Netherlands: Court Finds That ACM Was Not On A Fishing Expedition

Different from the District Court (see for more our Competition Newsletter of October 2012), the Court of Appeal of The Hague has ruled that the ACM can order a forensic IT firm to produce a list of companies active in the sector under ACM investigation for which it has carried out competition compliance audits. According to the Court of Appeal, the ACM has a legitimate interest in obtaining this list, since the results of these audits could be used by the audited companies to destroy evidence of possible anti-competitive conduct.

During a dawn raid conducted within the context of a sector investigation, the ACM found a report by the forensic IT firm of its findings regarding a competition compliance audit carried out on behalf of the company in the dawn raid. The ACM subsequently carried out a dawn raid at the premises of the IT firm and ordered it to produce a list of all companies active in the sector under ACM investigation for which the IT firm had carried out competition compliance audits. According to the ACM, the IT firm was bound to produce this list on the basis of the statutory obligation to cooperate with ACM investigations.

The Court of Appeal agreed. It ruled that third parties, such as the IT firm, have a duty to cooperate and can be ordered to supply information to the ACM on the basis of which the ACM can determine whether to initiate investigations into companies which it did or did not already suspect of cartel activities. In addition, the Court found that the requested list was not in breach of the principle of proportionality for two reasons. Firstly, the ACM had a legitimate interest in retrieving the identity of the audited companies within the sector concerned since the IT firm's findings could lead to the destruction of evidence by these companies. And secondly, the ACM's information request did not concern the IT firm's audit findings but was limited to the names of the audited companies.

It should be noted that the outcome may have been different if the IT firm had been hired through a lawyer instead of by the companies directly, as in such event its findings may have been covered by (derived) legal professional privilege.

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