In December 2012, the Tax Authorities requested SMS Parking, a parking operator in several large Dutch municipalities, to provide all its clients parking data –
including registration numbers and geographical data together with date and time – so they could use this data to levy various taxes. The Tax Authorities made similar requests to several other parking operators, all of which complied.
SMS Parking, however, refused to cooperate as they felt that the request was disproportionate and a violation of the privacy of their customers. Furthermore, they stated that it is possible for the Tax Authorities to obtain this information via another route, for example, by the use of digital photos. In response, the Tax Authorities started summary proceedings with an application for a temporary injunction to coerce release of the data. The summary proceedings judge followed SMS Parking in their defence and ruled that parking behaviour of customers of SMS Parking was indeed privacy sensitive information since it reveals a lot about their personal (private) behaviour. The unlimited request for data from the Tax Authorities was an infringement on the privacy of SMS Parking customers which was disproportionate to the pursued objective and SMS Parking did not have to provide the parking data.
The judgment was however overturned on appeal. The court ruled that the unlimited request from the Tax Authorities is justified to ensure the economic welfare in the Netherlands. Nonetheless the Tax Authorities are bound by the requirements of proportionality and subsidiarity. According to the court, it is not relevant whether the Tax Authorities know in advance that the data is relevant for levying taxes against a particular taxpayer. The fact that it is an unlimited request for data from an extensive database does not make the request, by definition, disproportionate. In this case, the search is through databases containing more than 3 million registration numbers. According to the court, the parking operators are not asked to provide personal details of customers but only their registration numbers. In this respect the court believes that this fiscal method is proportionate.
An appeal on the principle of subsidiarity, based on the fact that it is possible to obtain data in a way which is less invasive of the privacy of the individuals concerned, did not help SMS either. SMS Parking suggested that the Tax Authorities could photograph the registration numbers themselves. The court held that this is not less invasive of the privacy of citizens and that it would be considerably more labour intensive. SMS Parking also offered to make a pre-selection for the Tax Authorities. The court dealt with this issue summarily, on the basis that this would affect the privacy of a large number of citizens, and in view of the fact that SMS Parking is not subject to the same rules as a government body. The conclusion is that SMS Parking has no legitimate grounds to refuse the provision of data and should release it forthwith. SMS Parking stated during the proceedings that they would disclose the parking data if this was the decision of the court. The final decision of the court is a pity from a privacy perspective, especially since the supervisory authorities (the Dutch Data Protection Authority – College bescherming persoonsgegevens) have not been tempted to issue an informal opinion. Therefore, it remains to be seen whether there will be a different interpretation of the proportionality test in future cases.
[Source: Court of Appeal ‘s-Hertogenbosch,19 August 2014, ECLI:NL:GHSHE:2014:2803]
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