On 11 July 2013 the Rotterdam District Court annulled a fine that was imposed by the ACM (at the time, known as the NMa) on companies for manipulation of prices for waste collection in the port of Rotterdam. The annulment was due to the public prosecutor’s failure to adequately substantiate why it had provided the ACM with wiretaps that were obtained during an unrelated criminal investigation.
In 2006, the intelligence and investigation service of the Ministry of Housing, Spatial Planning and the Environment ("VROM-IOD"), investigated the infringement of the Environmental Management Act. The wiretaps that were used by the VROM-IOD revealed discussions that appeared to indicate infringements of the Dutch Competition Act.
After receiving authorization from the public prosecutor, an official report that contained the VROM-IOD's suspicions was provided to the ACM, including some transcripts of the wiretaps. This report was the only reason for the ACM to investigate the matter, as it had no other indication of illicit conduct. During the investigation, the ACM requested more transcripts, summaries and the tapes themselves, which were all provided with the authorization of the public prosecutor.
In its decision, the Court explicitly refers to its previous judgement of 13 June 2013, which also dealt with the sharing of wiretaps regarding a cartel concerning fake bids on construction contracts. The Court held that it had no reason to rule differently in this case. It therefore reiterated that there has to be an adequate substantiation from the public prosecutor when information from a criminal investigation is shared with third parties. Referring to Article 8 of the European Convention of Human Rights and Article 39 of the Judicial Data and Criminal Records Act, the Court held that the public prosecutor should also assess the necessity to provide the information and see whether the requirements of the principles of proportionality and subsidiarity are met.
The Court annulled the imposed fine as the public prosecutor failed to adequately substantiate why it had provided the information. Both this judgement and the judgement of 13 June 2013 demonstrate that there is a clear obligation for the public prosecutor to provide an assessment that can be checked and tested by a court. This is particularly so, as the use of wiretaps is a special investigatory method, for which a delegated judge has to give specific authorization.
The ACM has idicated a statement that it will appeal both judgements before the Trade and Industry Appeals Tribunal.