Broadly speaking, the powers of the ACM are the same as the powers provided to the Commission under EU Regulation No. 1/2003. The powers given to the ACM may only be used insofar as they are reasonably required.
The ACM’s surveillance officials are authorised to enter all premises, with no prior judicial authorisation being required. Private homes are an exception, in that the ACM is not allowed to enter without prior authorisation by the Rotterdam District Court. In the case of a Commission inspection, prior authorisation is required from the Rotterdam District Court if a company withholds permission for an extensive inspection of business premises or if a private home or vehicle is to be inspected.
During the dawn raid, the ACM’s inspectors may interview one or more employees. If there is a reasonable suspicion of a violation by the company, the inspectors must inform the company that it is not obliged to answer questions. The ACM generally accepts that all employees of the company may invoke the right not to answer questions. However, for former employees the right to remain silent is limited to cases in which they can be held personally liable for an infringement.
Surveillance officers are also authorised to request information, to examine books and other business records, and to make copies, although attorney-client privilege exists. It should be noted that - as opposed to EU case law - in the ACM’s dawn raids based only on Dutch competition law, attorney-client privilege also exists in relation to in-house lawyers who are admitted to the bar. The ACM is of the view that without attorney-client privilege, an in-house lawyer would no longer qualify as a viable competitor for external lawyers, and therefore has retained attorney-client privilege for in-house lawyers. As a result, conflicting regimes remain depending on the capacity in which the ACM conducts an investigation. If the ACM officials conduct investigations on the basis of Dutch competition law, Dutch national rules apply and the correspondence with both in-house and external counsel is covered by attorney-client privilege. The same applies to investigations by the ACM at the request of the Commission or a competition authority of another member state. However, if the ACM inspectors only assist the Commission officials, EU rules apply and correspondence with in-house counsel has no legal privilege coverage.
The ACM is focusing increasingly on searches of computer records during dawn raids. The standard procedure for investigations is laid down in the ‘2014 ACM Procedure for the inspection of digital data’ and the ‘2014 ACM Procedure regarding the legal professional privilege of lawyers’. This Procedure is partly the result of a ruling in interim relief proceedings, in which the District Court of The Hague ruled that the procedure of the digital logbook laid down in the previous ACM guidelines, Digital Procedure 2007, was an insufficient safeguard against fishing expeditions, since it only provided insight into which files had been opened during the investigation without specifying how long for and how thoroughly the files were examined. As a remedy, the court ordered the ACM to invite an authorised representative of the parties to be present during its investigation of the digital copies to make sure that no copied data beyond the purpose and subject matter of the investigation would be examined. The Procedure takes account of this ruling by providing the relevant company the opportunity to be present during the examination of the digital copies it claims are outside the scope of the ACM’s investigation. Interesting to note is that, the Court of Appeal of The Hague ruled in April 2013 that the ACM can order a forensic IT firm to produce a list of companies active in the sector under investigation by the ACM for which the IT firm 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 anticompetitive conduct.
In addition, the ACM has a ‘sealed envelope’ procedure similar to that known under EU case law to further safeguard legally privileged documents during ACM dawn raids. If a company refuses to allow the ACM officials to take a cursory look at a document because it considers it to be covered by legal privilege, the ACM inspector will place the document in a sealed envelope without having examined it and hand it to an independent ACM official: the legal professional privilege officer. The company subsequently has 10 business days to substantiate its legal privilege claim in writing to the legal professional privilege officer. This procedure - although an improvement - still remains controversial, as the legal professional privilege officer is not independent, as prescribed by the General Court in the Akzo case. The ACM contends that a company’s employees are obliged to answer questions, although they have the right not to answer questions that could incriminate their employer. The Streamlining Act, which entered into force on 1 August 2014, clarifies that only a company and its current employees have a right to remain silent. Contrary to an earlier ruling by the Trade and Industry Appeals Tribunal, former employees cannot invoke the right to remain silent when questioned by the ACM in connection with an investigation against their former employer. In September 2010, the ACM imposed a fine of €51,000 on the Dutch National Association of General Practitioners (LHV) for breaking a seal. This fine was quashed in appeal. According to the Trade and Industry Appeals Tribunal, LHV could not be held responsible for the seal break because a security guard at LHV’s shared office building broke the seal during his rounds. The guard was not directly employed by LHV and LHV had taken all the necessary steps to inform the persons who could possibly enter the room of the affixed seal. It informed the cleaning staff as well as the facilities manager of the shared office building and had affixed yellow tape across the door as an extra precaution. The Tribunal did not consider it necessary for LHV to have instructed the security guard directly, because contact with the security staff usually ran through the facilities manager. As of 1 July 2016, a clause is included in the Establishment Act of the ACM to clarify that a company will also be sanctioned for the breakage of an affixed seal if it has not taken all the necessary precautions to prevent a seal break.
In July 2015, the Dutch Trade and Industry Appeals Tribunal clarified that the ACM can use evidence obtained through telephone taps installed by other agencies for its own competition law investigations. The ACM itself is not authorised to tap phones when investigating suspected anticompetitive practices. In November 2017, the District Court of The Hague ruled that, when carrying out a dawn raid, the ACM can copy all business-related as well as private data from company employees’ mobile phones. The court found that the considerable size of the data stored on mobile phones makes it impossible for the ACM to select the relevant data at the company’s premises. As a result, the ACM is allowed to copy all the mobile phones’ data to select from at its offices at a later date. According to the court, the interests of an ACM investigation outweigh the right to privacy, as long as there are sufficient safeguards in place to prevent the ACM from inspecting data without being entitled to do so. According to the court, the ACM Procedure for the inspection of digital data provides for these safeguards.
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