The Hague District Court has prohibited the Competition Authority from embarking on a fishing expedition.(1)

The authority started a cartel investigation, in the context of which it conducted a dawn raid at the premises of one of the suspected infringers. During the dawn raid it appeared that a forensic IT firm had previously carried out a compliance audit for this company, for which it copied and reviewed potentially relevant data. The authority carried out a dawn raid at the premises of the IT firm and secured the potentially relevant data set which was no longer available at the company's own premises.

Subsequently, the authority ordered the IT firm to produce a list of all undertakings in the industry under investigation for which the IT firm had carried out compliance audits, and to preserve any data obtained for these audits. The authority intended subsequently to select undertakings from this list and to order the IT firm to hand over the audit report, key word list and underlying data. According to the authority, the IT firm was obliged to produce this information on the basis of the statutory obligation to cooperate with authority investigations.

To justify this extraordinary approach, the authority amaintained that "it could not be excluded" that the undertakings – which were not yet involved in the cartel investigation – were involved in cartel activities, and the fact that the IT firm had carried out audits for these companies could reveal information relevant to the authority's investigation. The authority's suspicions about these companies were apparently insufficient to conduct dawn raids and obtain relevant data from these companies directly.

The court rejected the authority's approach. Since no reasonable suspicion of cartel participation by these companies had been established, the statutory cooperation provision provided no basis for the authority arbitrarily to order third parties to produce information on the basis of which the authority would then decide whether to apply investigative measures. However, the court confirmed that the IT firm was obliged to preserve the data obtained from audits in the relevant industry for a limited period of three months in case the authority could establish a suspicion about a particular company through the exercise of its (legitimate) investigative measures.

In this judgment the court has clarified that if the authority has a reasonable suspicion about an undertaking, it can order third parties to cooperate and provide data regarding that undertaking which otherwise would not be available. However, the authority cannot order third parties to help it proceed against undertakings about which it has insufficient suspicions.

For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (jolling.depree@debrauw.com or erik.pijnackerhordijk@debrauw.com).

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Endnotes

(1) President of The Hague District Court in interim injunction proceedings, October 5 2012, LJN: BX9781.