The protracted dispute on the scope of a company's right to remain silent appeared to have been settled by the December 2012 ruling that ex-employees can invoke this right when questioned by the Authority for Consumers and Markets (ACM) in connection with an investigation into their former employer (for further details please see "Silence is golden: ex-employees do not have to snitch on former employers"). However, a recent bill submitted in the context of the creation of the ACM (for further details please see "New competition authority: new strategy") simply ignores this ruling and explicitly excludes ex-employees. Is this an oversight or an attempt to limit a company's rights unnoticed?
In the December 2012 ruling the Trade and Industry Appeals Tribunal considered that excluding ex-employees from the right to remain silent deprived a company of effective protection during investigations. According to the tribunal, the fact that the employees were no longer employed by the company did not justify such a restrictive approach, since the ex-employees were questioned on the company's behaviour at the time of their employment. In line with the tribunal's ruling, the ACM recently repealed its decision in which it imposed a record fine on an ex-employee for failure to cooperate in an investigation into possible anti-competitive conduct by its former employer. The ex-employee had refused to cooperate on the basis of the company's right to remain silent.
It is striking that a bill submitted four months later not only fails to mention this ruling, but also expressly limits a company's right to remain silent to company employees. Instead of incorporating the tribunal's view that excluding ex-employees from this right would deprive companies of effective protection, the bill appears to favour the ACM's interpretation that an extension of this right to ex-employees would harm the effectiveness of its enforcement powers. This interpretation was overruled by the tribunal and is less convincing than it may seem at first sight when compared to the European Commission's investigation powers. Unlike the ACM, the commission cannot compel current or ex-employees to make statements, but can interview (natural and legal) persons only on a voluntary basis. If the commission can make do with less far-reaching powers than the ACM has at present, a further erosion of a company's rights in favour of the ACM's investigative powers seems unnecessary. Regardless of whether the bill deliberately ignored the tribunal's ruling, the exclusion of ex-employees from a company's right to remain silent has not gone unnoticed. Questions have been asked in Parliament as to why the government has opted to exclude ex-employees, particularly in light of the tribunal's earlier ruling. It is now up to the government to come up with convincing answers.
For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (firstname.lastname@example.org, email@example.com firstname.lastname@example.org).