Amsterdam court recognises social importance of cash

In the appeal of the chairman of Privacy First against license plate parking, the Amsterdam Court of Appeal unfortunately did not dare to declare license plate parking and the lack of cash (anonymous) payment option unlawful, zo revealed late last week (pdf). It is true that the Court explicitly recognises "the importance of maintaining the possibility of paying in cash" and also refers to bodies such as the Nederlandsche Bank (DNB) that also endorse this importance. At the same time, however, the Court states that current legislation would not oblige (municipal) authorities to allow cash or anonymous payment of parking tax. In doing so, the Court refers to, among other things, an outdated Supreme Court ruling from 2005 and old, summary European legislation. The Amsterdam Court of Appeal also ruled that the outdated (national) Municipal parking tax decree (2001) does not imply a right to an anonymous means of payment. Nevertheless, the Court suggests that anonymous payment would be possible through an unregistered prepaid credit card. Privacy First considers this opinion (including the latter suggestion) of the Amsterdam Court of Appeal incorrect and is considering legal action towards both the Supreme Court and the European Court of Justice. Privacy First feels strengthened in this by the current social debate and recent political calls to maintain cash and improve cash payment options, especially also in local governments. Recently, the House of Representatives adopted unanimously passed a motion here about it. Further parliamentary motions and possible legislative amendments to preserve and strengthen cash are on the horizon.

Flawed Amsterdam Court of Appeal ruling on legality of license plate parking

On the legality of (the system of) license plate parking, the Court of Appeal of Amsterdam ruled ambiguously: first, the Court of Appeal ruled that license plate parking as such constitutes a "non-prohibited interference" with the right to privacy, thus acknowledging on the one hand that there is an interference (infringement), but that it is not prohibited. However, the Court then goes on to consider that there would be no interference at all, only to then still "hypothetically" rule that the interference in question would be justified and thus would not constitute a violation (unjustified infringement) of the right to privacy. Privacy First considers this line of argumentation incomprehensible and, more importantly, incorrect. Moreover, the Court of Appeal hardly (and incorrectly) tested necessity, proportionality and subsidiarity, while that is precisely what this case is about. In addition, the Court of Appeal left numerous objections against ticketing unmentioned, including the lack of a specific legal basis for ticketing in national legislation surrounded by privacy safeguards, the fact that parking data is used for other purposes and can be misused (function creep), the fact that "efficiency" cannot legally justify curtailing the right to privacy, etc.

Introduction of license plate parking remains voluntary

The case centres on a number of new questions of principle of law surrounding license plate parking and the right to cash payment. As a result, the current judgment of the Amsterdam Court of Appeal leaves the earlier Rulings (confirmed by the Supreme Court) that introduction of the license plate for parking is not mandatory, unaffected. License plate parking is and will thus remain voluntary: any parking fine for non-implementation of a license plate should be overturned on objection and appeal, provided the parker can prove that parking was paid for.

Right to anonymity in public space

Privacy First is pursuing this case to preserve and strengthen the right to anonymity in public spaces. This right has been under increasing pressure in recent years and is now in danger of becoming illusory. If necessary, Privacy First will therefore pursue this case all the way to the European Court of Human Rights in Strasbourg.

Read here the full statement of the Amsterdam Court of Appeal dated 5 February last in anonymised pdf (received by Privacy First on 8 February).

Update 3 March 2019

The court's ruling has since also published on rechtspraak.nl. Privacy First is still considering possible next steps.

Update 2 May 2019

today, the chairman of Privacy First filed an appeal in cassation with the Supreme Court.

Update 22 September 2019

Today, NOS News and Nieuwsuur paid extensive attention to the increasing use (and abuse) of scanning cars.

Update 10 April 2020

Today the Supreme Court ruled. The Supreme Court ruled that license plate parking is a systematic violation of the right to privacy. According to the Supreme Court, however, this is justified by the alleged existence of a legal basis, namely a local parking ordinance of the municipality of Amsterdam. However, that legal basis does not contain any privacy guarantee as required by the European Human Rights Convention (art. 8 ECHR). Privacy First therefore expects to still win this case at the European Court of Human Rights in Strasbourg.

Supreme Court silent on right to anonymous, cash payment

In today's ruling, the Supreme Court largely refused to consider the substance of the case. The Supreme Court is beating around the bush on several points. First of all, the Supreme Court does not want to rule on the first fundamental aspect at the heart of the case: the right to anonymous or cash payment when parking. This right stems, among other things, from the right to privacy in the sense of anonymity in public spaces. The Supreme Court does not argue why it does not want to rule on this and merely refers to Section 81 of the Judicial Organisation Act: supposed lack of importance for the unity of law or the development of law. This judgment is incomprehensible, as this is precisely a highly topical issue on which there is much legal uncertainty.

Supreme Court deems license plate parking systematic invasion of privacy, but refuses substantive review

In line with Privacy First's argument, the Supreme Court rules that license plate parking constitutes a systematic infringement of the right to privacy. Under Art 10 Constitution and Art 8 ECHR, this requires a legal basis. According to the Supreme Court, a local parking ordinance without legal privacy safeguards is sufficient for this purpose. However, the Supreme Court does not test the lack of legal privacy safeguards in licence plate parking at all. Thus, on this fundamental aspect too, the Supreme Court is beating about the bush. Privacy First considers this judgment contrary to European privacy law and expects to successfully challenge it in the Strasbourg Court.

Supreme Court leaves abuse of scanning cars unnamed

Another fundamental aspect that the Supreme Court does not want to comment on concerns the misuse of scanning cars in license plate parking for other purposes, including the detection of confused people, litter and monument conservation. Such function creep (goal shifting) violates the right to privacy and is highly topical just now, as evidenced, for example, by the coverage today on the new deployment of camera cars in the Corona crisis. Privacy First regrets that the Supreme Court would rather keep silent than rule on such extra-legal deployment of scanning cars.

Read here the full verdict From the Supreme Court on jurisprudence.co.uk.

Update 28 April 2021

the European Court of Human Rights (ECHR) in Strasbourg has unfortunately declared Privacy First's multiple complaint against the above Supreme Court ruling virtually inadmissible. The same happened in recent years with, among others, two lawsuits by Privacy First against unregulated route controls and a Privacy First-supported case by VP GPs against the National Switch Point (EPD). Privacy First-backed cases against mandatory fingerprinting in passports and identity cards have been sitting on the Strasbourg shelf unresolved since 2016. The same applies since 2018 to the coalition case 'Citizens against Plasterk' on international data sharing between secret services. Combined with recent disappointing, uncritical ECHR rulings on mass surveillance and compulsory vaccinations, this now makes Privacy First wonder: wouldn't Dutch citizens be much better off with a national Constitutional Court?