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