On 10 December 2019 , the Authority for Consumers & Markets ("ACM") imposed a fine of € 1,84 million on a company for the failure to comply with the duty to cooperate as laid down in Article 5:20(1) of the Dutch General Administrative Law Act ("GALA").
ACM found that during an on-site investigation at the premises of the company relating to a possible infringement of Article 6(1) of the Dutch Competition Act and/or Article 101(1) Treaty on the Functioning of the European Union ("TFEU") several employees deleted files or data (WhatsApp messages, group chats) and/or removed themselves from WhatApp group chats. As a result, ACM was unable to assess whether the deleted data was relevant for the investigation and possible evidence was destroyed. According to ACM this constituted a serious infringement of the duty to cooperate pursuant to Article 5:20(2) GALA (for which a fine of up to 1% of the annual turnover may be imposed). ACM considers it to be the responsibility of the investigated company that its employees provide ACM with all cooperation that the authority may reasonably require in the exercise of its investigative powers (such as laid down in Article 5:17 GALA).
Although not specifically mentioned in the decision, it is clear that ACM adopted this decision in accordance with the ACM Guidelines on the simplified procedure for the settlement of penalty cases (Richtsnoeren vereenvoudigde afdoening van boetezaken ACM). The company issued a written statement to the ACM in which it recognised the facts and legal assessment of the case, accepted the infringement, provided additional (self-incriminating) proof, accepted a simplified procedure, accepted the method of fining and of the amount of the fine to be imposed and confirmed that it was given sufficient opportunity to state its views. In return, the company was offered a 20% discount on the amount of the fine resulting in an imposed fine of € 1,84 million.
Please find the decision of the ACM here (in Dutch only).