Minister Adriaansens (EZK) answers questions on the progress letter Data Vision Trade Register. The Standing Committee on Digital Affairs asked the questions.
Date January 17, 2023
Subject Answers to Parliamentary questions on progress letter Data Vision Trade Register
Dear Chairman,
I hereby send your Chamber the answers to the questions of the Standing Committee on Digital Affairs on the letter regarding Progress on the Data Vision Trade Register (Parliamentary Paper 32761, no. 240).
M.A.M. Adriaansens
Minister of Economic Affairs and Climate
Questions and comments from members of the VVD Group.
The members of the VVD Group ask what options there are for possibly introducing broader curtailment of disclosure of (address) data in the future and what criteria will be used.
The options available for customization in the public availability of data are primarily related to the room for maneuver that exists within the European frameworks formed by various directives and regulations. Compliance with European law obligations is therefore a first criterion.
For limited liability companies (NV and BV), almost all information that is now available through the Commercial Register (HR), except for telephone numbers and email addresses, is also mandatory public. For sole proprietorships, on the contrary, there are no obligations at all based on legal form in European rules. To the extent that there are transparency obligations, they are related to certain activities, such as retail, for example, and are aimed at transparency by the entrepreneur himself and not through the HR. The partnership, general partnership (vof) and limited partnership (cv), like the sole proprietorship, are currently only subject to limited European law transparency obligations. Unlike for sole proprietorships, the Data Vision HR does not propose an adjustment of the information obligations because the legal framework for these legal forms is being modernized. In order not to burden entrepreneurs with constantly changing rules, the new regulation is awaited. The members of the VVD Group ask when it will be sent to the Chamber. The bills related to the modernization of partnerships have been republished for Internet consultation after revision, on October 10, 2022, with a reaction period of four months. Based on this, it is not yet easy to predict when submission of these proposals can be expected.
When restricting the degree of accessibility of certain data, further consideration is given to the advantages and disadvantages of such a restriction. Shielding provides better privacy protection for business owners registered in the HR. However, users of this data, which together constitute a much larger group, experience disadvantages the of shielding. For example, with foreclosure, it is no longer possible to see where a business is actually located. Insight into the place of establishment, can help prevent fraud involving non-existent or volatile businesses. Therefore, weighing the total of societal disadvantages and advantages is a second criterion.
Members of the VVD Group request an explanation of the Chamber of Commerce's ex officio foreclosure of physical addresses of sole proprietorships without replacement mailing addresses.
This foreclosure without a replacement mailing address is only one of two options for a foreclosure regime. This option is in line with motions that essentially request to provide foreclosure of (parts of) address information in the HR without requiring entrepreneurs to take action themselves. However, this alternative has major implications for information management and administrative burdens. Therefore, a second option has also been developed in which sole proprietors can take the initiative to register a postal address themselves, and then have their physical address shielded without further conditions. This option also meets motions of your Chamber and has much less impact on the information management of the government and other users of Trade Register information.
The validation of the policy proposal explicitly asked about both of these options. The responses show that a large majority of respondents prefer the foreclosure where a mailing address is compulsorily registered and revealed. This therefore also implies that foreclosure can only be done at the request of the business owner. The accessibility of businesses for official mail is spontaneously named as a relevant factor in this regard.
Questions and comments from members of the D66 Group
The members of the D66 Group ask whether the minister is preparing a proposal to amend the Trade Register Act to reduce data trading with data from the trade register, what the timeline would be for this and what the enforcement of a proposed ban would look like.
Amendments to the Trade Register Act 2007 and the Trade Register Decree 2008 are indeed being prepared in connection with the implementation of the proposals from the Data Vision, including a ban on (forms of) commercial use of trade register data. Preferably, this will also be accompanied by a possibility to refuse (further) supply of data when unauthorized use is made. You will receive the timeline for this amendment, which includes more topics than the aforementioned ban, via my letter Progress Datavisie Handelsregister before the end of the year.
The method of enforcement is also still under study. Public enforcement is primarily the responsibility of the Autoriteit Persoonsgegevens, but the capacity available for this is limited and the target group to be protected is very large. Private-law enforcement by the Chamber of Commerce (KVK) is conceivable, which would require contractually agreed terms of use, but the possibility of this will be influenced by the outcome of a court case that should provide answers about the usability of the KVK's database right.
Members of the D66 Group ask about costs of and alternatives to using a mailing address when foreclosing on a company's physical address.
A mailbox, usable for this purpose, can be rented from as little as €10 per month. A digital mailbox can offer a useful and possibly cheaper alternative. Whether a link with digital government infrastructure such as MijnOverheid is appropriate, and when such a facility could be offered, are questions for my counterpart in the Ministry of the Interior and Kingdom Relations. I should note, however, that as part of the debate on the Electronic Administrative Modernization Act, your House of Representatives recently adopted an amendment by member Leijten (Parliamentary Paper 35261, no. 16) which subjects electronic message traffic from the government to entrepreneurs and legal entities to the same requirements that apply to natural persons. This implies that (also) in the case of businesses and legal persons, the starting point cannot be that they must be accessible via digital means.
The members of the D66 Group request a further explanation of the minister's intention to make imposed board bans public through a register, contrary to the advice of the Autoriteit Persoonsgegevens.
I am enclosing the opinion of the Autoriteit Persoonsgegevens as an attachment to this letter.
The public availability of management prohibitions fulfills an important function for the defensibility of citizens and companies against fraud and abuse of companies and legal entities. A person on whom a management ban has been imposed can no longer register in the Trade Register as a formal director of a company or legal entity. In practice, it is still possible for such persons to act as employees of a company. This in itself is not prohibited, but if in this way the person actually still manages the company or legal entity, which is then often formally managed by a so-called cat-catcher, this entails a risk for counterparties. By making the information on imposed management bans public, this way of evading the ban is countered.
Members of the D66 Group ask if participation in a Synthetron session is still possible.
The Synthetron sessions took place on September 6 and 8 of this year, in accordance with the schedule indicated in the Chamber letter. The invitation to members of your Chamber to participate in these sessions as observers was used sparingly. Attached to this letter you will find an infographic summarizing the results of the validation of the policy proposal Data Vision. The full report has been published on the Internet consultation website.
Questions from members of the SP Group.
The members of the SP Group questioningly mention a study of the desirability of foreclosure options regarding the physical address for legal forms other than sole proprietorships and NV/BV and ask when the results are expected.
The letter and policy proposal make no mention of such a study. On the contrary, for the remaining legal forms, it states why foreclosure of addresses is not appropriate at this time.
Members of the SP Group ask about the timeline for restricting commercial use of trade register data.
The amendment of regulations limiting the commercial use of HR data will be considered in conjunction with other necessary amendments to the Trade Register Act 2007 and the Trade Register Decree 2008 and associated implementing measures that relate to workflows and ICT facilities at the Chamber of Commerce, among other things. I will inform your Chamber about this before the end of this year with the letter Progress Datavision Commercial Register.
Members of the SP Group ask why the Chamber of Commerce cannot decide for itself what data it provides, especially in light of the enhanced gatekeeper function. Why is direct access necessary and for what purpose? Can it be indicated whether the criterion for this is always that as few people as possible should have access to privacy-sensitive information? If so, how is this ensured? If no, why not?
The KVK, as manager of the basic Trade Register, cannot arbitrarily decide whether or not to provide data. Legal rights to this information exist for public and private buyers of data, with the degree of access being differentiated.
Much of the information in the Trade Register is public. This does justice to the interests that customers have in this information, which plays a role in the functioning of the government, in legal certainty in business dealings and in customer due diligence, among other things. In many cases, customers are legally obliged to obtain and use this information, for example to prevent financial services from being exploited in the context of money laundering or terrorist financing. Refusal by the Chamber of Commerce to provide information must then also be based on a legal basis, such as that created for protection in the situation where a registered entrepreneur is, or could become, a victim of threats.
The legal rules, both for providing and refusing to provide information, are assessed in part on the basis of their effect on the privacy of natural persons registered in the HR. This is reflected in the considerations in memorandums and notes of explanation to laws and lower regulations and often in privacy impact assessments (PIAs) specifically aimed at certain data products. These not only consider the content of the information, but also the most appropriate form of provision.
The greatest freedom of use exists with information that is available in the form of open data. Even in the case of information from the Trade Register, arguments have been made in the past for making it available in the form of open data. Obviously, this can never be the case with personal data, which may not be processed without an appropriate basis. The demand for a basis is incompatible with the principles of open data. Because personal data plays a central role in the Trade Register, it is virtually impossible to make HR data, with the exception of statistical and highly aggregated data, available as open data. The information in the Trade Register is largely public, but the form of provision is sometimes limited, to protect privacy. For example, the HR may only be searched for natural persons by a small and restrictively named group of users. For all other users, the registered company is the key. Thus, while information on natural persons can be found, it cannot be searched for.
This is also one of the reasons why the re-use of information from the Trade Register must be subject to conditions. After all, it is undesirable for customers to be able to compile a copy of the Trade Register from extracts requested and still search for natural persons.
The gatekeeper function of the Chamber of Commerce is primarily manifested in registrations and is fulfilled by checking the data and documents supplied and the identity of the entrepreneur. This process also includes the blocking of registrations by persons who are banned from management.
