Neues aus den Niederlanden
Verfasst: Di 24. Apr 2012, 12:23
Sehr interessanter Brief (englisch)
http://www.strainhunters.com/site/index ... n-on-c-r12
Letztens hat es ja wieder einen Beitrag seitens der ARD gegeben, dass ab 2013 die coffeeshops unzugänglich für ausländer gemacht würden, dieser text sagt aber etwas anderes.
http://www.strainhunters.com/site/index ... n-on-c-r12
Letztens hat es ja wieder einen Beitrag seitens der ARD gegeben, dass ab 2013 die coffeeshops unzugänglich für ausländer gemacht würden, dieser text sagt aber etwas anderes.
To The Minister of Security and Justice DATE 18 April 2012
OUR REF. z2012-00160
CONTACT PERSON
YOUR LETTER OF 21 February 2012
YOUR REFERENCE 227645
SUBJECT Request for advice on the Instruction
Drugs Law of the Public Prosecutor regarding
the verifiable membership list of coffee shops
Dear Madam, Dear Sir,
On 21 February 2012, on behalf of the fixed commission for Security and Justice, you have requested the College for Protection of Personal Data (CBP) to give an advice on “the privacy aspects related to the introduction of the weed pass”. More precisely, you request the CBP to give an advice on the Instruction Drugs Law of the Public Prosecutor[1] (hereafter ‘the instruction’) in relation to the standards from the Law on the protection of personal data (Wbp). From your letter the CBP concludes that the advice should be limited to the data processing related to the coffee shops’ verifiable membership list[2]. This membership list is an elaboration of the “private club criterion”.
I hereby meet your request.
Background
Since 1 January 2012, the tolerance policy for coffee shops has been tightened by limiting the access to coffee shops to residents of The Netherlands of eighteen years or older and by making membership mandatory. With the objective to make coffee shops more controllable, coffee shops will become private clubs. Therefore, since 1 January 2012 the criteria included in the instruction for the evaluation of the question if legal action needs to be taken against a coffee shop (which is a legally forbidden situation), have been completed with the “private club and residents criteria” (B and R-criterion). The tightened tolerance policy is valid from 1 May 2012 on for coffee shops in the provinces of Limburg, Northern Brabant and Zeeland. From 1 January 2013 on, the additional criteria will be applied in the whole of The Netherlands.[3]
The B-criterion implies that access can only be granted to and there may be sold only to members of a coffee shop, where it is stipulated that the coffee shop can only distribute 2000 memberships in one calendar year and that it has to document this under the form of a verifiable membership list. The membership is granted by a club pass (free of form) by the coffee shop owner and is obtained by showing a valid identity and some proof that the applicant is a resident of The Netherlands (the I-criterion). Access to the coffee shop can only be obtained based on this membership and by showing a valid identification. The responsibility for this transformation of the coffee shop to a private club, including maintaining a correct membership database, lies totally with the coffee shop owners.[4]
From this it follows that during the membership, the coffee shop owner needs to record some personal data of the members in a members list, being:
- Name;
- Date of birth;
- Postal code or residence;
- Start date of the membership;
- Possibly a membership limit date.[5]
The membership list must be produced in such a way that it can be looked into or physically handed over to the inspectors during the government’s periodical inspections on the respect for the tolerance criteria.[6]
Evaluation CBP
In what follows, the CBP will discuss the aspects of your request regarding the Wbp-standards.
Necessity, proportionality and subsidiarity of the verifiable membership list
The instruction needs to comply with article 10 of the Constitution, article 8 of the European Treaty for the protection of human rights and the fundamental freedoms (EVRM) and with Regulation 95/46/EG of the European Parliament and the Council of 24 October 1995, of which the Wbp is an elaboration.
Article 10, first paragraph, of the Constitution determines that everyone has the right to respect for one’s privacy, except in case of limitations that can also be determined by law.
Pursuant to article 8 of the EVRM, no interference by a public authority is authorized in the execution of the right to respect for one’s privacy than what has been foreseen by law and what is necessary in a democratic community in the interest of national security, public security or the country’s economic well-being, the prevention of riots and punishable acts, the protection of health or morality, or for the protection of others’ rights and freedoms.
In the application of the limitation clauses, included in the aforementioned fundamental rights, the proportionality and subsidiarity principles are very important.[7] The proportionality principle states that the violations of the interests of the person involved in the processing of personal data cannot be disproportionate in relation to the objective of the processing.[8] Due to the subsidiarity principle, it should not be possible to accomplish the objective for which the personal data are being processed in another way that could be less detrimental for the person involved in the processing of personal data.[9]
The principles of proportionality and subsidiarity are also central in the Wbp.[10] As such, article 8 of the Wbp, containing the grounds that justify processing of data, states that in each processing these principles have to be complied with.[11]
In your cover letter with the instruction it is noted that coffee shops become private clubs in order to make the coffee shops more controllable. But this does not provide sufficient ground for the interference in the privacy of the persons involved (due to the envisaged processing of their personal data) to be necessary in the interest of the objectives listed in article 8 of the EVRM.
From your cover letter it also does not become clear if it has been evaluated if the processing of personal data complies with the proportionality and subsidiarity principles. It is not clear if other methods that would be less impacting for the persons involved, have been investigated in order to reach the mentioned objective to make coffee shops more controllable.
In this respect, the CBP specifically points out the following. The verifiable membership list does contain personal data that are not unusual for a private club to process with the objective to maintain a client database, but in this case the character of the information is strongly influenced by the context in which the data will be used. The consequences of the processing can be big for the coffee shop visitor in question, taking into account possible consequences in the private sphere. This is even more valid if the compliance with the tolerance criteria will be inspected and this verifiable membership list has to be handed over physically to the inspectors.[12]
Thus, the CBP advices you to further explain the necessity, proportionality and subsidiarity of this verifiable membership list.
Local autonomy
The instruction mentions that municipalities, next to the (BI)AHOJG criteria[13], in coordination with the partners in the local triangle, can formulate additional regulations with which the tolerated coffee shops have to comply. These regulations are part of the local coffee shop policy and can be included in the exploitation license or a tolerance declaration.[14] The CBP has not included these local conditions in the current advice (and cannot include them).
Status of the possible reporting
The CBP wishes to stress the following.[15] In principle, a complete or partial automated processing of personal data, destined for the realization of an objective or of several connected objectives, needs to be reported to the CBP (article 27 of the Wbp). The goal of the reporting of a data processing is to improve the transparence of the data processing such that the persons involved can execute their rights based on the Wbp. Inclusion in the public reports registry thus does not mean that the CBP declares the processing to be legal.
Moreover, the data processing of the verifiable membership list, as prescribed in the current instruction, is exempt based on article 40 of the Wbp Exemption Decree. Thus, in principle, the coffee shop holders do not have to report if the processing only contains the data included in the instruction.
Conclusion
With regard to your explanation on the instruction, the CBP advices you to pay due attention to the above paragraph ‘Necessity, proportionality and subsidiarity of the verifiable membership list’.
Sincerely,
The College for the Protection of Personal Data,
For the College,
Mr. W.B.M. Tomesen
College Member
[1] Instruction Drugs Law (2011A021), Gov. Gazette n° 22936 of 20 December 2011, effective: 1 January 2012. The instruction Drugs Law 2011A013 has become void as of 1 January, inclusive.
[2] The responsible official has this confirmed by telephone as well on 23 February 2012.
[3] See: the instruction, pp. and 5. Also see: the letter dated 17 February 2012 of the Minister of Security and Justice, p. 1. Moreover, the instruction still mentions the date of 1 January 2012.
[4] See: the letter dated 17 February 2012 of the Minister of Security and Justice, p. 1-2.
[5] See: the letter dated 17 February 2012 of the Minister of Security and Justice, p. 2.
[6] See: the letter dated 17 February 2012 of the Minister of Security and Justice, p. 2.
[7] Parliament pieces II 1997/98, 25892 n° 3, p.8
[8] Idem
[9] Idem, pp.8-9
[10] Idem, p.9
[11] Idem, p.80
[12] See: letter dated 17 February 2012 of the Minister of Security and Justice, p.1-2
[13] See: the instruction, pp.5-6; (BI)AHOJG criteria: Private club, Residents, no Posters, no Hard drugs, no Nuisance, no selling to Juveniles, no selling of large quantities
[14] See: the instruction, p.3
[15] In response to the drugs debate of the House of Representatives on 28 March 2012, Acts II 2011/12, n° 69, item 8, p.47
