By two judgments of 7 July 2015, the Dutch Trade and Industry Appeals Tribunal ("Appeals Tribunal") overturned two earlier judgments of the Rotterdam District Court ("District Court") which had annulled two cartel decisions of the Dutch Competition Authority ("DCA") due to the alleged illegal use of evidence derived from telephone taps.
In June 2013, the District Court annulled two decisions of the DCA regarding, respectively, a cartel in the construction business and a cartel in the ship waste sector (See VBB on Competition Law Volume 2013, No. 7, available at www.vbb.com). In both cases, the DCA initiated the investigation after it had received information about possible price fixing arrangements from the public prosecutor, obtained through telephone taps carried out in the framework of pending criminal investigations. The DCA does not have the power to tap telephone calls in its own investigations.
At first instance, the District Court determined that prior to the provision of evidence obtained in the framework of a criminal investigation to other authorities for purposes other than the investigation concerned, an assessment must be made by the public prosecutor weighing the individuals' right to privacy against the public interest by reference to the principles of proportionality and subsidiarity. Furthermore, such assessment must be undertaken prior to providing the information and in a way that allows for proper judicial review. In the cases at hand, the Court held that in the absence of a satisfactory written assessment prior to the provision of the evidence by the public prosecutor, the evidence could not be used by the DCA. Further, since without the evidence from the telephone taps the DCA would not have had sufficient evidence to prove the price fixing arrangements, the Court annulled the two cartel decisions.
On appeal, the Appeals Tribunal first agreed with the District Court that an assessment weighing the individuals' right to privacy against the public interest must take place. However, the Tribunal held that the absence of a prior written assessment does not necessarily lead to the conclusion that the provision of evidence was illegal. The Appeals Tribunal went on to determine whether in the particular circumstances of the two cases the provision of the evidence by the public prosecutor was in accordance with the principles of proportionality and subsidiarity. According to the Tribunal, the DCA could not have obtained the information on the existence of price fixing arrangements by less invasive means, as such agreements are in general not made in writing. The fact that the DCA did not itself have the power to conduct telephone taps did not preclude the use of evidence from such taps that was provided in accordance with the law. Furthermore, the Tribunal determined that the procedure for the provision of the evidence by the public prosecutor was sufficiently safeguarded by procedures of judicial and administrative review. Indeed, the DCA had adequately addressed and assessed the use of evidence from the telephone taps in its cartel decisions.
The Appeals Tribunal therefore annulled the District Court's judgments and referred the cases back to the lower Court for further deliberation concerning substantive points of appeal raised against the cartel decisions.
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