On 12 February 2019, the Court of Appeal of The Hague ("Court of Appeal") ruled that a dawn raid carried out by the Dutch Authority for Consumers and Markets ("ACM") at the premises of the claimant was lawful, and that the search was conducted in accordance with the 2014 ACM Procedure for the inspection of digital data ("Procedure"). It upheld the ruling by the District Court of The Hague of 10 October 2018. The claimant essentially raised issues with respect to the reason for the dawn raid, its purpose and the subject of that raid, and the way in which digital data was selected and used.
The claimant argued that Dutch law and the Procedure do not offer sufficient safeguards against abuse and arbitrariness and that for this reason alone the dawn raid carried out by the ACM was unlawful. More specifically, the claimant criticized the lack of a prior judicial authorization and the absence of an independent party during a dawn raid conducted by the ACM.
The Court of Appeal rejected these arguments and held that the absence of such forms of control does not constitute a violation of fundamental rights, because Dutch law offers other adequate and effective safeguards against abuse and arbitrariness, including the possibility of an ex post judicial control.
Within this context, the claimant also unsuccessfully argued that Dutch law should require that a description of the objective and subject of the inspection be presented during such a dawn raid, and that the Dutch rules governing the investigatory powers of the ACM are not sufficiently precise.
The Court of Appeal held that the general rules of the Dutch General Administrative Law Act must be read in conjunction with the Procedure, which explains how the ACM deals with digital data collected during its investigations and what safeguards it observes when inspecting digital data. According to the Court, case law further specifies the rules governing the ACM's investigatory powers within the framework of the Procedure and the general rules.
The Procedure, which also set out a number of verification tools that allow parties involved to make sure that the relevant safeguards have been observed, constitutes a policy to which the ACM is bound within the framework of Dutch administrative law. The Procedure obliges the supervisory officers of the ACM to provide a description of the purpose and subject matter of the investigation before it uses its investigatory powers. Hence, Dutch law provides for sufficient safeguards against abuse and arbitrariness, according to the Court. In this regard, it pointed out that compliance with the policy rules can, if necessary, also be enforced in court.
In addition, the Court of Appeal held that the ACM had sufficient prima facie evidence to justify an inspection at the claimant's premises, and that, contrary to the claimant's argument that a request for information would have been sufficient, a dawn raid was proportionate in such circumstances.
The Court of Appeal further ruled that the description of the objective and subject of the dawn raid was sufficiently clear since the ACM specified the type of practices which were subject to its investigation. In this context, it took into account the fact that such a description has to be handed over at an early stage. In light of this, it was not unacceptable that the ACM required "other competitively relevant information" from the claimant, taking into account other terms used in the dawn raid's description.
The Court of Appeal further held that the ACM did not err in selecting the digital information necessary for its investigation. Finally, it ruled that the processing of data by the ACM is in conformity with the GDPR.
THE NETHERLANDS: On 26 February 2019, the Dutch Authority for Consumers and Markets ("ACM") published two competition law guides in order to assist businesses in assessing: (i) cooperation between competitors and (ii) agreements between suppliers and customers (available in Dutch only).
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