On 3 July 2013 the Authority for Consumers & Markets (Autoriteit Consument & Markt; "ACM") published a consultation document presenting two sets of draft guidelines: the "2013 ACM Guidelines on investigations into analogue and digital data" (ACM Werkwijze onderzoek analoge en digitale gegevens 2013; "WOADG") and the "2013 ACM Guidelines on privileged data" (ACM Werkwijze geprivilegieerde gegevens 2013; "WGG"). The guidelines describe how the ACM will treat data 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 very concise WOADG are based on the legal safeguards that have to be provided to parties involved in investigations of the ACM. Under the WOADG the procedural steps for investigations of data will be decided on a case by case basis. During a presentation of the consultation document the ACM indicated that under the WOADG, the principle of on-site investigation of digital data will be abandoned. Digital data will be secured at the premises of the undertakings involved and will be subsequently be searched at the premises of the ACM. Furthermore, the ACM indicated that under the WOADG, the investigation of metadata will become more important.
The WGG includes a detailed description of the different procedural steps that have to be followed if data is claimed 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 ACM invites any party involved to provide her with input on the consultation document. The ACM particularly requests for suggestions that could improve the practicability of the guidelines. Responses can be sent to the ACM before 20 August 2013. The ACM expects to adopt the final versions of the guidelines by the end of 2013.