On 9 July 2015, the Dutch Trade and Industry Appeals Tribunal ("CBb") ruled that the ACM can rely on evidence obtained through wiretaps by other governmental authorities. In its judgment, the CBb annulled two judgments of the District Court of Rotterdam ("District Court") of 13 June and 11 July 2013. The District Court had ruled that the Netherlands Authority for Consumers and Markets ("ACM") was not allowed to use evidence obtained by another governmental authority through wiretaps, unless it received adequately substantiated prior written authorisation of the Public Prosecutor that can be checked and assessed by a court [see our August 2013 newsletter]. The CBb referred the cases back to the District Court for a substantive assessment of the imposed fines.
The first CBb judgment relates to an ACM investigation into alleged customer allocation agreements among waste collectors in the port of Rotterdam. The second judgment relates to an ACM investigation into alleged tendering agreements between construction companies in the Dutch province of Limburg. In both cases, the ACM received its principal evidence from criminal investigations conducted by governmental agencies that fall under the authority of the Public Prosecution Service and have the power to use wiretaps.
The ACM itself does not have the power to use wiretaps. This judgment shows that other authorities which have this power may transfer evidence obtained through wiretaps to the ACM, provided that the evidence has been obtained legitimately by the former authority and the transfer is necessary to preserve a compelling public interest. According to the CBb, cartel prevention qualifies as such a public interest. The CBb reversed the District Court's judgment and ruled that the applicable legal provisions do not require the Public Prosecutor to substantiate why he approves the transfer of the evidence. The CBb acknowledged that a written substantiation of the approval facilitates easier ex-post judicial review but it is not mandatory. This is even the case where, as in the current two cases, the transferring authority's investigation was unrelated to competition rules.
The judgment broadens the evidence gathering tools of the ACM and other administrative enforcement agencies. Government agencies in the Netherlands are allowed to easily exchange evidence with each other. This judgment clarifies that this is also the case even if that evidence is obtained using powers that the receiving authority lacks. As soon as a competition law infringement is suspected, evidence obtained in an unrelated investigation can be transferred to the ACM.