The first personal cartel fines imposed by the Authority for Consumers and Markets (ACM) (for further details please see "The heat is on: Competition Authority imposes its first personal cartel fines") were overturned by a recent ruling which concluded that the ACM was not allowed to use transcripts of wiretaps installed by the public prosecutor as evidence in its investigation of a possible cover pricing cartel. However, the court's ruling did not exclude the possibility of the public prosecutor lawfully providing transcripts of wiretaps to the ACM in future competition law investigations.

Even though the ACM, like the European Commission, is not authorised to tap telephones when investigating possible anti-competitive practices, the ACM built its decision in this case around the evidence obtained through wiretaps. The public prosecutor had installed taps on the lines of several employees of a construction company to investigate possible corruption and bribery of public servants during tender procedures. In 2008 the public prosecutor contacted the ACM with suspicions of a price-fixing cartel among several construction companies and provided it with approximately 30 telephone transcripts on the basis of Article 39f(1) of the Judicial Data and Criminal Records Act.

In interim relief proceedings before the District Court of The Hague, the construction company argued that only information relevant to the criminal investigation was part of the criminal file. Thus, the act was not applicable to (criminally irrelevant) information on possible infringement of the Competition Act. Even if this information should be considered part of the criminal file, Article 39f(1) of the Judicial Data and Criminal Records Act prevented it from being disclosed to third parties without a compelling public interest. Competition law enforcement did not constitute such interest, according to the construction company. The District Court of The Hague disagreed. It considered the price-fixing information to be part of the criminal file since the telephone transcripts should be regarded as one integral piece. In addition, the court found that the enforcement of the Competition Act constituted a compelling public interest now that it was concerned with protecting the economic wellbeing of the Netherlands, and concluded that the public prosecutor could lawfully provide the telephone transcripts to the ACM.

On appeal against the ACM's fining decision, the District Court of Rotterdam agreed with the District Court of The Hague that a violation of the cartel prohibition could constitute a compelling public interest which justified the supply of the wiretaps to the ACM. But, contrary to the provisional relief court, the Rotterdam court found that even in the event of a compelling public interest, the public prosecutor first had to make an apparent and, for a court, verifiable assessment of the need to provide the relevant information before actually supplying it. Since the public prosecutor had neglected to perform such assessment in this particular case, the ACM could not use the wiretaps as evidence. The District Court of Rotterdam recently applied a similar reasoning to overturn the cartel fines imposed in a shipping waste cartel.

Even though the ruling of the District Court of Rotterdam may not prevent the ACM from obtaining telephone transcripts through the public prosecutor in future competition cases, it does impose an additional hurdle which needs to be taken prior to the supply of such information. The ACM can appeal the ruling.

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 (jolling.depree@debrauw.com, erik.pijnackerhordijk@debrauw.comorjaap.dekeijzer@debrauw.com).