Use of police cameras not permitted for checking kilometer records | Deloitte

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Use of police cameras not permitted for checking kilometer records

The Supreme Court argues there is no sufficiently precise legal ground that permits the Tax Administration to use police cameras, the latter thus constitutes an unlawful violation of privacy.

7 March 2017

Dutch version

Private use of company cars

If company cars are used for private purposes as well, employers must add the benefit ensuing from such use to the employee’s wages. This notional addition can be omitted if it can be demonstrated that the respective car was not used for private purposes for more than 500 kilometers on an annual basis. Although the principle of freedom of evidence applies in this respect, practice has taught us the Tax Administration only accepts conclusive kilometer records.


Checking kilometer records

In recent years, the Tax Administration often used data provided by police cameras to check taxpayers’ kilometer records. Initially, these data were made available to the Tax Administration under an agreement concluded with the police on January 26, 2011. This agreement stipulated that the police made available data recorded through so-called ANPR cameras (Automatic Number Plate Recognition) to the Tax Administration, which the latter used to extract and store information relevant for tax purposes. The other recordings were removed. On October 28, 2014 a new agreement was concluded which qualifies the Tax Administration as a direct co-user of the ANPR cameras installed on public roads. Under the new agreement, too, only observations relevant for tax purposes are being kept.


Opinion AG

Some time ago, we informed you about three cases pending before the Dutch Supreme Court that dealt with the question whether the use of police cameras for tax purposes is permitted. Advocate General Niessen concluded that this was no longer permitted under the agreement concluded on October 28, 2014, since the Tax Administration lacks the statutory competence to independently use data from APNR cameras to check data. The AG argued that particularly the systematic recording and keeping of such data constitutes an unlawful violation of the right to privacy as referred to in article 8 of the European Convention for the Human Rights (ECHR).


Supreme Court

Recently the Supreme Court confirmed the Advocate General’s opinion. The highest court of the Netherlands even goes one step further and ruled that the use of camera images that were provided to the Tax Administration under the old agreement (of January 26, 2011) is not permitted either. Systematic collecting, recording, processing and keeping of ANPR data for years on end constitutes a violation of taxpayers’ private lives, since these data can be traced back to individual persons and serve to analyze vehicle movements that took place in a year.

Such a violation is only justified if a sufficiently precise statutory basis is available that informs citizens which data is recorded, for which purposes it can be used, and what conditions are attached to such use. However, the Supreme Court argues that such a basis is lacking. The conclusion is that the Tax Administration is not allowed to use data from ANPR cameras to check kilometer records submitted by taxpayers.


Source:

  • Supreme Court, February 24, 2017, 15/02068, ECLI:NL:HR:2017:286
  • Supreme Court, February 24, 2017, 15/02069, ECLI:NL:HR:2017:287
  • Supreme Court, February 24, 2017, 15/05826, ECLI:NL:HR:2017:288
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