The Dutch Court of Appeal (Trade and Industry Appeals Tribunal, CBb) overturned two judgments of the Rotterdam district court. It ruled that the Dutch competition authority (ACM) is allowed to use data from wiretaps collected by the Public Prosecution Service (Openbaar Ministerie) in the context of a criminal law investigation. No careful consideration or motivation from the side of the public prosecutor is required to provide the wiretaps to ACM.
ACM does not have the right to place wiretaps. Other authorities like the intelligence and investigation service of the Ministry of Housing, Spatial Planning and Environment (VROM-IOD) and the National Police Internal Investigations Department (Rijksrecherche) do have this right. In both cases, these authorities provided ACM with tap reports since they suspected that competition law was being breached by the companies they were listening in on. The Public Prosecution Service consented. Subsequently, ACM used these wiretap reports to impose fines on several companies for breach of competition law.
The Rotterdam district court had annulled the fines. It concluded that the public prosecutor had failed to adequately substantiate why these wiretaps were provided to ACM in the first place.
The Court of Appeal disagreed and concluded as follows:
- The wiretaps provided to ACM indeed – as earlier concluded by the district court – qualify as criminal-law information;
- There is no legal ground requiring an assessment of the public prosecutor prior to the issuance of the data to ACM that can be checked in court;
- The only requirement for the issuance of the wiretaps is the necessity to do so for purposes of substantial general interest. The cartel prohibition is of substantial general interest as it serves the economic wellbeing of the country; and
- It is sufficiently plausible that ACM could not have collected this data in a different, less invasive manner.
The wiretaps were therefore concluded to be both (i) lawfully acquired by VROM-IOD and Rijksrecherche and (ii) lawfully provided to ACM by these authorities.
These judgments clarify that while the legislature decided to limit the ACM's powers of information-gathering, ACM can still be provided with such information by other means. In these cases, ACM was provided this information on the basis of investigative powers of other authorities. The threshold for this information-sharing now seems lower than ever as no justification other than a referral to the cartel prohibition is required.
Publicatie op Law-Now: Dutch Court of Appeal allows the use of wiretaps by competition watchdog