The long-lasting dispute on the scope of a company's right to remain silent seemed settled by last December's ruling that ex-employees can invoke this right when questioned by the ACM in connection with an investigation into their former employer (see for more our Competition Newsletter of April 2013). However, a recent bill submitted in the context of the creation of the ACM (see for more our Competition Newsletter of October 2012) simply ignores this ruling and explicitly excludes ex-employees. An oversight or an attempt to limit a company's rights unnoticed?
In last December's ruling, the Trade and Industry Appeals Tribunal considered that excluding ex-employees from the right to remain silent deprives a company of effective protection during investigations. According to the Tribunal, the fact that the employees are no longer employed by the company does not justify such a restrictive approach, since the ex-employees are 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 In line with the Tribunal's ruling, the ACM recently repealed its decision in which it imposed a record fine on an ex-employee for failure to cooperate in an investigation into possible anti-competitive conduct by its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 does not mention this ruling but expressly limits a company's right to remain silent to individuals that are employed by the company. 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 is an interpretation which 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 European Commission cannot compel any current or ex-employees to make statements but can only interview (natural and legal) persons on a voluntary basis. If the European Commission can make do with less far-reaching powers than the ACM currently has, 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 or not, the exclusion of ex-employees from a company's right to remain silent has not gone unnoticed. Questions have been asked in Parliament on 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.