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 reviewable weighing of interests had been recorded. From this it followed that the transcripts were to be excluded as evidence. Since the NMA had previously had no indication of price-fixing and would not have begun an investigation without the information given by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment, and since the NMA’s decision depended entirely on the intercepted telephone conversations and on documents handed over or statements made by persons after they had been confronted with these telephone conversations, the Regional Court quashed the NMA’s decision in its entirety.
5. Further appeal proceedings before the Administrative High Court for Trade and Industry
18. The Consumer and Market Authority (Autoriteit Consument en Markt, “ACM”), the successor body to the NMA by this time, lodged a further appeal (hoger beroep) with the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven). As relevant to the case before the Court, it argued that the transfer of criminal data by the public prosecution service to another entity would only be contrary to domestic law or to Article 8 of the Convention if it could not be considered necessary with a view to a compelling general interest or if it did not comply with the requirements of proportionality and subsidiarity. That assessment fell to be made, according to the Judicial Information and Criminal Data Act, by the civil courts in the shape of an ex post facto judicial review, as had taken place in the case [leading to application no. 2800/16]. In addition, the transfer of criminal data to a third party on the basis of section 39f(1) of the Judicial Information and Criminal Data Act was a factual act, not a decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht), and therefore not amenable to judicial review by the administrative courts. Such a transfer by a public prosecutor required neither reasoning nor an ex ante review of its lawfulness. According to the ACM, use in evidence of the criminal data received was admissible as there were no indications that the data had been obtained unlawfully or that, even if it that were the case, the manner of that obtainment ran counter to the proper behaviour expected of authorities to such an extent that its use could not be considered permissible under any circumstances (verkregen op een wijze die zozeer indruist tegen hetgeen van een behoorlijk handelende overheid mag worden verwacht dat het gebruik hiervan onder alle omstandigheden ontoelaatbaar moet worden geacht).
19. The ACM’s further appeal was joined by the Board of Procurators General.
20. Ships Waste Oil Collector B.V., Burando Holding B.V., Port Invest B.V. and the company I. lodged a cross-appeal. In these further appeal proceedings, they presented a joint position. They submitted that the intercepted telephone conversations fell outside the scope of the criminal investigation and therefore were not properly in the case file. They further argued, inter alia, that data, obtained in a criminal investigation and by means of an interference with the right to private life, could not be transferred to third persons without a balancing of interests – set out in a reasoned manner – having taken place prior to any such transfer. On the basis of a set of search terms transmitted to the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment, the NMA had listened electronically to intercepted telephone conversations, which could not be considered as the provision of data within the meaning of the Judicial Information and Criminal Data Act. Moreover, it was for the administrative courts to examine, in proceedings against the imposition of a fine, the lawfulness of the manner in which evidence, on the basis of which that fine had been imposed, had been obtained.
21. Ships Waste Oil Collector B.V., Burando Holding B.V., Port Invest B.V. and the company I. maintained their prior position as to the merits of the case.
22. On 14 April 2014 the Administrative High Court for Trade and Industry gave a decision (ECLI:NL:CBB:2014:151) rejecting the appeal of the Board of Procurators General. It found that since the merits of the case concerned not criminal law but the enforcement under administrative procedure of competition law, the Board of Procurators General had no legal interest of its own and hence no locus standi.
23. Having held a hearing on 20 November 2014, the Administrative High Court for Trade and Industry gave its decision on 9 July 2015 (ECLI:NL:CBB:2015:192). Holding that the appeal of the ACM was well‑founded, it quashed the decision of the Regional Court and remitted the case to it for rehearing. It dismissed the applicant company’s cross‑appeal. As relevant to the case before the Court, its reasoning included the following:
“4.6. The first matter to be decided in this connection is whether the provision of criminal data, consisting in the present case of intercepted telephone conversations, based on section 39f of the Judicial Information and Criminal Data Act is contrary to Article 8 of the Convention. An interference with the right to privacy is only permitted under Article 8 § 2 of the Convention in so far as it is in accordance with the law and necessary in a democratic society in the interest of, among other things, the economic well-being of the country.
The starting point in considering this issue is that the interception of the telephone conversations from which the intercepted data were obtained took place after the investigating judge gave permission to do so. The arguments presented by the company I., Port Invest B.V. and Burando Holding B.V. do not constitute grounds to find that the intercepted telephone conversations have not been obtained in accordance with the requirements of criminal procedure in force by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment.
The public prosecutor’s competence to provide the intercepted telephone conversations is statutorily grounded in the Judicial Information and Criminal Data Act. Moreover, as regards the lawfulness of this obtainment, the law provides for a judicial procedure attended by sufficient guarantees, both under civil law within the framework of the provision of the data and under administrative law within the framework of the review of the decision to impose the fine for which these data have served as a basis. It appears from the report in these cases that the ACM has extensively reviewed the evidence, including the intercepted telephone conversations, within the framework of establishing whether there has been a transgression of section 6(1) of the Competition Act. After the report was issued and before a decision was taken by the ACM to impose a fine, the appellants were offered the opportunity to submit their views in writing of that report, of which opportunity they have availed themselves.
Finally, the Administrative High Court for Trade and Industry finds that a sufficient case has been made out that the information about the alleged price-fixing arrangements could not in reason have been obtained by the ACM in a different, less intrusive way, since such arrangements are not, as a rule, committed to paper. In the judgment of the Provisional Measures Judge of the Regional Court of The Hague of 26 June 2009 (ECLI:NL:RBSGR:2009:BJ0047), to which the parties also refer, the Provisional Measures Judge in a matter comparable with that here in issue gave a provisional decision on the legality of the provision of intercepted telephone conversations by the public prosecution service to the ACM and came to the same finding as regards the proportionality of such provision.
In view of the above, the Administrative High Court for Trade and Industry sees no reason to find that the provision of the intercepted telephone conversations to the ACM based on section 39f of the Judicial Information and Criminal Data Act is contrary to Article 8 of the Convention.
4.7 Within the framework of the care to be taken under section 3.2 of the General Administrative Law Act (Algemene wet bestuursrecht) in preparing a decision, the ACM is obliged to consider the lawfulness of the evidence to be used by it. In paragraphs 180 and following of the decision imposing the fine the ACM has gone into the use of the intercepted telephone conversations in evidence. It considered in so doing whether in obtaining the intercepted telephone conversations the principles of due process had been violated, or whether the rights of the defence had been disregarded. In this connection the ACM stressed that the legislature limited the (active) powers of the ACM to collect data, but not the data which the ACM might receive. The ACM came to the conclusion that there was no ground for it to find that the intercepted telephone conversations provide to the ACM by the public prosecution service should not be used in evidence.
4.8 The arguments presented by [the applicant companies] do not constitute a reason for the Administrative High Court for Trade and Industry to find that this conclusion by the ACM is wrong. It should be stressed in this connection that the ACM was entitled to assume, based on the [Provision of Criminal Records for Purposes Other than Criminal Law Enforcement (Designation) Order (Aanwijzing verstrekking van strafvorderlijke gegevens voor buiten de strafrechtstoepassing gelegen doeleinden (aanwijzing wet justitiële en strafvorderlijke gegevens), that the evidence concerned had been provided to it lawfully. In the present case it concerns provision to an administrative organ. Provisions to administrative organs with a view to the exercise of supervision of compliance with legislation are considered to be standard cases of provision pursuant to chapter IV.4.c of that Order. ...
The circumstance that the ACM itself does not have the competence to intercept telephone conversations does not constitute ground for the finding that the use of the intercepted telephone conversations by the ACM should be considered unacceptable. The Judicial Information and Criminal Data Act provides precisely for the possibility that such data, obtained using coercive measures under criminal procedure (strafvorderlijke dwangmiddelen) may be provided to, among others, administrative organs that do not themselves have the competence to make use of such coercive measures.
Contrary to the argument made by the company I., Port Invest B.V. and Burando Holding B.V., the circumstance that the ACM – in consultation with the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment – had, after having [taken cognisance of transcripts and recordings of intercepted telephone conversations], made a selection from the bulk of the data that were available and provisionally considered relevant by the Information and Investigation Service, does not, in the given situation, lead the Administrative High Court for Trade and Industry to find that the provision took place contrary to the Judicial Information and Criminal Data Act.”
B. Relevant domestic law, Council of Europe instruments and European Union law
24. Reference is made to the statement of facts in Janssen de Jong Groep B.V. and Others v. the Netherlands, no. 2800/16, for a summary of the relevant domestic statutes, delegated legislation and case-law (the latter including the decisions given in that particular case), and the relevant Council of Europe instruments and European Union law.
COMPLAINTS
25. The applicant company complains under Article 8 of the Convention that the exchange between authorities of information obtained by the interception of telephone conversations which was not relevant to the criminal investigation for the purpose of which those telephone conversations were intercepted was not in accordance with the law. In particular, the applicant company complains that:
(a) It was not foreseeable that the NMA was in a position to receive such information;
(b) It was not foreseeable that the NMA could select the information which it wished to receive;
(c) It was not foreseeable that the information could be transmitted to the NMA without any prior knowable weighing of interests;
(d) It was not foreseeable that such weighing of interests could be effected ex post facto by the courts;
(e) There was no provision in law for any weighing of interests by an independent authority prior to transmission (at least, not in the case of information irrelevant to the investigation for the purpose for which it was obtained).
26. The applicant company complains under Article 13 of the Convention that there was no effective remedy available to it capable of preventing the transmission of the information in question to the NMA.
QUESTIONS TO THE PARTIES
1. Which judicial authority (civil and/or administrative) is competent to review the legality of the transfer of intercepted telephone conversations by the prosecutor to the Competition Authority in the light of Article 8 of the Convention?
2. Has there been a violation of the applicant company’s right to respect for its private life and correspondence, contrary to Article 8 of the Convention? More in particular, does the applicable law provide adequate and effective procedural guarantees (see, inter alia, Roman Zakharov v. Russia [GC], no. 47143/06, § 231, ECHR 2015; and Dragojević v. Croatia, no. 68955/11, §§ 78-84, 15 January 2015)?
3. Did the applicant company have at its disposal an effective domestic remedy for its complaints under Article 8 of the Convention, as required by Article 13 of the Convention?
[1]. See Janssen de Jong Groep B.V. and Others v. the Netherlands, no. 2800/16.
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