The Netherlands Authority for Consumers & Markets ("ACM") has published its "2014 ACM Guidelines on investigations into digital data" (ACM Werkwijze voor onderzoek in digitale gegevens 2014; "WODG") and its "2014 ACM Guidelines on legal professional privilege" (ACM Werkwijze geheimhoudingsprivilege advocaat 2014; "WGA"). These guidelines entered into force on 11 February 2014. The guidelines describe how the ACM will treat digital and privileged data, both digital and analogue, collected during investigations into possible competition law infringements or other infringements supervised by the ACM. They replace the guidelines of the three supervisors that merged into the ACM. The guidelines have been adopted after a public consultation.
The WODG prescribes the legal safeguards that must be provided to the undertakings investigated by ACM. The procedural steps for investigations of digital data will be decided and communicated by the ACM on a case by case basis. Under the WODG, the principle of on-site investigation of digital data is abandoned. Digital data will be secured at the premises of the undertakings involved and will subsequently be searched at the premises of the ACM. If the data are searched with the use of search terms, neither the undertaking involved nor its lawyers are allowed to be present at the search. Subsequently, the search terms will be provided to the undertakings involved in order to enable them to comment on the search terms. Another important element of the WODG is the prescription of retention periods after which the ACM has to destroy the digital data that it collected.
The WGA includes a detailed description of the different procedural steps that have to be followed if data is claimed as legally privileged. Contrary to the old system, digital data will not be searched by the ACM until the undertakings involved have been given the opportunity to claim legal professional privilege and these claims have been assessed by a "Legal Professional Privilege Officer" that is not involved in ACM investigations in any other way. The WGA stipulates that communications with both external and in-house lawyers are privileged, provided that these lawyers are members of a professional bar association, irrespective of the field of law to which the communications relate.