On 21 December 2012, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, "CBb"), the highest court for competition cases in the Netherlands, ruled that ex-employees have the right to remain silent when interviewed in relation to alleged infringements of competition law involving their former employer.
These cases started in 2009, when the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, "NMa") imposed fines of EUR 100,000 and EUR 150,000 on two individuals (a former general manager and a former sales manager) for obstructing the NMa's investigation into an alleged infringement involving their former employer by invoking the right to remain silent when interviewed by the NMa. The NMa was of the opinion that ex-employees cannot invoke this fundamental right. The NMa's decisions were upheld in appeal by the Rotterdam District Court.
The Dutch Competition Act stipulates that there is no obligation from the undertaking's side to make a statement if the NMa's officials have reason to suspect that an undertaking has violated the Dutch Competition Act. According to the NMa (and the Rotterdam District Court), ex-employees no longer belong to the circle of individuals within the undertaking and therefore fall outside the scope of persons who have a right to remain silent as determined in the Dutch Competition Act.
The CBb is very brief in its assessment of the case. It considers the NMa's interpretation of the relevant Section of the Dutch Competition Act, and in particular the phrase "from the undertaking's side" too restrictive. The individuals were asked to provide information about the actions of the undertaking in the period that they were employed by it. The mere termination of the employment is no justification to deny the right to remain silent, according to the CBb.
This case settles a long-lasting difference of opinion between the NMa and competition law practitioners about the scope of the right to remain silent. The CBb is a court of last resort for competition cases, so no further appeal is possible.
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