Communicated on 14 December 2018

THIRD SECTION

Application no. 3124/16
BURANDO HOLDING B.V.
against the Netherlands
lodged on 7 January 2016

STATEMENT OF FACTS

1. The applicant, Burando Holding B.V., is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid), with its seat in Rotterdam. It is represented before the Court by Mr M.A.D. Bol and Mr H.A. Bravenboer, lawyers practising in Rotterdam.

2. The applicant company is active in the Rotterdam port region. It is one of several companies in that area whose business includes the collection of waste liquids (or “slops”) from seagoing ships for disposal.

A. The circumstances of the case

3. The facts of the case, as submitted by the applicant company, may be summarised as follows.

1. Background to the case

4. The Information and Investigation Service (Inlichtingen- en Opsporingsdienst) of the Ministry of Housing, Spatial Planning and the Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer) began an investigation into another collector of waste liquid from ships, I., suspected of mixing polluted waste liquids with bunker oil in contravention of legislation for the protection of the environment.

5. Between February 2007 and April 2007 telephone conversations made by the management of I. were intercepted, recorded and then either transcribed or summarised in the course of these investigations. Among the conversations so recorded were conversations between I.’s managing director and the managing director of the company Ships Waste Oil Collector B.V. (applicant in case no. 2799/16) from which it appeared that the two companies were engaged in price-fixing.

2. The transfer of criminal data

6. An official record dated 21 April 2008 by an official of the Ministry of Housing, Spatial Planning and the Environment records several of these telephone conversations. It is stated that that record is to be forwarded to the Netherlands Competition Authority (Nederlandse Mededingingsautoriteit, “NMA”) through the intervention of the public prosecutor (officier van justitie).

7. There being indications that companies other than I. and Ships Waste Oil Collector B.V. were involved, the NMA transmitted a set of search terms to the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment with which to identify telephone conversations relevant to the investigation to be undertaken by the NMA.

8. On 21 October 2008 the public prosecutor gave permission for the official record to be forwarded to the NMA by adding “transfer to NMA approved (akkoord verstrekking aan NMA)”, dated and signed, in handwriting.

9. The official record was transferred to the NMA on 29 June 2009. The NMA subsequently sent the Ministry of Housing, Spatial Planning and the Environment a request for complete sound recordings to be transferred to it.

10. Further transcripts and recordings of intercepted telephone conversations were forwarded to the NMA on 26 November 2009, 7 July 2010 and 2 September 2010. On each occasion the public prosecutor gave permission in summary form without reasoning for transmission to take place.

3. The decision by the NMA to impose fines and the administrative review proceedings

11. An NMA report of 28 December 2010 found that the applicant company, together with the company I., Port Invest B.V. and others, was accountable for an infringement of section 6(1) of the Competition Act (Mededingingswet). This report quoted extensively from transcripts of telephone conversations.

12. Following an exchange of arguments in writing and a hearing held on 15 April 2011, the Governors (Raad van Bestuur) of the NMA gave a decision on 16 November 2011. As relevant to the case, they found that the transcripts and recordings had been lawfully forwarded to them by decision of the public prosecutor under the authority of the Board of Procurators General (College van procureurs-generaal). In terms of Article 8 of the Convention, it was “in accordance with the law” in that it had a statutory basis and was foreseeable, and it met a “pressing social need”, to wit, the enforcement of competition law. There was no suggestion that the interceptions themselves had been unlawful, or that the competing interests had been wrongly weighed by the public prosecutor. They found the applicant company and the other companies involved in the proceedings to have violated the prohibition set out in section 6 of the Competition Act (Mededingingswet). They imposed a collective fine on the company I., Port Invest B.V. and the applicant company in an amount of 1,861,000 euros, the applicant company being jointly and severally liable for EUR 621,000 of this.

13. The company I., the applicant company and Port Invest B.V. lodged a joint written objection (bezwaarschrift). They protested against the lack of any judicial control of the transfer to the NMA of the telephone interceptions in issue, arguing that the authority of the public prosecutor, even if delegated by the Board of Procurators General, could not substitute for that of an independent court. It also protested against the apparent absence of any weighing of competing interests. Relying on, inter alia, section 6(3) of the Competition Act, they further denied any wrongdoing.

14. With the consent of the NMA, the objection (bezwaar) phase was bypassed and the applicant companies submitted their objection directly to the Rotterdam Regional Court (rechtbank) by way of appeal (beroep).

4. Appeal proceedings before the Rotterdam Regional Court

15. The NMA lodged a written defence statement.

16. As relevant to the case before the Court, the NMA stated that the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment had intercepted telephone conversations from which it appeared that the company I. and the applicant company were engaged in illegal price fixing; summary transcripts of these were transferred to the NMA, through the intermediary of the public prosecutor. Further summary transcripts of intercepted telephone conversations had been transferred to the NMA at its request with the permission of the public prosecutor. These had been existing summary transcripts; the NMA had had no involvement in the criminal investigation carried out by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment under the guidance of the public prosecution service (openbaar ministerie). The extensive transcripts had been elaborated by the NMA itself, not by the public prosecution service at the NMA’s request. The legal basis for such transfer was section 39f of the Judicial Information and Criminal Data Act (Wet justitiële en strafvorderlijke gegevens), which so permitted in pursuance of a “compelling general interest” – an expression which encompassed “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” as referred to in Article 8 of the Convention. The public prosecutor was a functionary eminently suited to that responsibility. As to the telephone interceptions themselves, there was neither information to suggest nor reason to believe that they had been unlawful; in this matter, the NMA was dependent on the public prosecution service. As regards the substance of the case against the applicant company, the telephone conversations themselves were relied on (with other items of evidence) as proof of price-fixing.

17. Having held a hearing, the Regional Court gave a decision on 11 July 2013 deciding the appeal of the applicant company jointly with the appeals of three other ships’ waste disposal companies (Ships Waste Oil Collector B.V., Port Invest B.V. and the company I.) suspected of price-fixing. As relevant to the case before the Court, its decision included the following:

“13. It follows from [the Regional Court’s own] decision of 13 June 2003 [ECLI:NL:RBROTT:2013;CA3079][1] that the transfer of criminal data requires a weighing of interests by the public prosecutor in person that is knowable and can be reviewed by the court, that has led to the conclusion that there is a need for the provision of criminal data because of a compelling public interest. In addition, the public prosecutor must consider whether such provision is in accordance with the principles of proportionality and subsidiarity. In this connection, the Regional Court has stressed the need to respect the requirements of Article 8 of the Convention, on the ground of which everyone has the right to respect for his or her private life. Section 39 [the Court takes this to mean section 39f] of the Judicial Information and Criminal Records Act, which provided a statutory basis for the provision of criminal data to third parties, guarantees that these requirements are met.”

Since the public prosecutor had merely granted permission for the transfer of the transcripts to the NMA, in handwriting on the official record of 28 October 2010 and on pre-printed forms without reasoning subsequently, the Regional Court found that no revie