The Dutch Trade and Industry Appeals Tribunal clarified recently that the competition regulator ACM can use evidence obtained through telephone taps installed by other agencies for its own competition law investigations. The ACM itself is not authorised to tap phones when investigating suspected anti-competitive practices. The ACM will thus be able to more easily prove the existence of a “paperless” cartel by relying on evidence obtained by governmental agencies with wider information-gathering powers. Companies should check whether their compliance programmes stress that competition law infringements will not go unnoticed, even in the event of mere oral communication.

Telephone transcripts were provided to the Authority for Consumers and Markets (ACM) on the basis of Article 39f(1) of the Judicial Data and Criminal Records Act. This Act authorises the Public Prosecutor to disclose information forming part of a criminal file to third parties if this is necessary for compelling public interest reasons. At first instance, the District Court ruled that a violation of the cartel prohibition may constitute a compelling public interest justifying the handover of the telephone taps to the ACM. But the District Court held that even in the event of a compelling public interest, the Public Prosecutor has to first make an apparent and judicially verifiable assessment of the necessity to provide the relevant information before actually supplying it. Since the Public Prosecutor neglected to perform this assessment in this particular case, the District Court found that the ACM could not use the telephone taps as evidence.

On appeal, the Trade and Industry Appeals Tribunal agreed with the District Court that the enforcement of the cartel prohibition qualifies as a compelling public interest, but that neither the Act nor its legislative history requires the Public Prosecutor to set out the reasons for supplying the information beforehand. As to the legitimacy of handing over the information, the Tribunal considered that the wiretaps were installed legitimately, the procedure for the handover of the wiretaps was sufficiently safeguarded by judicial review, and the ACM could not have obtained the evidence by less intrusive means, as anti-competitive agreements are usually not made in writing. The Tribunal therefore reversed the District Court’s ruling.

These rulings show that the ACM is not bound by its own investigative powers when it comes to evidence gathering. All the more reason for companies to be aware and make sure their compliance programmes stress the need for careful language, not only in written form, but also in oral communications.