Burando Holding B.V. and Port Invest v. the Netherlands – 3124/16 and 3205/16
Judgment 16.5.2023 [Section III]
Respect for correspondence
Respect for home
Respect for private life
Transmission and use in competition law proceedings of data lawfully obtained through telephone tapping in criminal investigations: no violation
[This summary also covers the judgments Ships Waste Oil Collector B.V. v. Netherlands, no. 2799/16 and Janssen De Jong Groep B.V. and Others v. Netherlands, no. 2800/16 , 16 May 2023]
Facts – The applicant companies in Janssen De Jong Groep B.V. and Others are engaged in construction and in Ships Waste Oil Collector B.V. and Burando Holding B.V. and Port Invest B.V in the collection of waste liquids from ships in the Rotterdam port region. The cases concern the transmission, by the Public Prosecution service, of data obtained in the context of criminal investigations through telephone tapping, authorised by the investigating judge (rechter-commissaris), to the Netherlands Competition Authority (“NMA”) and their use by that authority in an investigation into the applicant companies’ involvement in price-fixing. Based on the results of that investigation, the applicant companies were fined for breaches of the Competition Act. They brought administrative proceedings against that decision. Although successful before the Regional Court, the Supreme Administrative Court for Trade and Industry quashed the judgment and referred the case back to that court.
(a) Whether there has been an interference – The transmission to the NMA of data obtained in the criminal investigations through the tapping of telephone conversations involving the companies’ employees had constituted an interference with the applicant companies’ rights under Article 8. Since their complaints concerned the transmission of those data, and not their interception – the lawfulness of which had not been disputed -, the Court proceeded on the basis that the data had been obtained through methods compatible with Article 8. As, however, their subsequent transmission had taken place without the applicant companies’ knowledge, the Court considered the standards it had developed in the context of secret surveillance measures were also relevant to the present cases.
(b) Whether the interference was in accordance with the law – The Court replied in the affirmative. The interference had had both a legal basis under Dutch law, namely section 39f of the Judicial and Criminal Data Act (“WJSG”) and had met the foreseeability requirement. In particular, with regard to the latter, the Court found as follows.
As the relevant criminal investigations had still been underway at the time of the transmission of the relevant data, notification could have compromised the criminal investigation, its deployment of covert investigative measures, and an investigation of the applicant companies by the NMA. Therefore, in the circumstances, the transmission had had to take place without the applicant companies’ prior knowledge. Similar to what the Court had held with regard to secret surveillance measures such as interception of communications, the foreseeability requirement in the context at issue could not be taken to mean that the authorities had been obliged to notify the applicant companies that they had been going to transmit criminal data to the NMA.
There was also a difference between the situation of covert investigative measures in the Court’s case-law and the interference by the transmission of data in the present cases which had been derivative of an interference which had already provided for safeguards against arbitrariness and which the Court assumed had been in accordance with Article 8. For that reason, the power to transmit the data that had been obtained by that interference had not been “unfettered”. Nevertheless, like in covert surveillance cases, the Court reviewed whether the applicable domestic law, including the way in which it had been interpreted by the domestic courts, had given an adequate indication to the applicant companies as to the scope and manner of exercise of the authorities’ discretion to transmit the data.
The domestic legal framework set out the limits of and the conditions for the transmission of criminal data and provided clear guidance for the exercise of the power to transmit. Furthermore, on the basis of section 39f of the WJSG, it was sufficiently foreseeable that the NMA, which was charged with the enforcement of the Competition Act, had been authorised to receive criminal data from the Public Prosecution Service. The authorisation to receive those data was not in some way dependent on the investigative powers of the receiving entity. It also followed from the Supreme Administrative Court for Trade and Industry’s considerations that the WJSG precisely provided for the possibility, under strict conditions, that data obtained through coercive measures in criminal proceedings might be transmitted to defined other public authorities that did not have themselves the competence to use such coercive measures.
In addition, in view of the definition of criminal data in the WJSJ, its legislative history and the relevant domestic courts’ interpretation in the present cases of that definition, confirmed by the Supreme Court’s case-law, it had been sufficiently foreseeable that data not used for criminal prosecution could also be transmitted.
Section 39f of the WJSG did not specify in which form the required balancing test should be carried out. However, the public prosecutor’s decision to transmit criminal data was qualified under the domestic legal framework as a factual act, and not as a decision by an administrative body, involving a legal act under public law, which required written reasoning. In this regard, the present cases were distinguishable from Dragojević v. Croatia, where formal requirements had been explicitly provided for in the relevant domestic law. The Court thus saw no reason to question the Supreme Administrative Court for Trade and Industry’s conclusion that it had to carry out its own balancing test when assessing whether the evidence obtained had been lawfully transmitted to the NMA that had used it in the proceedings for the imposition of an administrative fine and, in that context, whether the transmission of the data concerned had been in compliance with Article 8. That approach followed from the Supreme Court’s case-law.
In so far as the applicant companies in Burando Holding B.V. and Port Invest B.V had argued that some of the data transmissions had taken place when those data should have already been destroyed, in view of the applicable domestic law, the Court saw no reason to question the Supreme Administrative Court’s conclusion that that had not been the case.
Consequently, the applicable law had given the applicant companies an adequate indication as to the circumstances in which and the conditions on which the Public Prosecution Service had been empowered to resort to the impugned data transmission. The exploratory interactions between that service and the NMA had been sufficiently foreseeable as part thereof. Within the relevant domestic legal framework, the two authorised public authorities, who had separate tasks and expertise, would need to coordinate to identify the data relevant for the compelling general interest required under section 39f for its transmission. There was no indication that anyone other than the Public Prosecution Service had been in charge of the selection of data that the NMA had been able to access or that it had accessed more information than necessary for the authorised purpose.
(c) Whether there was a legitimate aim for the interference – Having regard to its previous findings in competition-law cases, the Court found that the data transmission had served the legitimate aim of protecting the economic well-being of the country.
(d) Whether the interference was necessary in a democratic society – As to the question whether there had been adequate safeguards to avoid abuse in the cases at hand, as already noted, the domestic legal framework set out the limits of and the conditions for the transmission of criminal data as well as clear guidance for the exercise of that power. Further, it followed from the WJSG’s legislative history that the existence of a “compelling general interest” was explicitly linked to the legitimate aims listed in Article 8 § 2.
There was also an extensive ex post facto judicial oversight in place. The applicant companies had been able to challenge the lawfulness and Convention compliance of the data transmission in the administrative proceedings concerning the NMA’s decision to impose a fine. In addition, the civil courts were competent to rule on the lawfulness of the transmission in tort proceedings. A finding of unlawfulness in the context of such proceedings could have prevented the NMA from using the data. The applicant companies, however, had not availed themselves of that remedy.
Given the nature and extent of the interference, in combination with the safeguards in the domestic legal framework, including the precautions taken when communicating the data obtained through interception of communications to another public authority, the Court was satisfied that the system was adequately capable of avoiding abuse of power and found that Article 8 did not require ex ante authorisation by a court in the context at issue.
As to the proportionality of the interference, the Court found that the domestic courts had carefully examined the facts, assessed the lawfulness of the transmission under the WSJG and had conducted an adequate balancing exercise under Article 8 between the interests at stake. The applicant companies had not submitted any arguments as to why the balance struck by the domestic authorities had not been fair in their case.
In conclusion, the domestic authorities had given relevant and sufficient reasons to justify the necessity and proportionality of the data transmission for the purposes of enforcement of competition law.
Conclusion: no violation (four votes to three).
The Court also found, unanimously, that there had been no violation of Article 13 taken in conjunction with Article 8, as the applicant companies had had an effective remedy at their disposal to raise their complaints.
(See also Dragojević v. Croatia, 68955/11, 15 January 2015, Legal Summary; Big Brother Watch and Others v. the United Kingdom [GC], 58170/13 et al, 25 May 2021, Legal Summary; Naumenko and SIA Rix Shipping v. Latvia, 50805/14, 23 June 2022)