Contrary to an earlier ruling in 2015, the Tax and Customs Administration is not permitted to use images from ANPR cameras to verify mileage records regarding the private use of company cars . There is no adequate legal basis for using these images. The Supreme Court ruled this in three cases. In a response, the Tax and Customs Administration indicated that it will now consider other options for monitoring the private use of company cars.
This is what the case looks like
Three taxpayers drive a company car. They have stated that they do not drive this car for private purposes and maintain an annual mileage log which they submit to the Tax and Customs Administration, showing that no more than 500 kilometers are driven privately per year in the company car. The Tax and Customs Administration does not accept this data because these cars were spotted at locations that did not correspond with the data in the mileage log.
Automatic license plate recognition
The Tax Authorities established this based on photos taken by KLPD highway cameras equipped with automatic license plate recognition.
Supreme Court judgment
The Supreme Court ruled that the private lives of the individuals involved are affected by the way in which the data obtained with ANPR cameras is collected and used. This is not simply a matter of one or a few observations in public spaces, but rather the systematic collection, recording, processing, and long-term storage of data on vehicle movements in various locations in the Netherlands. A sufficiently precise legal basis – which is required in such a case under Article 8 of the ECHR – is lacking.
Different opinion than the Advocate General
Contrary to the conclusion of Advocate General Niessen ( ECLI:NL:PHR:2016:883 and ECLI:NL:PHR:2016:884 ), according to the Supreme Court, this also applies if it must be assumed that the Tax and Customs Administration obtained the ANPR data from the KLPD on the basis of Article 55 of the General Tax Act (AWR), and did not collect it independently. According to the Supreme Court, Article 55 AWR also does not provide a sufficiently precise legal basis for the collection, recording, retention, and use of the ANPR data.
The additional assessments for payroll taxes imposed on taxpayers may not be based on ANPR data.
Three statements
Supreme Court judgment, 24 February 2017, ECLI:NL:HR:2017:288
Supreme Court judgment, 24 February 2017, ECLI:NL:HR:2017:287
Supreme Court judgment, 24 February 2017, ECLI:NL:HR:2017:286
