Case summary

Deciding Body
Court of Appeal ’s-Hertogenbosch
Gerechtshof ’s-Hertogenbosch
National case details
Date of decision: 18.01.18
Registration ID: 200.221.396_01
Area of law
Data protection

Safeguards for access to justice
Right to access a court, Right to an effective remedy before a tribunal
Relevant principles applied

Identification of the case

National law sources
  • Art. 46 Wet bescherming persoonsgegevens (Dutch Data Protection Act)
  • Art. 35 Wet bescherming persoonsgegevens
EU law sources
  • Directive 95/46/EC – the protection of individuals with regard to the processing of personal data and on the free movement of such data
  • Article 47 of the Charter of Fundamental Rights of the European Union

Summary of the case

Facts of the case

The applicant owned bank accounts at the firm of the defendant. In response to the bank’s terminating all accounts with the applicant, the applicant made use of an application under the Dutch Data Protection Act and asked the bankers to give him an overview and statement of all his personal details that the bank had ever processed, including the mentioning of all those who had received these details and all other possible information about the origin of these details. The bank responded to this request, providing a letter including the information applicant had requested. The applicant nevertheless took the bank to court, requesting the same things he had requested the bank before.
The court of first instance rejected his request and ordered him to pay for the legal costs made at the court in first instance (this is a standard procedure in Dutch procedural law). The applicant did not agree with this decision and took his case to the Court of Appeal. One of his grounds of appeal entailed that the order to pay for the legal costs as well as the court fees conflicted with the Data Protection Directive and with Article 47 of the Charter of Fundamental Rights of the European Union. Due to Dutch procedural law, the case was then split up in two different judgements of the Court of Appeal: one in which the claim concerning the court fees was reviewed, the other in which inter alia the claim concerning the legal costs was adjudicated.

Type of enforcement
  • Civil judicial enforcement
Reasoning (legal principles applied)

The Court of Appeal that is judging about the court fees, first mentions Puškár (27 September 2017, ECLI:EU:C:2017:725, C-73/16), following with an elaboration on Article 22 of Directive 95/46. This provision states that Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed by the national law applicable to the processing in question. It then relates this provision to Art. 47 of the Charter. The Court mentions that art. 47 of the Charter does not in itself excludes national provisions that charge court fees before one can obtain access to a court, as long as it meets the requirements of article 52 (1) of the Charter. The court then goes on applying these requirements. The provision of paying court fees has a legal basis and a legitimate aim. It is a means to finance the judicial system and is not tailored for every specific case. The fees therefore can be considered to meet objectives of general interest. The Court states that the fee of 313 euros is not an excessively high amount and therefore is not disproportionate. The court fee does not affect the right to access to justice at its core and can therefore not be seen as an infringement on Art. 47 of the Charter. The Court judges the court fee not to be in conflict with Art. 47 of the Charter.

The other Court of Appeal, however, bases its judgement on the legal costs entirely on what has been decided in the Puškár case. It states that given the considerations of the Court of Justice in Puškár, in cases concerning requests and appeals related to rights protected by the Directive 95/46 on the protection of individuals (implemented in national law), the applicant cannot be ordered to pay the legal costs. These costs also do not have to be paid when the request of the applicant has been turned down. The order to pay for the legal costs might constitute an obstacle to the exercise of the right to a judicial remedy guaranteed by Article 47 of the Charter that is to high to overcome. This Court of Appeal concludes that the legal costs at the Court of first instance as well as the Court of Appeal, do not have to be paid by the applicant.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

This is quite a unique case in the sense that it explicitly and extensively refers to art. 47 of the Charter, on which it bases its entire judgement concerning the amounts to be paid by the applicant.

Safeguards for access to justice
  • Right to access a court
  • Right to an effective remedy before a tribunal
Relevance of CFREU and ECHR articles or related rights

The Court of Appeal that judges the legal costs devotes a great part of its consideration concerning Art. 47 of the Charter citing Puškár (27 September 2017, ECLI:EU:C:2017:725, C-73/16, §54-60, §70, 75, 76). In the following, it concludes that these considerations by the CJEU are reason not to order the applicant to pay for the legal costs of proceedings at first instance as well as those at the Court of Appeal, even though the applicant lost the case. The national rule which entails that the party whose appeal has been denied shall pay for the legal costs, is thus set aside because it would obstruct requests such as those of applicant, in which applicant is making use of the rights offered to him by the Directive and on the basis of which he is bringing proceedings to court. This would be in violation of Article 47 of the Charter.
The Court of Appeal that decides on the court fees, however, also mentions article 47 and Puškár, but comes to a different conclusion. It concludes that article 47 of the Charter does not have to be interpreted in such a way that it will obstruct national rules that state that people can only have access to courts on the condition they pay the court fees first, before a court will judge if his rights given to him by Directive 95/46 are infringed.
On the basis of Article 47 of the Charter, one court has thus decided the applicant does not have to pay for the legal costs, whereas the other court decided the court fees will nevertheless have to be paid.

Relevant principles applied
  • Effectiveness
Principle of effectiveness

The Court of Appeal judging the court fees mentions that Member States must, when determining the procedural provisions for going to court, bear in mind the principle of effectiveness and that it should therefore not be made impossible or very hard to go to court for possible infringement of rights given to individuals by Directive 95/46. It nevertheless argues that limitations such as court fees are allowed, as long as they are laid down by law, access to court is not been affected at its core, it has a legitimate aim and the principle of subsidiarity is respected (following Art. 52 (1) of the Charter). The Court of Appeal concludes that these conditions were met.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
Cited CJEU
  • CJEU C-73/16, Puskar
Dialogue techniques

The Courts of Appeal both refer to Puškár, in which an extensive overview of other case law has been given.

Additional notes on the decision

External links

Case author

Fien de Ruiter, University of Amsterdam

Published by Gianmatteo Sabatino on 27 February 2018