Short Reads

District Court of The Hague rules on ACM's powers to select and inspect digital data

District Court of The Hague rules on ACM's powers to select and inspec

District Court of The Hague rules on ACM's powers to select and inspect digital data

01.08.2017 NL law

On 18 July 2017, in the context of preliminary relief proceedings, the District Court of The Hague ruled that the Dutch Authority for Consumers and Markets (ACM) did not exceed its powers in the selection of digital data following a recent dawn raid at company whose identity was undisclosed (applicant). The judge stated that the applicant did not sufficiently substantiate its claim that certain digital documents selected by the ACM were outside the scope of the investigation. The judgment sheds new light on the application of the ACM 2014 Procedure for the inspection of digital data.

The dawn raid was part of an investigation by the ACM into the applicant for an alleged abuse of dominance. Using its investigatory powers as defined in the Dutch General Administrative Law Act, the ACM copied large amounts of digital data that were potentially relevant to the investigation. After applying search terms to these copies the ACM created a 'within-scope dataset'. The applicant claimed this dataset included data that was outside the scope of the investigation, in part as a result of the broad search terms the ACM applied. While the ACM granted the applicant's claim for many documents, it refused to exclude some of the disputed documents from its final investigation dataset. The applicant then turned to the District Court of The Hague to obtain preliminary relief.

The District Court dismissed the applicant's request to remove the documents in question from the file. First, the Court argued that the applicant could have raised its objections to the search terms used by the ACM earlier in the process but had not done so. Secondly, although the Court acknowledged the applicant's right to an effective ex-post judicial review of ACM's methods and conduct, as formulated in the European Court of Human Rights' case law, the Court held that the applicant failed to substantiate its claim for each specific document. In order to have the documents excluded, it should have done more than refer to mere categories of documents that it argued should have been excluded from the dataset.

Notwithstanding the dismissal of the claims, the District Court agreed with the applicant on certain issues. According to the Court, the ACM cannot argue that certain documents fall within the scope of the investigation merely because they were selected through the use of search terms. Instead, the deciding factor should be a sufficient connection between documents and the scope of the investigation as defined by the ACM. Moreover, the Court emphasized that companies have a right to object to the inclusion of certain documents, even after the investigation dataset has been compiled.

This article was published in the Competition Law Newsletter of August 2017. Other articles in this newsletter:

1. Court of Justice dismisses Toshiba's appeal against the gas-insulated switchgear fine
2. Recent enforcement action demonstrates an increasing focus on compliance with procedural EU merger rules
3. Trade and Industry Appeals annuls fine imposed on real estate traders
4. District Court of Rotterdam upheld ACM's decision to clear lottery merger
5. ACM closes probe into Fox over live-soccer TV rights due to lack of evidence of consumer harm

Related news

01.08.2018 EU law
Belgian Court of Cassation annuls decision prohibiting pharmacists from using Google Adwords

Short Reads - On 7 June 2018, the Belgian Court of Cassation, ruled that a decision of the Pharmacists Association Appeals Council (Appeals Council) prohibiting pharmacists from using Google Adwords to offer over-the-counter (OTC) products violated Belgian competition law because the Appeals Council did not sufficiently justify why such a prohibition was necessary for health reasons. The Appeals Council must now issue a new decision.

Read more

01.08.2018 EU law
General Court underlines importance of Commission's duty to state reasons

Short Reads - On 13 July 2018, the General Court annulled the EUR 1.13 million fine imposed on Stührk Delikatessen Import GmbH & Co. KG (Stührk) by the European Commission in 2013 for Stührk's participation in the shrimp cartel. The Court ruled that the Commission had failed to adequately state reasons in the contested decision as to why the cartel participants were granted divergent fine reductions.

Read more

01.08.2018 EU law
Court of Appeal in the Netherlands decides to appoint independent economic experts in TenneT v ABB

Short Reads - On 20 July 2018, the Court of Appeal of Gelderland published another interim judgment in the ongoing proceedings between TenneT, the grid operator in the Netherlands, and ABB in relation to the gas insulated switchgear (GIS) infringement. After the Dutch Supreme Court had confirmed in a judgment of 8 July 2016 [see our August 2016 Newsletter] that the passing-on defence is available under Dutch law, the Court of Appeal of Gelderland decided to appoint independent economic experts to provide input on the calculation of overcharge and the existence of pass-on.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring