The District Court of Rotterdam recently ruled that former employees cannot invoke the right to remain silent when questioned in relation to their former employer. In 2009, the NMa imposed record fines on three former employees for failure to cooperate in an investigation into possible anti-competitive conduct by their former employers. Unlike the European Commission, the NMa is authorised to not only impose fines on companies but also on individuals for failure to cooperate with an investigation. The former employees refused to cooperate on the basis of the right to remain silent, a right acknowledged by the NMa in regard of the company under investigation and its current employees only.
According to the NMa, former employees do not have a right to remain silent in cases where its investigation is targeted at the company only. In such cases, only individuals interviewed by the NMa on behalf of the company can rely on this right. Former employees cannot be seen as representing the company and therefore have an obligation to cooperate with the NMa's investigation.
The District Court of Rotterdam confirmed the NMa's point of view in the recent appeals by two of the three former employees. The court first reiterated earlier case law in which it was held that if a company is interviewed, the right to remain silent can be invoked by anyone who "belongs to the company and through whom the company is being questioned". Accordingly, the right to remain silent applies to individuals in so far as they make statements on behalf of the company which could lead to self-incrimination by the company. A former employee no longer belongs to the company and thus cannot be questioned on behalf of the company, but only as an individual. As a result, he can no longer rely on the company's right to remain silent, irrespective of whether his statements are incriminating for the company. The NMa therefore rightfully imposed a fine for failure to cooperate. It remains to be seen whether the former employees will appeal against the judgment with the Trade and Industry Appeal Tribunal.
It should be noted that this ruling predates the NMa's authority to impose fines on individuals who "have instructed on or have exercised de facto leadership" in regard of anti-competitive practices, introduced in October 2007. Consequently, former employees currently need to carefully consider in which capacity the NMa is questioning them. If they are questioned as former employees who have instructed or exercised de facto leadership in regard of an anti-competitive practice, they will have an individual right to remain silent. In all other cases, they will have a legal obligation to cooperate and cannot invoke the right to remain silent.