On 12 July 2012, the Netherlands Authority for the Financial Markets ("AFM") imposed an order under pain of penalty on three companies. This order was issued because of the companies' refusal to cooperate with certain wide-ranging information requests in connection with an investigation into the alleged offence of providing investment services without a licence. This case was related to a criminal investigation that was concurrently ongoing. The statutory obligation to cooperate forces natural and legal persons to cooperate with regulators in the performance of their powers.

The companies (and their respective directors) filed a request for injunctive relief against the orders. The judge granted the request on 5 September 2012. He concluded as follows:

  • it can reasonably be expected that a (legal) person under supervision – if and in so far as (electronic) business data and records are held in a residence – grants permission to the regulator to enter a residence in order to inspect the data and records (and make copies), or delivers the data and records for inspection at a place other than the residence
  • the AFM must, in view of the principle of proportionality, substantiate the necessity of making an inspection of the e-mail system (or a copy thereof), and inform how it intends to prevent messages with a privileged or private nature from becoming known;
  • if there is a concurrent criminal investigation in which (legal) persons are a suspect, there is a heightened obligation for the AFM to state the reasons for the need to compel the disclosure of information from that particular (legal) person
  • requesting the public to provide (incriminating) information about a (legal) person falls outside the scope of the authority of a regulator to publish a decision to impose an order for incremental penalty payments.

The AFM, following this judgment, has temporarily adapted its methodology to a limited extent with respect to demands for explanations and insight into business information.