While skimming through employees’ chat conversations and e-mails, it is not uncommon for competition authorities to stumble across other potential antitrust violations, separate from the initial scope of the search. Companies should realise that when this happens, a competition authority does not necessarily have to turn a blind eye to evidence lawfully collected during a dawn raid which points at a separate antitrust infringement, as confirmed by the preliminary relief court in The Hague.
All the more reason for companies to fully grasp the investigation’s scope at the very start of the dawn raid, and to keep a close eye on the search strategies used by ACM officials to safeguard the fine distinction between accidental finds and illegal fishing expeditions.
Prompted by market signals, the Dutch Authority for Consumers and Markets (“ACM”) initiated an investigation as to whether several traders in the agricultural sector had acted in violation of the cartel prohibition laid down in Article 6 of the Dutch Competition Act and in Article 101 TFEU. The scope of the initial investigation was based on suspicions of a potential buyer cartel. During the dawn raids at several companies’ premises, ACM officials viewed several e-mails and chat conversations on certain employees’ smartphones – selected by way of search questions – to assess whether the data were 'within the scope', i.e. whether they could reasonably fall within the purpose and object of the investigation. Based on the information found in the data, the ACM subsequently extended the scope of its investigation to include suspicions of sales price collusion.
In preliminary proceedings, the raided companies claimed that the ACM had unlawfully obtained and selected digital data during the dawn raid. According to the companies, the ACM had violated its own Procedure for the inspection of digital data (“Digital Data Procedure”) by inspecting data for longer than necessary to assess whether the data fell within the scope of the investigation. Article 2.2 of the Digital Data Procedure stipulates that until the 'secured dataset' is selected in such a way that it can be designated as the 'within scope dataset', ACM officials will not examine the data for any longer than necessary to assess whether it falls within the scope of the investigation.
The companies argued that the ACM did not comply with article 2.2 because it took a longer look at the data in the secured dataset than necessary, thereby unlawfully obtaining the data, which then led to the extension of the investigation’s scope. According to the companies, the decision to extend the investigation’s scope was based on a thorough examination of an extensive number of emails and chat messages, leading to the conclusion that the ACM officials did more than just take a cursory look.
The court in preliminary relief concluded that the companies had not made this claim plausible. Whereas the companies consider that the ACM should have limited its chat message review to only the most recent messages, the court agreed with the ACM that such an interpretation of the Digital Data Procedure is too limited. The ACM is allowed to cursory scroll through chat conversations and e-mails; otherwise, it would be almost impossible to properly assess whether data are within the scope. According to the court, the data on which the ACM based the extension could be found without taking a ‘longer than necessary look’. When scrolling through conversations, messages can be scanned immediately and quickly. Given the interwoven nature of the clues which were discovered with the original aim of the investigation, the court in preliminary relief did not find it problematic that the ACM had stumbled upon the clues in this way. The court in preliminary relief concluded that the ACM did not act unlawfully towards the companies by using this working method.
The procedure that the ACM may only briefly review data when determining whether they are within scope should not be interpreted too restrictively. According to the court, the ACM is allowed to scroll through all digital data related to the initial scope of the investigation and – based on this cursory review – extend the investigation’s scope when it finds evidence or clues which point at a separate antitrust infringement.
This article was published in the Competition Newsletter of August 2021. Other articles in this newsletter:
Are your distribution contracts ready for the revised VBER?
Horizontal cooperation: from the dark side to the light?
ACM issues first excessive pricing fine in pharma
Netherlands FDI regime protecting national security is getting closer
CJEU clarifies jurisdiction for follow-on damage claims
Amsterdam Court of Appeal rules on the applicable law to air freight
Court assesses threshold for substantiating cartel damage plausibility