The Hague District Court has prohibited the NMa from embarking on a fishing expedition.1
The NMa started a cartel investigation, in the context of which it had 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 NMa 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 NMa 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 the NMa ordered the firm to preserve any data obtained for these audits. The NMa intended to subsequently select undertakings from this list and to order the IT firm to produce the audit report, key word list, underlying data, etc. According to the NMa, the IT firm was obliged to produce this information on the basis of the statutory obligation to cooperate with investigations of the NMa.
To justify this extraordinary approach, the NMa put forward 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 for the NMa's investigation. The NMa's suspicions about these companies were apparently insufficient to conduct dawn raids and obtain relevant data from these companies directly. The Court rejected the NMa's approach. Since no reasonable suspicion of cartel participation by these companies had been established, the statutory cooperation provision provided no basis for the NMa to arbitrarily order third parties to produce information on the basis of which the NMa will then decide whether to apply investigative measures. The Court confirmed, however, that the IT firm was obliged to preserve the data obtained for audits in the relevant industry for a limited period of 3 months in case the NMa were able to establish a suspicion about a particular company through the exercise of its (legitimate) investigative measures.
In this judgment the Court has made clear that if the NMa 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 NMa cannot order third parties to help it proceed against undertakings about which it has insufficient suspicions.
Footnotes
1. President of The Hague District Court in interim injunction proceedings, 5 October 2012, LJN: BX9781.
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