The Minister of Economic Affairs and Climate (EZK) is not following an important advice of the Autoriteit Persoonsgegevens (AP). The minister wants the Chamber of Commerce (CoC) to publish from now on a list of people with a so-called management ban, for example because of bankruptcy fraud. But this making public of criminal personal data is neither necessary nor proportionate. And it does have long-term, very harmful consequences for the people put on the list. The AP therefore calls on the House of Representatives to stop the publication of board bans.
The AP advised the minister in February 2022 not to make the list public (1). The advice deals with an amendment to the Commercial Register Decree. According to that amendment, people who are banned from management will appear on a public list in the Trade Register (managed by the Chamber of Commerce) for a maximum of 5 years.
Since 2016, people who have committed bankruptcy fraud can receive such a ban. They are then temporarily banned from operating a business.
'Of course people who commit fraud must be dealt with,' says AP chairman Aleid Wolfsen. 'And they will be: they will be sentenced to prison, for example. And are not allowed to run a company for the time being.'
'But with this proposal, those people are actually getting an additional punishment: they are being pilloried to death,' Wolfsen said.
'These are lists of name and surname, date of birth, place of birth and exactly what crime people have committed. The legislature doesn't do that with other offenses of the law either.'
After a maximum of 5 years, people are erased from the public list again, giving them another chance. But the AP notes that the information does not necessarily disappear then.
Wolfsen: "In the digital age, there is a very real chance that this list will remain online somewhere forever. A copy is easily made. And so a misstep can haunt someone for life. That would mean: once on a blacklist, always on a blacklist.'
Making that list public is also unnecessary in this regard to prevent people with board bans from becoming directors again anyway, the AP says.
New directors must always register with the CoC. If someone registers who has a board ban, the Chamber of Commerce can immediately see that on the list. And then refuse that person as a director.
In addition, making that list public is also not necessary because fairness in trade requires it. And not proportionate in relation to its intended purpose.
In a January 2023 memo, the Minister of Economic Affairs indicated that she was not following the AP's advice (2).
'Inadmissible,' Wolfsen believes. 'There is nothing to criticize about the goal in itself, that is even very understandable. But the elaboration of the law violates the fundamental rights of everyone. We have therefore urged the Lower House by letter not to agree to this (3).'
https://autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/advies_wijziging_handelsregisterbesluit_2021_bestuursverbod_en_rangschikken_op_naam.pdf
https://www.tweedekamer.nl/kamerstukken/detail?id=2023D00249&did=2023D00249
https://autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/brief_ap_bestuursverboden_in_handelsregister.pdf
