Companies beware: the ACM’s and European Commission’s approach to access to the file are not aligned. According to an interim relief judge, the ACM cannot be forced to grant a company access to a broader set of documents in competition procedures. A potential error in the administrative procedure can be remedied before a court at a later stage. This is different to the right to access to the Commission’s file during administrative procedures, as acknowledged in EU case law.

In summary proceedings, a company claimed fuller access to the ACM file than the subset it was originally granted access to. The civil interim relief judge ruled that Dutch administrative law does not provide for a legally enforceable obligation on the ACM to grant access to its entire file. According to the judge, there was no need to interfere because any violation of the principle of equality of arms can be remedied before the administrative appeals court at a later stage.

Discussion concerning the scope of the file to which the ACM grants access to companies under investigation is an ongoing phenomenon in the Netherlands. Generally, the ACM only provides access to a small subset of the entire set of documents it had access to in competition investigations.

Access to the file of competition authorities is a procedural step to protect companies’ rights of defence in sanction proceedings (principally under Article 6 ECHR) and to apply the principle of equality of arms. It provides companies the opportunity to examine evidence in the authority’s file and make known their views on the truth and relevance of the facts relied on by the authority and on the allegations made against them.

The right to access all documents that may be relevant to the defence during the administrative proceedings has long been acknowledged by EU courts. According to EU courts, an infringement of the right of access to the Commission’s file during the administrative procedure cannot be remedied by obtaining such access during the judicial proceedings. Such belated access to the file would not return a company to the situation in which it would have been if it had been able to rely on those documents during the administrative procedure. It is for this reason that the Commission, for example, grants companies access to its entire file.

However, this EU case law did not motivate the civil judge to interfere with the Dutch legal system and introduce an obligation for the ACM to grant access to a broader set of documents than the limited selection the ACM granted access to. Different to the EU case law, the judge ruled that any flaws which occurred at earlier stages in the procedure (such as a mistaken refusal to grant access to documents) can be remedied before a court at a later stage. The judge therefore dismissed the claim.

Even if this possibility of delayed access may seem too little too late, companies should take note of this current difference in approach between the Commission’s and the ACM’s competition procedures.

This article was published in the Competition Newsletter of January 2020.