BKR Proportionality Test: What You Need to Know
The BKR proportionality test is an important instrument within the Dutch credit registration system to assess whether a BKR registration is proportionate to the borrower’s situation. This test plays a crucial role in ensuring that lenders and the Bureau Krediet Registratie (BKR) handle credit data in a fair and just manner. In this article, we explain in detail what the BKR proportionality test entails, how it is applied, and which legal options you have if you disagree with a BKR registration.
The BKR proportionality test is an assessment framework used to determine whether a BKR registration is proportionate in relation to the actual credit and repayment situation of a consumer. Simply put, it concerns whether the registration is appropriate and not unnecessarily burdensome for the borrower. The test looks, for example, at the nature of the debt, the amount, the duration, and the extent of payment arrears.
A registration that is disproportionate can lead to unjust negative consequences for the borrower, such as the unnecessary refusal of new credit or higher interest rates. It is therefore important that lenders carefully assess whether a registration is justified. In practice, this may mean that a lender does not register every arrear automatically, but first investigates whether the situation is serious enough to justify a negative registration.
The proportionality test also plays a role in assessing requests to remove a BKR registration, for example when the debt has since been repaid. In such cases it can be considered whether maintaining the registration is still proportionate. More information about removing a BKR registration after repayment can be found on our page Removing a BKR registration after repayment.
Legal grounds for the BKR proportionality test
The BKR proportionality test finds its legal basis in various laws and regulations, including the General Data Protection Regulation (Algemene verordening gegevensbescherming, AVG), the Financial Supervision Act (Wet op het financieel toezicht, Wft), and the Dutch Civil Code (Burgerlijk Wetboek, BW). Under the GDPR/AVG, personal data, including credit data, must be processed lawfully, fairly and transparently. This means, among other things, that only relevant and necessary data may be registered and that they may not be kept longer than necessary.
In addition, the Wft obliges lenders to act with due care when granting credit and registering payment arrears. The proportionality test is part of that duty of care. Lenders must investigate whether a registration is proportionate and whether there are alternatives before they implement a negative registration.
Finally, the Dutch Civil Code regulates the contractual relationship between lender and borrower, including rights and obligations regarding payment and default. If a registration is found to be disproportionate, this may amount to an unlawful act (onrechtmatige daad under Dutch law) or a violation of privacy rights, enabling the consumer to take legal action, for example through proceedings via rechtspraak.nl.
Practical application of the BKR proportionality test
In practice, the proportionality test means that lenders do not automatically register every payment arrear with the BKR. For example, a small, one-off payment arrear of a few days can in many cases be considered disproportionate to register, especially if the arrear is remedied quickly. Conversely, a prolonged arrear of several months or years may be justified for a negative registration.
Suppose a consumer has taken out a loan of €5,000 and has a payment arrear of €100 for one month. If this arrear is made up within a short time, it may be disproportionate to register this situation. By contrast, it is proportionate to place a registration if there is an arrear of more than three months with no communication or payment arrangement in place.
Moreover, the proportionality test also considers the consequences of the registration. If the registration leads to unreasonable obstacles in obtaining necessary credit, this may also be a reason to reconsider registration. In such situations it is advisable to consult a legal expert. For guidance on unjust BKR registrations, you can consult our step-by-step plan for unjustified BKR registration.
The role of the BKR proportionality test in removing registrations
One of the most common questions about BKR registrations concerns their removal after repayment of the debt. The BKR proportionality test is very important here. Not every registration has to remain in place permanently. The test helps determine whether maintaining the registration is still proportionate, for example after full repayment of the debt.
Under BKR rules, negative registrations usually remain visible for five years after the debt has been repaid. However, in exceptional cases maintaining that registration may be disproportionate, for example if the registration is incorrect or incomplete, or if the consequences for the consumer are excessive. In such situations, a request for removal may be successful.
The process for removing a BKR registration is complex and often requires legal expertise. You can find more information about the options and procedures on our page Removing a BKR registration after repayment. It is advisable to act in good time if you believe that a registration is unjustified or remains in place disproportionately.
Examples of disproportionate BKR registrations
There are various situations in which a BKR registration can be considered disproportionate. One example is a registration of a payment arrear that lasted less than 30 days and where the consumer paid immediately, without the lender having made contact or given a warning.
Another example concerns situations where a registration stems from an administrative error or incorrect information. For example, where a lender submitted the wrong code, or where a debt was double-registered. In such cases, the proportionality test carries considerable weight and removal of the registration can be demanded.
A registration can also be disproportionate when the consumer’s financial situation has improved to such an extent that the negative consequences of the registration are out of proportion. Consider a situation where someone had an arrear due to a temporary financial setback, but now fully meets all payment obligations and no longer poses a risk of default.
Would you like to know more about the different BKR codes and what they mean? Then see our explainer page BKR codes explained.
How to deal with a disproportionate BKR registration?
If you suspect that a BKR registration is disproportionate, it is important first to contact the lender and the BKR yourself. You can submit a request to correct or remove the registration. This request must be properly substantiated with relevant documents, such as proof of payment and correspondence.
If this does not lead to a solution, you may consider taking legal action. This can be done, for example, by filing a complaint with the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, AP), or through civil proceedings before the court. Arslan & Arslan Advocaten can assist you with this and advise you on the best strategy to protect your rights.
We recommend acting quickly, as allowing a disproportionate registration to stand for longer unnecessarily harms your creditworthiness. For an overview of legal routes to remove a BKR registration, consult our comprehensive guide at Removing a registration: legal routes that work.
The impact of disproportionate BKR registrations on your financial situation
A disproportionate BKR registration can have serious consequences for your financial situation. It can lead to refusal of loans, mortgages, or even mobility products such as a mobile phone contract. Lenders use BKR data to assess the risk of lending. An unjust negative registration can therefore significantly reduce your chances of obtaining credit.
Moreover, disproportionate registrations can lead to higher interest rates or less favourable terms, meaning you ultimately pay more for credit. This can create a vicious circle in which it becomes difficult to regain financial health.
That is why it is essential that the BKR proportionality test is applied strictly and that consumers monitor their own credit registrations. You can easily check your BKR data via BKR.nl to identify any irregularities in time and challenge them.
The future of the BKR proportionality test
Developments around the BKR proportionality test continue. Due to increased attention to consumer protection and privacy rules, the test is becoming ever more important and is being applied more strictly. New European directives and national legislation may lead to tighter rules around credit registrations and the use of personal data.
In addition, public pressure on lenders to provide responsible lending and to prevent abuse of the system is growing. This means that lenders must increasingly substantiate why they implement certain registrations and that disproportionate registrations will occur less frequently.
For consumers, it is important to stay informed about these developments and to seek legal advice in good time if they doubt the lawfulness of their BKR registrations. Arslan & Arslan Advocaten closely follow these changes in order to provide you with appropriate advice.
Frequently asked questions
What is the purpose of the BKR proportionality test?
The purpose of the BKR proportionality test is to ensure that BKR registrations are proportionate to the consumer’s situation, so that unnecessary or unfair negative registrations are prevented that could unjustly harm creditworthiness.
Can I have a disproportionate BKR registration removed?
Yes. If you can demonstrate that a registration is disproportionate, for example due to quick repayment or administrative errors, you can submit a request for removal to the lender and the BKR, if necessary supported by legal action.
How can Arslan & Arslan Advocaten help me with BKR issues?
Arslan & Arslan Advocaten provide expert legal support in assessing and challenging BKR registrations, advise on your rights and options, and guide you through procedures to correct or remove disproportionate registrations.
Read also
- BKR registration and mortgage – is it still possible?
- Removing a registration: legal routes that work
- BKR recovery code: when and how do you get it?
Need help?
Do you have questions about the BKR proportionality test or do you doubt the lawfulness of your BKR registration? At Arslan & Arslan Advocaten we are ready to help you. Our experienced lawyers offer you personal and professional support. Contact us for a free initial consultation and discover what we can do for you.
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