article 8 ECHR

6.45-6.54 Extent and seriousness of the interference: what is SyRI? Dragnet, untargeted approach, data mining, ‘deep learning’, ‘big data’?

6.55-6.60 Extent and seriousness of the interference: profiling and automated individual decision-making?

6.61-6.65 Abstract

6.66-6.72 In accordance with the law
6.73-6.79 Necessary in a democratic society: general
6.80-6.107 Necessary in a democratic society: proportionality and subsidiarity

6.108-6.117 The claims of NJCM et al.

6.118 The costs of the proceedings

7. The decision

1 The course of the proceedings

1.1.

The course of the proceedings is evidenced by the following:

• -

  the summons of 27 March 2018 with exhibits,

• -

  the statement of defence with exhibits,

• -

  the judgment in the procedural issue for joinder of 26 September 2018 along with the documents named therein,

• -

  the document containing comments on the part of FNV of 14 November 2018,

• -

  the reply on the part of the State of 14 November 2018,

• -

  the judgment of 2 January 2019, ordering a personal appearance of the parties,

• -

  the report of the personal appearance of the parties, drawn up without the presence of the parties involved of 29 October 2019 and the document containing exhibits on the part of NJCM et al., submitted at the hearing, with exhibits.

1.2.

The parties were offered the opportunity to file factual comments on the report. The State made use of this opportunity with its letter of 29 November 2019 and NJCM et al. with its letter of 3 December 2019. The court reads the report with due observance of the parties’ comments.

1.3.

Finally, a date for judgment was scheduled.

2 NJCM et al. and FNV

2.1.

NJCM et al. is a coalition of civil society interest groups and two natural persons.

2.2.

The Dutch Section of the International Commission of Jurists (Nederlands Juristen Comité voor de Mensenrechten – NJCM) is an organisation involved in the protection and strengthening of human rights and fundamental freedoms. The Civil Rights Protection Platform (Platform Bescherming Burgerrechten) focuses on the protection of traditional civil rights. Privacy First aims to preserve and promote the right to privacy. The Umbrella Organisation of DBC-free Practices (Koepel van DBC-Vrije praktijken) is committed to the protection of the right to privacy of clients of psychotherapists.

2.3.

The National Client Participation Council (Landelijke Cliëntenraad) was established pursuant to the Work and Income (Implementation Organisation Structure) Act (Wet structuur uitvoeringsorganisatie werk en inkomen, hereinafter: SUWI Act or the Act). This organ consists of representatives of national client organisations, municipal client participation organisations and the central client participation councils of the Employee Insurance Agency (Uitvoeringsinstituut werknemersverzekeringen, hereinafter: UWV) and the Social Insurance Bank (Sociale verzekeringsbank, hereinafter: SVB). The National Client Participation Council is responsible for periodically consulting UWV, SVB, the municipal authorities and the Minister of Social Affairs and Employment (hereinafter: the Minister) about the design and implementation of client participation at the organs in questions, and to consult the Minister about proposals of the National Client Participation Council regarding policy issues in the area of work and income.1 According to its internal rules, the National Client Participation Council aims to fulfil a key role pertaining to client participation regarding policy issues in the area of work and income, among other things.

2.4. [claimant sub 6] is a philosopher, lawyer, author and columnist. [claimant sub 7] is an author, columnist and presenter.

2.5.

The Netherlands Trade Union Confederation (Federatie Nederlandse Vakbeweging – FNV) is a trade union. It promotes the interests of its members, guided by – among other things – the fundamental values of equality of all persons, freedom, justice and solidarity.

3 The facts

3.1.

The Systeem Risicoindicatie (hereinafter: SyRI) is a legal instrument the Netherlands government uses to prevent and combat fraud in the area of social security and income-dependent schemes, taxes and social security, and labour laws. According to the legislator, SyRI is a technical infrastructure with associated procedures with which data can be linked and analysed anonymously in a secure environment, so that risk reports can be generated.2

3.2.

A risk report means that a legal or natural person is deemed worthy of investigating with regard to possible fraud, unlawful use and non-compliance with legislation.

3.3.

The Minister applies the instrument at the request of certain government bodies or other bodies with a public function. These currently are the Municipal Executives (hereinafter: the municipal authorities), UWV, SVB, the Netherlands Tax and Customs Administration (hereinafter: the Tax and Customs Administration), the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, hereinafter: IND) as well as supervisory authorities such as the Social Affairs and Employment Inspectorate. These bodies may form a collaborative alliance in which they exchange data. By applying SyRI, the data files which the government or other bodies have available are linked in a structured manner to be able to identify related abuses in the aforementioned areas and increase chances of catching the perpetrators of such abuses.

3.4.

According to the legislator, this method leads to an efficient and effective use of the control system.

3.5.

The technique used in the application of SyRI is based on a practice predating a legal basis for the use of SyRI. A nationwide structure of intervention teams was established for the purpose of a joint approach to taxes and social security fraud, social benefits fraud, illegal employment and associated abuses.

3.6.

In 2003 the bodies involved in this structure concluded a Cooperation Agreement for Intervention Teams. The agreement created a two-level structure: a National Intervention Teams Steering Group (Landelijke Stuurgroep Interventieteams – hereinafter: LSI) and projects carried out at the regional level by Anti-Fraud Regional Platforms. The Cooperation Agreement for Intervention Teams was updated in 2017.3

3.7.

The LSI is chaired by a representative of the Ministry of Social Affairs and Employment and is comprised of representatives of the Social Affairs and Employment Inspectorate, the Tax and Customs Administration, the UWV, the police, the municipal authorities (represented by the Association of Netherlands Municipalities (Vereniging van Nederlandse Gemeenten – VNG)), the SVB, the Public Prosecution Service and the IND.

3.8.

Legal provisions for linking files4 have been in place since 2004 pursuant to the Work and Social Assistance Act (Wet werk en bijstand, hereinafter: WWB). Section 64 WWB (as of 1 January 2015: Participation Act) obliges certain bodies to provide statements and information to UWV required for the implementation of said act. In 2005 the then State Secretary for Social Affairs and Employment adopted a framework for the accessibility of data sources for the purpose of linking records. In 2005 the Waterproof project was launched. In this project record linkage occurred in which the living situation of recipients of social assistance under the WWB in 65 municipalities was verified by linking the consumption figures...