?The Trade and Industry Appeals Tribunal has resolved a long-running dispute on the scope of a company's right to remain silent. It ruled that ex-employees can invoke this right when questioned by the Competition Authority – now the Authority for Consumers and Markets(1) – in connection with an investigation into their former employer. In 2009 the Competition Authority imposed record fines on three ex-employees for failure to cooperate in an investigation into possible anti-competitive conduct by their former employer.(2) The ex-employees refused to cooperate, arguing that they had the right to remain silent – a right acknowledged by the Competition Authority, but only in regard to the company under investigation and its current employees.(3) Unlike the European Commission, the authority is authorised to impose fines not only on companies, but also on individuals for failure to cooperate with an investigation.(4)

According to the Competition Authority, ex-employees do not have a right to remain silent in cases where its investigation is targeted at the company only.(5) In such cases, only individuals interviewed by the Competition Authority on behalf of the company can rely on this right, since an extension of this right to ex-employees would harm the effectiveness of its enforcement powers. The Rotterdam District Court confirmed the Competition Authority's point of view in the appeals by two of the three ex-employees. The court reiterated earlier case law in which it was held that if a company is interviewed, the right to remain silent can be invoked by anyone who "belongs to the company and through whom the company is being questioned". Accordingly, the right to remain silent applies to individuals insofar as they can make statements on behalf of the company which may lead to self-incrimination by the company. An ex-employee no longer belongs to the company and thus cannot be questioned on behalf of the company, but only as an individual. As a result, he or she can no longer rely on the company's right to remain silent, irrespective of whether his or her statements incriminate the company.

In the appeal against the district court's judgment, the Trade and Industry Appeals Tribunal ruled that such a restrictive interpretation of the right to remain silent will deprive the company of effective protection during investigations. The fact that the employees are no longer employed by the company does not justify such a restrictive approach, since the ex-employees were questioned on the company's behaviour at the time of their employment. The tribunal overturned the district court's ruling, thus settling the scope of a company's right to remain silent exercised through ex-employees once and for all.

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.com or jaap.dekeijzer@debrauw.com).

Endnotes

(1) The Competition Authority, the Netherlands Consumer Authority and the Dutch Independent Post and Telecommunications Authority joined forces on April 1 2013, creating the Netherlands Authority for Consumers and Markets.

(2) For further details please see "Former general managers pay dearly for principles" and "Competition Authority fines another former employee".

(3) Employees and former employees can be fined individually for anti-competitive acts committed after October 1 2007. In such event, they have a right to remain silent during the investigation.

(4) Regulation 1/2003 (OJ 2003, L1/1) does not authorise the European Commission to impose fines on staff members. However, the commission can interview staff members under Articles 19 and 20(2)(e) of Regulation 1/2003, but only in the latter case may a fine be imposed on the undertaking for failure to respond to a question (see Article 23(1)(d) of Regulation 1/2003).

(5) Employees and former employees can now also be fined individually for illegal acts committed after October 1 2007. In such case, these individuals should have a right to remain silent during the investigation.