On 5 October 2012, the President of the District Court in The Hague ruled in interim proceedings (LJN: BX9781) that a company was not obliged to provide certain information to the Dutch Competition Authority ("NMa"). The judgment is interesting in that it provides some clarity on the scope of the duty to cooperate with the NMa.
The plaintiff in this case was a company that specialised in competition law audits. These audits allow undertakings to verify whether its employees are involved in activities potentially violating the competition rules. Potentially, the results of these audits constitute very valuable information for the NMa. During a visit at the premises of a company under investigation, the NMa found a report drafted by the digital forensic investigation company. The report indicated that infringements of competition law had taken place. The documents that formed the basis of the findings were however no longer at the disposal of the alleged infringer. This led the NMa to turn to the firm that had executed the "audit".
The NMa demanded the audit firm to provide an overview of undertakings in the same industry where it had conducted such competition law audits in the previous five years. In addition, the NMa required the investigation company to preserve documents provided by these undertakings to the audit firm in the context of the audits available for investigation by the NMa.
The audit firm sought to suspend the NMa's requests for information. In the judgment, the President considered that an undertaking is only under a duty to cooperate as far as a request for information is proportionate.
In relation to the missing audit documents the President held that since the NMa could not turn to the alleged infringer and the audit firm did have the missing documents on file, the NMa was authorised to demand the missing audit documents from the audit firm. The President furthermore found the NMa's request that the plaintiff should keep the other information available for investigation was, in principle, proportionate if limited to a reasonable period of time (which was set at three months).
However, the President considered the NMa's demand that the audit firm should provide an overview of all companies in the same sector it had conducted audits at was not proportionate. The President held that the duty to cooperate does not entail an obligation for third parties to acquiesce in arbitrary demands for information on the basis of which the NMa may decide whether or not to deploy its supervisory competences.
It is clear from the events in this case that there are evident risks in employing an audit firm to conduct an internal investigation company without thinking about the potential consequences. In as far as the content of the report is not privileged the NMa can seize the documents which are central to the audit. Unwittingly, the audit can compile just the evidence a competition authority is most interested in.