The full text of the judgment in the Judykatura database shows that a defective intention to impose a sanction may itself constitute an unlawful preparatory act. The Dutch Court held that the data protection authority failed to exercise the required care when it excluded legitimate interests without completing the full assessment under Article 6(1)(f) GDPR.

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The ruling nevertheless distinguishes the finding of unlawfulness and causation from the duty to prove the precise amount of loss.

What was the case about?

The case concerned the operator of a video platform for amateur football. The platform recorded and broadcast matches, enabled users to replay footage, analyse it, share excerpts and use an analytical tool for coaches and analysts.

The Dutch Data Protection Authority imposed an administrative fine of EUR 575,000 on the company. It took the view that the controller’s purely economic interest could not be a legitimate interest because such an interest had to be recognised in legislation or another source of law. The decision was subsequently annulled by the Court of Midden-Nederland, and that ruling was confirmed by the Administrative Jurisdiction Division of the Council of State, the Netherlands’ highest administrative court.

In the present proceedings, the company sought EUR 25,000 in compensation. It argued that, after the authority announced its intention to impose a sanction, it lost sponsors, failed to attract new clubs and had to scale down its operations.

Can an authority’s intention be unlawful?

The judgment of the Court of Midden-Nederland of 28 September 2026 makes clear that the investigation itself, the investigative methodology and the preparation of the fine report were not found unlawful in this case. The court reached a different conclusion, however, regarding the intention to impose an administrative fine or a periodic penalty payment.

The court held that the intention was a preparatory act for a decision. Its lawfulness depended on whether the authority had exercised the care required in view of the identifiable interests of the party concerned.

In the court’s assessment, the authority had not exercised that care. It based its intention on an incorrect interpretation of the concept of legitimate interests and consequently failed to carry out either the necessity assessment or the balancing of interests. The court stressed that the European case law existing at the time gave no basis for the authority’s interpretation. The Court of Justice of the European Union had repeatedly confirmed that Member States may not exclude reliance on legitimate interests in advance or categorically for particular categories of processing.

The court held that the authority should have interpreted that concept in accordance with European case law, rather than in a manner lacking openness and flexibility. The consequence of the erroneous interpretation was that the authority failed to carry out a full assessment of the platform’s activities.

Was the loss caused by the intention?

The court found no causal link between the claimed loss and the later annulled decision imposing the fine. According to its findings, the alleged loss had arisen earlier, following the fine report and the announced intention to adopt a decision.

The court assessed differently the relationship between the loss and the unlawful intention. It compared the actual situation with the hypothetical scenario in which the authority had, from the outset, formulated a lawful intention and completed all three stages of the legitimate-interests assessment.

The court held that, in that scenario, a sanction might still have been imposed, but the platform could have mitigated its loss by adapting its business model. Examples of possible conditions included limiting the activities to a particular region, broadcasting with a delay so that footage could be adjusted, or raising the minimum age to 18.

In this context, the court observed that the alternatives proposed by the authority, such as publishing articles or filming by coaches, differed materially from the product envisaged by the company and were not realistic alternatives. By contrast, a position entirely denying the existence of legitimate interests left no prospect of continuing the activity, even in an adapted form.

The court also found that informing sponsors about the intention was understandable and that their withdrawal, as well as the failure to recruit further clubs, could be regarded as a normal consequence of that intention. The authority should have foreseen that a position excluding legitimate interests would prompt the company to take measures potentially resulting in loss.

Why was compensation nevertheless refused?

The judgment has an important practical limitation. The court confirmed the unlawfulness of the preparatory act, the causal link and the attribution of the alleged loss to that act, but dismissed the compensation claim.

The reason was not the absence of loss in principle, but the lack of proof of its amount. The company submitted a memorandum estimating the loss and a unilateral statement from its former chief executive officer and the former commercial and general director of the Dutch football association. It did not, however, submit draft sponsorship agreements, advertising agreements or other documents confirming specific arrangements with sponsors.

The court found that this did not permit it to determine the specific loss suffered by the company as a result of the sponsors’ withdrawal. The same deficiency affected the assertions concerning lost revenue from new clubs not joining the platform.

What follows from the judgment?

The judgment distinguishes three levels of liability in damages. First, an authority may be liable not only for an unlawful decision but also for an unlawful intention constituting a preparatory act. Second, in cases concerning Article 6(1)(f) GDPR, an authority may not stop at an abstract exclusion of legitimate interests; it must assess necessity and balance the interests involved. Third, positive findings on unlawfulness and causation do not relieve the injured party of the obligation to prove the specific loss suffered.

This material was prepared partly with the use of a general-purpose AI model and, despite due care, may contain errors. The information provided does not constitute legal advice — it reflects solely the Author's view.