Kafkaesque State Council ruling in case against waste pass
The State Council recently heard a landmark lawsuit filed by an individual Arnhem resident against the local waste pass. In an increasing number of Dutch municipalities, citizens can only deposit their rubbish in underground rubbish containers with the help of a personalised waste pass. This violates the right to privacy.
No anonymous pass
Each waste card is linked to an individual home address. This allows municipalities to find out exactly who disposes of his/her rubbish where and when, and thus also have insight into everyone's life pattern, such as when someone is usually at home or absent or on holiday. So very sensitive data, for instance for hackers and burglars. Arnhem resident Michiel Jonker rightly considers this a violation of his right to privacy. After all, the use of rubbish containers does not require a rubbish card "by name"; an anonymous rubbish card is sufficient for this purpose.
During the court hearing (attended by Privacy First and media), the municipality of Arnhem could not argue why this type of rubbish card had been chosen instead of a privacy-friendly, anonymous alternative. When asked, the municipality of Arnhem was also unable to properly tell the judges for what purposes the information from the household waste card is used. When asked by the judges what municipal decision underpinned the introduction of the household waste card, the courtroom also remained painfully silent.
Because of the lack of a proper introduction decision, the Gelderland court had previously deemed the personal notification to all Arnhemmers (by letter) about the introduction of the household waste card to be such a decision. After all, the new rubbish pass constitutes a breach of their right to privacy, and without a formal decision on the matter, there would be a gap in legal protection. Indeed, to challenge such a measure, an administrative law remedy is needed: a formal decision against which objection and appeal are available. However, no such decision exists in Arnhem (or in other municipalities?). So Arnhem residents find themselves with their rubbish in a legal no-man's land. Privacy First regrets that the Council of State did not want to "fix" this (as the court did earlier) and now sends Mr Jonker off with a formalistic bullshit. Moreover, incomprehensible is the State Council's assessment that the rubbish pass would have "no legal effect". Given the undeniable infringement of the right to privacy by the rubbish pass, this position of the Council of State is simply untenable.
As a result, Mr Jonker is back to square one after two years of litigation. Through media sources, Privacy First understood that the State Council spokesperson had referred the case to the civil court. The problem, however, is that in recent years the civil court has actually referred these kinds of cases to the administrative court. This threatens double inadmissibility. Moreover, civil litigation usually requires expensive lawyers and a long, complex court process. Privacy First will therefore advise Mr Jonker to pursue this case at the European Court of Human Rights in Strasbourg for violation of Articles 6, 8 and 13 ECHR (right to access to justice and an effective remedy, as well as violation of the right to privacy). Capable lawyers who would like to assist Mr Jonker in this on a pro bono basis can apply to Privacy First from now on.
City council's move
Privacy First also hopes that the Arnhem city council will soon put its house in order. After all, as long as the Arnhem waste card is not based on a sound decision surrounded by privacy safeguards or replaced by a privacy-friendly alternative, Arnhemmers can hardly be blamed if they leave their waste card at home from now on and dump their rubbish bag next to the container.
Click HERE For the full ruling of the Council of State dated 26 April last.
Below is a summary of media so far, including comments Privacy First:
Before and after the court hearing:
http://www.radio1.nl/item/347552 (2 parts)
http://www.bnr.nl/?service=player&type=archief&fragment=20160310071750300 (preview Brenno de Winter)