I correctly predicted that there's no violation of human rights in JANSSEN DE JONG GROEP B.V. AND OTHERS v. THE NETHERLANDS.

Information

• Judgment date: 2023-05-16
• Communication date: 2018-12-13
• Application number(s): 2800/16
• Country:   NLD
• Relevant ECHR article(s): 8, 8-1, 8-2, 13
• Conclusion:
  No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
  No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life
  Article 8-1 - Respect for correspondence)
• Result: No violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.857827
• Prediction: No violation

• Consistent

Communication text used for prediction

1.
A list of the applicants is set out in the appendix.
All applicants are limited liability companies (besloten vennootschappen met beperkte aansprakelijkheid) incorporated under Netherlands law.
They were initially represented by Mr G. van der Wal, then by Ms L.Y.M.
Parret, and currently by Ms M.C.
van Heezik; all are lawyers practising in Brussels.
2.
The applicants constitute a group of companies that are active in various sectors of the building industry.
A.
The circumstances of the case 3.
The facts of the case, as submitted by the applicant companies, may be summarised as follows.
1.
Background to the case 4.
Around 2007 suspicions arose that officials had been bribed by building contractors desirous of winning government contracts for infrastructure projects.
The National Police Internal Investigations Department (Rijksrecherche) began an investigation under the code name “Cleveland”, which implicated the applicant companies as suspects.
From 2008 onwards employees of the applicant companies were subjected to interception of their telephone conversations.
The interception orders were authorised by the investigating judge (rechter-commissaris).
2.
The transfer of criminal data 5.
The National Police Internal Investigations Department identified certain intercepted telephone conversations as irrelevant to their own investigation, but of potential interest to the Netherlands Competition Authority (Nederlandse Mededingingsautoriteit, “NMA”) in that they suggested that the building contractors concerned might have been engaged in unlawful price-fixing.
On various dates in July 2008 officials of the National Police Internal Investigations Department gave officials of the Netherlands Competition Authority access to their files with a view to identifying information of potential relevance to investigations to be initiated by the latter.
6.
On 19 August 2008 the public prosecutor (officier van justitie) transmitted a CD bearing recordings of intercepted telephone conversations on the understanding that transmission was, at this stage, for information purposes only.
No further use would be permitted except with the permission of the public prosecutor or the National Police Internal Investigations Department officer in charge of the corruption investigation.
7.
On 16 December 2008 the public prosecutor wrote to the NMA in the following terms: “Having regard to your fax message of 15 December 2008 I give you permission for the use of the information yielded by the ‘Cleveland’ investigation (being carried out by the National Police Internal Investigations Department under my supervision) for the purpose of your investigation(s) into violation of the Competition Act (Mededingingswet).” 8.
On 23 December 2008 an official of the NMA sent the National Police Internal Investigations Department a list of search terms with which to identify telephone conversations relevant to the NMA’s investigations.
9.
On 15 January 2009 a meeting took place between NMA officials and officers of the National Police Internal Investigations Department during which arrangements were made for information sharing; this included granting the NMA access to the database in which the intercepted telephone conversations were kept that had already been handed over.
10.
On 26 January 2009 the applicant companies’ counsel wrote to the Board of Procurators General (College van procureurs-generaal) asking for confirmation that the public prosecution service (openbaar ministerie) had not handed over information to the NMA that the NMA could not have obtained using its own powers of investigation, and would not hand over such information in the future.
He relied on section 39f(1) of the Judicial Information and Criminal Data Act (Wet justitiële en strafvorderlijke gegevens) (see paragraph 37 below).
11.
On 10 February 2009 a meeting took place between functionaries of the applicant companies and NMA officials in which the latter promised to inform the former when data secured by the National Police Internal Investigations Department during its search would be handed over to the NMA.
The NMA confirmed this promise by letter of 11 February 2009.
12.
On 18 February 2009 the applicant companies’ counsel, who had been present also, sent the NMA a fax letter confirming that the applicant companies had agreed to the handover and use only of such information as the NMA itself could obtain using its own powers of investigation and disputed the existence of a “compelling general interest” such as would justify the handover of other information in pursuance of section 39f(1) of the Judicial Information and Criminal Data Act.
On 23 February 2009 the NMA replied to the effect that the applicant companies would be informed when information obtained by the National Police Internal Investigations Department was handed over to the NMA but that in the interest of the investigation no information would be given regarding the content of the NMA’s case file.
13.
On 13 March 2009 the Board of Procurators General replied that, with regard to standard cases of this nature, it had delegated the power of decision to the heads of the public prosecution services of the various courts (hoofden van de parketten) on the basis of the Provision of Criminal Records for Purposes Other than Criminal Law Enforcement (Designation) Order (Aanwijzing verstrekking van strafvorderlijke gegevens voor buiten de strafrechtspleging gelegen doeleinden; see paragraph 43 below).
Should an action of the Board of Procurators General itself be required, it would be taken at the appropriate time.
Confirmation as requested could therefore not be given.
14.
On 12 May 2009 the applicant companies’ counsel wrote to the Governors (Raad van Bestuur) of the NMA, the Chief Public Prosecutor and the Board of Procurators General stating that it had appeared that the NMA had had intercepted telephone conversations and/or criminal data at its disposal during questioning of employees of the applicant companies.
He announced the intention to bring civil proceedings before the Provisional Measures Judge (voorzieningenrechter).
15.
On 15 May 2009 the NMA wrote to the applicant companies’ counsel referring to the letter of 11 February 2009 (see paragraph 11 above) informing them that one of the public prosecutors supervising the National Police Internal Investigations Department investigation had given permission by fax on 13 February 2009 for the handover of information secured by the National Police Internal Investigations Department during its search of the applicant companies’ premises.
16.
On 28 May 2009 the public prosecutor wrote to the applicant companies’ counsel stating that information obtained in the course of the criminal investigation against the applicant companies had been transferred to the NMA; this had concerned both information which the NMA could have obtained by using its own powers and information falling outside that scope.
17.
On 20 August 2009 an officer of the National Police Internal Investigations Department handed over two identical CDs with 99 audio files of intercepted telephone conversations to the NMA.
3.
Civil proceedings before the Provisional Measures Judge concerning the legality of the transfer of criminal data 18.
On 27 May 2009 the applicant companies summoned the Netherlands State – specifically, the Ministry of Justice (Ministerie van Justitie) as the party responsible in civil proceedings for the Board of Procurators General and the public prosecution service, and the Ministry for Economic Affairs (Ministerie van Economische Zaken) as the party responsible in civil proceedings for the NMA – before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague, civil division, seeking a provisional order, firstly, to the NMA to return the intercepted telephone conversations to the public prosecution service and desist from making use of them, and secondly, to the public prosecution service to desist from transmitting the intercepted telephone conversations to the NMA or otherwise inform the NMA of their content.
As relevant to the case before the Court, the applicant companies argued that Article 8 of the Convention was violated in that the transmission of those telephone conversations to the NMA was not “in accordance with the law”: firstly, the formulation of section 39f(1) of the Judicial Information and Criminal Data Act was insufficiently precise for such transmission to be “foreseeable”; secondly, the interference – the actual interception – had been related to a criminal prosecution, not to the enforcement of competition law; and thirdly, the legislature had actually denied the NMA the power to intercept telephone conversations.
19.
Having held a hearing on 12 June 2009, the Provisional Measures Judge gave judgment on 26 June 2009 dismissing the applicant companies’ requests (ECLI:NL:RBSGR:2009:BJ0047).
His reasoning, as relevant to the case before the Court, included the following: “4.9.
It is established that statutory provision for the transmission by the Board of Procurators General to third parties of information obtained in a criminal investigation is made in the Judicial Information and Criminal Data Act.
In my provisional view, it is for the present sufficiently established that ... the transmission of the intercepted telephone conversations to the NMA with a view to further investigation by the NMA and with a view to the enforcement of section 6(1) of the Competition Act, is necessary for the economic well-being of the Netherlands.
I consider that this interest carries more weight than the interest of protecting the privacy of [the applicant companies].
True, [the applicant companies] have disputed that the interference with their interest resulting from the transmission of the telephone conversations to the NMA is proportionate to the interest of the economic well-being of the Netherlands, but they have failed to make out a sufficiently well-reasoned case for the opposite view.
Nor has a sufficiently convincing prima facie case been made out that the information concerning the alleged price-fixing between building contractors among themselves could reasonably have been obtained in a different, less disadvantageous way, given that such agreements tend as a rule not to be committed to paper.
The above leads me to conclude that the transfer of the intercepted telephone conversations by the Public Prosecution Service based on section 39f(1) of the Judicial Information and Criminal Data Act is not incompatible with Article 8 of the Convention.” 4.
The decision by the NMA to impose fines and the administrative review proceedings 20.
On 27 January 2009 NMA officials conducted a search of the applicant companies’ premises, in the course of which administrative records were seized.
Two NMA reports, of 17 December 2009 and 25 February 2010 respectively, found that the applicant companies, together with three other companies, were accountable for an infringement of section 6(1) of the Competition Act.
These reports quoted extensively from transcripts of telephone conversations.
21.
On 14 June 2010 the applicant companies’ counsel submitted written comments (zienswijze) in advance of a hearing to be held on 15 April 2011.
As a preliminary issue, it was argued that the transmission, by the public prosecution service to the NMA, of telephone conversations intercepted in the framework of the criminal investigation into corruption constituted a violation of Article 8 of the Convention.
As to the merits, the applicant companies offered alternative explanations for their actions, arguing among other things that the other companies allegedly involved in the price-fixing were not actual competitors but – being much smaller than they – operated on different markets, so that commercial competition was not affected.
22.
A hearing took place before the Governors of the NMA on 21 June 2010 in which the applicant companies and the other companies allegedly involved in the price-fixing were represented.
The applicant companies again protested against the use made of the recorded telephone conversations; in the alternative, even if proven, any price-fixing was to be blamed on two “rogue employees” of a minor subsidiary company, acting beyond their authority on a relatively small scale, so that it would be out of all proportion to hold the applicant companies to blame.
23.
The Governors of the NMA gave their decision on 29 October 2010.
The decision quoted extensively from the intercepted telephone conversations.
As relevant to the case, it included the following reasoning: “103.
The Board of Procurators General can only have given its permission after having considered that the transmission of the intercepted telephone conversations to the NMA is lawful.
In principle, the Governors conform to the view of the Board of Procurators General.” and “The participating enterprises [i.e.
the applicant companies and the other companies allegedly involved in the price-fixing] have also argued that the legislature made a conscious decision not to grant powers to intercept telephone conversations to the NMA, and that the transmission by the public prosecution service of intercepted telephone conversations to the NMA negates this restriction of the latter’s powers.
The Governors confirm that the legislature considered the maintenance of competition law insufficient ground to grant the NMA the power to tap telephones.
The participating enterprises fail to see, however, that the legislature has limited the powers of the NMA but not the data which the NMA may receive.
It is beyond dispute that the NMA has in no way influenced the circumstances in which the public prosecution service has telephone conversations intercepted.
There is therefore no question of any indirect power of the NMA to intercept telephone conversations or cause this to be done.
The fact that the public prosecution service has, on its own initiative, supplied data obtained in a criminal investigation to the NMA is unconnected to the powers which the legislature has granted to the NMA.” A fine was imposed on the applicant companies in an amount of 3,000,000 euros (EUR), for which they were jointly and severally liable.
The three other companies involved in the case were jointly fined EUR 100,000.
24.
The applicant companies lodged a written objection (bezwaarschrift).
Relying on the Court’s case-law, in particular Malone v. the United Kingdom, 2 August 1984, Series A no.
82, and Valenzuela Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions 1998‐V, they argued that the transmission of data obtained in the criminal investigation to the NMA had not been “foreseeable” in the absence of a clear basis in domestic law.
Relying on Sanoma Uitgevers B.V. v. the Netherlands [GC], no.
38224/03, 14 September 2010, they further submitted that the assessment when to transmit such data should be entrusted not to the public prosecution service – which in terms of procedure was a party ‐ but to an independent tribunal.
The evidence constituted by the intercepted telephone conversations should therefore not be admitted.
As to the merits of the case, they submitted that the sanction was in any event disproportionate.
25.
The NMA’s Governors lodged a written statement of defence in advance of a hearing to be held before the NMA’s Advisory Board on Objections (Adviescommissie bezwaarschriften).
As relevant to the case before the Court, they argued that no problem of foreseeability within the meaning of Article 8 § 2 arose, since the telephone conversations had been intercepted in the course of a criminal investigation and in conformity with the law in force; and that even if they had been transmitted to the NMA unlawfully by the public prosecution service, the NMA was not prevented from using them as evidence of wrongdoing.
26.
In its advisory opinion of 7 October 2011, the Advisory Board on Objections expressed the view that the telephone conversations had been lawfully intercepted, it had been for the public prosecution service to review the lawfulness of the transfer of the intercepted telephone conversations to the NMA and there had been no reason for the NMA to question this review.
Since, moreover, the interest of maintaining competition law constituted a “compelling general interest”, the decision of the NMA’s Governors had not violated Article 8 of the Convention.
The Advisory Board recommended that the Governors amend the reasoning of their decision on points not relevant to the case before the Court.
27.
The Governors of the NMA gave their decision on 8 March 2012.
They dismissed the applicant companies’ objection and confirmed their decision of 29 October 2010, supplementing their reasoning on points not relevant to the case before the Court.
5.
Appeal proceedings before the Rotterdam Regional Court 28.
The applicant companies lodged an appeal (beroep) with the Rotterdam Regional Court, Administrative Law Division (sector bestuursrecht).
Alleging a violation of Article 8 of the Convention, they again argued, relying on Weber and Saravia v. Germany (dec.), no.
54934/00, ECHR 2006‐XI and Kennedy v. the United Kingdom, no.
26839/05, 18 May 2010 in addition to Malone and Valenzuela Contreras, that the transmission of the intercepted telephone conversations had not been “foreseeable”, and again relying on Sanoma Uitgevers B.V., that prior review by an independent court was required.
They further submitted that it was irrelevant that an investigating judge had given permission for the telephone conversations to be intercepted, since the investigating judge’s permission had been given for the purpose of an investigation into a serious crime under ordinary criminal law not for the purpose of transmission of the resulting information to the NMA.
They also alleged a violation of Article 13 of the Convention, pointing to the absence of any prior judicial review and arguing in addition that the policy rules governing the transmission of criminal data by the public prosecution service to other parties (see paragraphs 43 and 44 below) were insufficient.
They further argued that the intercepted telephone conversations should not be admitted in evidence and that in any case there had been no price-fixing.
29.
In their statement of defence, the Governors of the NMA quoted extensively from the intercepted telephone conversations.
They submitted that the transmission of the intercepted telephone conversations to them had been sufficiently foreseeable, being provided for by section 39f(1) of the Judicial Information and Criminal Data Act, and that judicial review had been provided by the Provisional Measures Judge (see paragraphs 18 and 19 above).
30.
Having held a hearing on 21 January 2013, the Regional Court gave judgment on 13 June 2013, declaring the appeal well-founded and overturning the decision of the Governors of the NMA.
It accepted that section 39f(1) of the Judicial Information and Criminal Data Act provided a sufficient statutory basis.
However, “6.12 [despite giving permission], the public prosecutor has not, in so doing, explained what compelling interest was served by providing the data, let alone why the provision was necessary for that purpose.
No compelling general interest is apparent from the request of [the NMA], which as recipient of this information requires a ground to be allowed to receive and use the information requested.
Finally, it does not appear that the public prosecutor stopped to consider whether the provision of the data met the principles of proportionality and subsidiarity.
6.13 The Regional Court is of the view that – as the provisional measures judge of the Regional Court of The Hague assumed in his judgment of 26 June 2009 ([ECLI:NL:RBSGR:2009:BJ0047]) – an infringement of section 6 of the Competition Act can in certain circumstances constitute an interest falling under section 39f of the Judicial Information and Criminal Data Act.
The finding contained in paragraph 4.9 of that judgment that providing the telephone conversations to the NMA with a view to further investigations by the NMA and with a view to the enforcement of section 6(1) of the Competition Act is necessary in the interest of the economic well-being of the Netherlands does not alter the fact that there has not, in the present case, been any weighing of interests by the public prosecutor himself, knowable and reviewable by the courts, that has led to the conclusion that it is necessary to provide the data because of a compelling general interest.
6.14.
Since there is no knowable, reviewable weighing of interests by the public prosecutor, the Regional Court is of the view that [the NMA] was not entitled in this case to use the intercepted telephone conversations as evidence, because otherwise justice would not be done to the requirements of Article 8 of the Convention, which are precisely the requirements of which section 39 of the Judicial Information and Criminal Data Act is intended to ensure compliance.
Section 39f of the Judicial Information and Criminal Data Act sets requirements in the Netherlands context for the procedure for providing criminal data to third parties in order to protect the privacy of those about whom information has been collected.
Since there has been no knowable weighing of interests, compliance with that legal provision cannot be reviewed.
The consequence of this is that the person [concerned by the information provided] cannot determine why the interference with his privacy is justified.
This weighs all the more heavily in the balance in the present case, since it concerns the use of a special means of investigation, namely telephone interception, for which an investigating judge must give specific permission, directed towards the criminal act of which the person whose telephone conversations it is desired to intercept is suspected.
[The NMA] should, before making use of this information, have satisfied itself that the public prosecutor was of the view that there was a compelling social interest at stake, and why, and why provision [of the resulting data] was necessary for that purpose.
In finding that in these circumstances [the NMA] was not entitled to make use of this evidence the Regional Court further takes into account the fact that [the NMA] has no powers of its own to gather evidence by intercepting telephone conversations.
This was a conscious choice made by the legislature.” Absent any evidence other than the intercepted telephone conversations, it followed that the NMA ought not to have found that the applicant companies had committed the transgression imputed to them and hence ought not to have imposed the fines complained of.
6.
Further appeal proceedings before the Administrative High Court for Trade and Industry 31.
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, which had indeed taken place in the present case.
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 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).
32.
The ACM’s further appeal was joined by the Netherlands State and by the Board of Procurators General.
33.
The applicant companies lodged a cross-appeal (incidenteel hoger beroep) on the grounds that the Regional Court had failed to find that the intercepted telephone conversations forwarded to the NMA, being irrelevant to the “Cleveland” investigation, were not properly part of any criminal case file and therefore not “criminal data” to be provided to another entity in accordance with section 39f(1) of the Judicial Information and Criminal Data Act; that to construe “compelling general interest” as used in that provision so as to include the enforcement of competition law by administrative-law means constituted an over-broad interpretation of that expression, the more so since section 39f of the Judicial Information and Criminal Data Act did not provide for granting any other entity access to data before they were actually provided to that entity; and that absent particular urgency, a “compelling general interest” could not normally be established without a prior conviction by a criminal court.
In addition, they revived the grounds of appeal presented before the Regional Court.
34.
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.
35.
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:2015:193).
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 companies’ appeal.
As relevant to the case before the Court, its reasoning included the following: “4.9.
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 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 [sc.
by the NMA], 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 or any other treaty provision.
4.10.
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 provided to the ACM by the public prosecution service should not be used in evidence.
4.11.
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), see paragraphs 43 and 44 below], 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 applicant companies], the circumstance that the ACM had access to the bulk of the data that were available and provisionally considered relevant by the public prosecution service, on the basis of which a selection was made, 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 1.
The Personal Data Protection Act 36.
As relevant to the case before the Court, the Personal Data Protection Act (Wet bescherming persoonsgegevens) at the relevant time provided as follows: “22(1).
The prohibition on processing personal data relating to criminal law matters referred to in section 16 does not apply if the processing is carried out by bodies that are responsible pursuant to the law for applying criminal law or by controllers who have acquired them pursuant to the Police Data Act or the Judicial Information and Criminal Data Act.” and “23(1).
Without prejudice to [inter alia, section 22, which governs the transmission to others of data relating to criminal law matters], the prohibition on the processing of personal data as referred to in section 16 [inter alia, criminal data] shall not apply to the extent that: ... e. this is necessary in view of a compelling public interest, appropriate safeguards have been put in place to protect privacy (persoonlijke levenssfeer), and it is provided for by law or the [Personal Data Protection] Authority (College Bescherming Persoonsgegevens) has granted an exemption.
...” 2.
The Judicial Information and Criminal Data Act (a) Relevant provision 37.
As relevant to the case before the Court, the Judicial Information and Criminal Data Act (Wet justitiële en strafvorderlijke gegevens) provides as follows: Section 9 “1.
In so far as it is necessary with a view to a compelling public interest and for a proper discharge of the duties by the person to whom judicial information is transmitted, persons or authorities charged with a public duty may be designated by order-in-council (algemene maatregel van bestuur) to whom judicial information may be provided.
Further provisions may be given governing their processing and further processing.
...” Section 39f “1.
The Board of Procurators General (College van procureurs-generaal) can ... in so far as it is necessary in view of a compelling general interest, provide criminal data to persons or official bodies (instanties) for the following purposes: a. preventing and investigating crime; b. maintaining order and security; c. overseeing compliance with regulations; d. taking a decision under administrative law; e. considering the need to take a measure affecting someone’s legal position or a disciplinary one; f. giving aid to victims and others involved in a crime.
2.
The Board of Procurators General can only provide criminal data to persons or official bodies as referred to in the first paragraph to the extent that those data, for those persons or official bodies: a. are necessary in view of a compelling public interest or the determination, exercise or defence of a right in law; and b. are provided in such a form that traceability to persons other than the person concerned is, in reason, prevented.
3.
[Section 9(1), second sentence] shall be applicable by analogy.” (b) Legislative history 38.
Section 39f of the Judicial Information and Criminal Data Act was enacted pursuant to a transitional provision of the Personal Data Protection Act, which required a lex specialis for the transmission of personal criminal data.
39.
The following is taken from the Explanatory Memorandum (Memorie van Toelichting) to the Bill that led to the enactment of the Judicial Information and Criminal Data Act (Lower House of Parliament, parliamentary year 2002-2003, 28 886, no.
3): “When the public prosecution service has a criminal case before it to consider, the compelling general interest may require that it not limit itself to presenting the case to the court or not as the case may be, but also that others in the entourage of the presumed perpetrator be informed.
A public prosecutor may be considered suited par excellence to weigh the interest of the suspect and the compelling general interest against each other carefully, then to decide on the basis of that weighing of interests whether it is necessary that the public prosecution service provide criminal information to a third party and, if so, which third party has an interest in that information.” (page 5) and “In weighing these interests the public prosecution service should also, considering the need for the provision [of data] which it must be able to demonstrate, involve the principle of proportionality and the principle of subsidiarity.
In addition to weighing these interests, the public prosecution service should consider whether the requested provision of information, being a form of further processing of the requested data, is not incompatible with the aim for which these were added to the criminal file at the time, namely the prosecution of one or more criminal acts.
As a final matter, the receiver of the information should have a basis on which to be permitted to receive the information requested.” (pages 7-8) and “Section 23 (1)(e) of the Personal Data Protection Act also requires that provision of particular personal data based on the present ground [i.e.
a compelling public interest] be permitted only if suitable guarantees are offered to protect private life.
The proposed section 39f(2) and (3) therefore provides these guarantees.
The first such guarantee is set out in sub-paragraph (b) of the second paragraph of that section and imposes on the public prosecution service to provide the criminal data in such a form that they cannot reasonably be traced to persons other than the one to whom those data relate.
It cannot be that public authority (de overheid), by meeting the request of a citizen, causes nuisance (ongemak) to non-suspects who have been involved in the criminal case.
The second guarantee is that, unless otherwise provided by a legal provision, criminal data that have been provided to a third party may not be used by that third party for any other purpose than that for which they have been provided.
This guarantee is laid down in the third paragraph of the proposed section 39f.” (page 8) and “It is not considered necessary to create a right for the third party requesting the data and the person concerned a right to be heard.
The reason is that the provision [of the data] by the public prosecution service to a third party fits within the definition of the purpose for which the data have been collated by the public prosecution service and the person concerned is aware of the fact that the public prosecution service gives information with a view to a compelling general interest, either of its own motion or at the request of a third party, about the criminal acts which he has committed.
That does not change the fact that it can be indicated in certain circumstances, within the framework of a careful weighing of interests, that the public prosecution service offers the person concerned the opportunity to make his views known about the intended provision of information.
That is to be considered by the public prosecution service on a case-to-case basis.” (page 13) (c) Relevant domestic case-law 40.
In its judgment of 21 December 2007, ECLI:NL:HR:2007:BB9133, the Supreme Court held that section 39f of the Judicial Information and Criminal Data Act did not oblige the Board of Procurators General to provide criminal data, but gave it discretion to weigh the interests involved in the balance.
In the particular case, the Board of Procurators General had refused on privacy grounds to provide data to a private party for use as evidence in civil proceedings; the Court of Appeal had rightly limited its review to the lawfulness of that refusal instead of substituting its own substantive assessment for that of the Board of Procurators General.
41.
In its judgment of 20 April 2012, ECLI:NL:HR:2012:BV3436, the Supreme Court held that a public prosecutor’s factual act of providing criminal data to a private party constituted behaviour the lawfulness of which could be assessed ex post facto and independently by the civil courts.
It held in addition that section 39f of the Judicial Information and Criminal Data Act did not require the provision of data from a criminal file for the purpose of assisting the victims of crime to be limited to criminal acts that were actually prosecuted, since a criminal file could concern facts in respect of which no prosecution was brought.
In this case the Supreme Court followed the advisory opinion of the Prosecutor General of 3 February 2012 (ECLI:NL:PHR:2012:BV3436), in which the character of the act of transmission of criminal data by a prosecutor was explained (points 3.5 and 3.6).
42.
In a series of judgments delivered on 24 February 2017 (ECLI:NL:HR:2017:286; ECLI:NL:HR:2017:287; ECLI:NL:HR:2017:288), the Supreme Court held that the general duty of Government bodies to provide information to the Tax Inspector when so requested (section 55 of the General State Taxes Act (Algemene wet inzake rijksbelastingen)) did not constitute a statutory basis sufficient for purposes of Article 8 of the Convention for the provision to the tax authorities of data obtained through the systematic use of speed cameras equipped for automatic number plate recognition.
3.
The Provision of Criminal Records for Purposes Other than Criminal Law Enforcement (Designation) Order 43.
The Board of Procurators General has delegated the decision to forward information from criminal case files in accordance with section 39f of the Judicial Information and Criminal Records Act in standard cases (standaardgevallen) to the Chief Advocates General (hoofdadvocaten-generaal) to the Courts of Appeal (gerechtshoven) and the Chief Public Prosecutors (hoofdofficieren van justitie) to the Regional Courts (rechtbanken), with the power to subdelegate to individual advocates general and public prosecutors as necessary.
At the relevant time, this delegation was governed by the Provision of Criminal Records for Purposes Other than Criminal Law Enforcement (Designation) Order, published in the Official Gazette (Staatscourant) of 28 January 2008.
This Order provided a framework for the transmission of criminal data that were contained in records of the public prosecution service to persons concerned or third persons for purposes other than criminal law enforcement.
44.
As relevant to the case before the Court, such information might be forwarded to entities including administrative bodies (bestuursorganen) if there was a legal basis (grondslag) for that body to receive such information; if there was no other way for that body to obtain the information that was less intrusive into the privacy of the person concerned (subsidiarity test); and if it is necessary for a purpose defined in section 39f of the Judicial Information and Criminal Records Act (necessity test).
4.
Covenant between the Board of Prosecutors General and the Competition Authority 45.
This Covenant, which was published in the Official Gazette (Staatscourant) of 11 April 2002, no.
70, states firstly that the public prosecution service and the investigation agencies under its command are charged, inter alia, with the investigation and prosecution of criminal offences, and that the Director-General of the Competition Authority is charged with the implementation and enforcement of the competition rules laid down, inter alia, in the Competition Act.
The agreements between the public prosecution service and the Competition Authority set out in the Covenant stemmed from the joint intention to come to a good coordination of investigative activities and to prevent harmful interference of their respective detection and investigation activities in relation to a particular investigation into the building industry.
46.
One of the main aims of the Covenant is for the public prosecution service and the Competition Authority to provide each other, at the request of either body, with information capable of contributing to a successful performance of their respective tasks, to the extent allowed by law and as further elaborated in the Covenant.
It is acknowledged in the Covenant that legal provisions apply to the provision of information by the public prosecution service to the Competition Authority (as well as vice versa).
47.
The Covenant stipulates that information received by one party to the Covenant from the other party is not shared with third parties unless one of the parties is under a statutory obligation to do so.
5.
The Code of Criminal Procedure 48.
As relevant to the case before the Court, the Code of Criminal Procedure (Wetboek van Strafvordering) at the relevant time provided as follows: Article 67 “1.
An order for detention on remand can be issued in case of suspicion of: (a) an indictable offence (misdrijf) which, according to its legal definition, carries a sentence of imprisonment of four years or more; (b) one of the indictable offences defined in Articles 132, 138a, 138b, 139c, 139d §§ 1 and 2, 161sexies § 1 under 1o and § 2, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 300 § 1, 321, 323a, 326c § 2, 350, 350a, 351, 395, 417bis and 420quater of the Criminal Code (Wetboek van Strafrecht); (c) one of the indictable offences defined in: - section 122(1) of the Animals (Health and Welfare) Act (Gezondheids- en welzijnswet voor dieren); - section 175(2), part b, or (3) taken together with (1), of the 1994 Road Traffic Act (Wegenverkeerswet 1994); - section 30(2) of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag); - section 52, 53(1) and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst); - section 31 of the Betting and Gaming Act (Wet op de kansspelen); - section 11(2) of the Opium Act (Opiumwet); - section 55(2) of the Weapons and Ammunition Act (Wet wapens en munitie); - sections 5:56, 5:57 and 5:58 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer).
...” Article 126l “1.
In case of suspicion of an offence referred to in Article 67 § 1 which – in view of its nature or its connection with other offences committed by the suspect ‐ constitutes a serious breach of the legal order, the public prosecutor may, if the investigation urgently so requires, order an officer with powers of investigation ... to record private [conversations] with a technical device.
... 4.
The order can only be issued after written authorisation has been given by the investigating judge on the request of the public prosecutor.
The authorisation concerns all elements of the order.
... 5.
The order can only be given for a maximum period of four weeks.
It may be prolonged for a period of four weeks at a time.
6.
... As soon as the conditions set out in the second sentence of the second paragraph [of this Article] are no longer fulfilled, the public prosecutor shall direct that the execution of the order be ended.
7.
In case of urgent necessity, the authorisation of the investigating judge, referred to in the fourth and sixth paragraph [of this Article], may be given orally, unless the second sentence of the second paragraph is applied [i.e.
the authorisation of the investigating judge is dispensed with altogether if the investigation so requires as a matter of urgency and the crime in issue carries a maximum sentence of more than eight years’ imprisonment].
In that case the investigating judge shall draw up an authorisation in writing within three days.
8.
A written record (proces-verbaal) of the recording [of private conversations] shall be drawn up within three days.” Article 126m “1.
In case of suspicion of an offence referred to in Article 67 § 1 which – in view of its nature or its connection with other offences committed by the suspect ‐ constitutes a serious breach of the legal order, the public prosecutor may, if the investigation urgently so requires, order an officer with powers of investigation (opsporingsambtenaar) to record telecommunications with a technical device.
2.
Telecommunication is, under this provision, to be understood as a communication not intended for the general public, taking place via a public communication network or by use of public telecommunication services.
3.
The order for recording telecommunications shall be in writing and contain: a. the offence and, if known, the name or otherwise a precise as possible indication of the suspect; b. the facts or circumstances from which it appears that the conditions set out in the first paragraph are fulfilled; c. the number with which the individual user of telecommunication [services] is identified as well as, insofar as known, the name and address of the user; d. the term of validity of the order.
4.
Article 126l §§ 4-8 [of the CCP] shall apply by analogy.” 6.
The General Administrative Law Act 49.
As relevant to the case before the Court, the General Administrative Law Act (Algemene wet bestuursrecht) provides as follows: Section 5:11 “The expression ‘supervising official’ (toezichthouder) means: a person charged by or pursuant to a legal provision with supervising compliance with the prescriptions of a particular legal provision.” Section 5:13 “A supervising official shall make use of his powers only in so far as that is reasonably necessary for the execution of his duty.” Section 5:16 “A supervising official shall be empowered to demand the surrender of information (inlichtingen te vorderen).
Section 5:17 “1.
A supervising official shall be empowered to demand access (inzage) to business information (zakelijke gegevens) and documents.
2.
He shall be empowered to make copies of such information and documents.
3.
If the copies cannot be made in situ, he shall be empowered to take the information and documents with him for a short time, against the delivery of a receipt.” Section 5:20 “1.
Everyone shall be obliged to provide to a supervising official, within the reasonable time-limit set by him or her, all cooperation which he can in reason require in the exercise of his or her duties.
2.
They who, by dint of their office, profession or a statutory provision, are under an obligation of secrecy can refuse their cooperation to the extent that this flows from their duty of secrecy.” 7.
The Competition Act 50.
As relevant to the case before the Court, the Competition Act provides as follows: Section 6 “1.
The following shall be prohibited: all agreements between enterprises, decisions by associations of enterprises and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the Netherlands market.
... 3.
The provisions of paragraph 1 shall, however, be inapplicable in the case of any agreement or category of agreements between enterprises, any decision or category of decisions by associations of enterprises, any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the enterprises concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such enterprises the possibility of eliminating competition in respect of a substantial part of the products in question.
4.
An enterprise or association of enterprises that invokes the third paragraph shall prove that that paragraph is complied with.” Section 56 “1.
In case of transgression of section 6(1) ... the Board of Governors can impose on the natural or legal person to whom the transgression can be imputed: (a) a fine; ...” Section 57 “1.
The fine referred to in section 56(1) ... shall amount to no more than 450,000 euros or, if it concerns an enterprise or association of enterprises and the resulting sum is higher, no more than 10% of the turnover of the enterprise or, as the case may be, the collective turnover of the associations making up the association of enterprises, in C. Relevant Council of Europe instruments 51.
The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (CETS No.
108) sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors.
It reads: Article 8 – Additional safeguards for the data subject “Any person shall be enabled: Article 9 – Exceptions and restrictions “1.
No exception to the provisions of Articles 5, 6 and 8 of this convention shall be allowed except within the limits defined in this article.
2.
Derogation from the provisions of Articles 5, 6 and 8 of this convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: Article 10 – Sanctions and remedies “Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.” 52.
A Recommendation by the Committee of Ministers, regulating the use of personal data in the police sector, adopted on 17 September 1987 (No.
R (87) 15), reads as follows: “1.1.
Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation ... 2.1.
The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence.
Any exception to this provision should be the subject of specific national legislation.
2.2.
Where data concerning an individual have been collected and stored without his knowledge, and unless the data are deleted, he should be informed, where practicable, that information is held about him as soon as the object of the police activities is no longer likely to be prejudiced ... 3.1.
As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law ... 5.2.i.
Communication of data to other public bodies should only be permissible if, in a particular case: a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this.
5.2.ii.
Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case: a. the communication is undoubtedly in the interest of the data subject and either the data subject has consented or circumstances are such as to allow a clear presumption of such consent, or if b. the communication is necessary so as to prevent a serious and imminent danger.
5.3.i.
The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority ... 6.4.
Exercise of the rights [of the data subject] of access, rectification and erasure should only be restricted insofar as a restriction is indispensable for the performance of a legal task of the police or is necessary for the protection of the data subject or the rights and freedoms of others ... 6.5.
A refusal or a restriction of those rights should be reasoned in writing.
It should only be possible to refuse to communicate the reasons insofar as this is indispensable for the performance of a legal task of the police or is necessary for the protection of the rights and freedoms of others.
6.6.
Where access is refused, the data subject should be able to appeal to the supervisory authority or to another independent body which shall satisfy itself that the refusal is well founded.
7.1.
Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.
For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.
7.2.
Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.
8.
The responsible body should take all the necessary measures to ensure the appropriate physical and logical security of the data and prevent unauthorised access, communication or alteration.
The different characteristics and contents of files should, for this purpose, be taken into account.” 53.
A Recommendation by the Committee of Ministers on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, adopted on 7 February 1995 (No.
R (95) 4), reads in so far as relevant as follows: “2.4.
Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of: a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others.
2.5.
In the case of interference by public authorities with the content of a communication, domestic law should regulate: a. the exercise of the data subject’s rights of access and rectification; b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it; c. storage or destruction of such data.
If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference ...” D. Relevant European Union law 54.
The Charter of Fundamental Rights of the European Union includes the following provisions: Article 7Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.” Article 8Protection of personal data “1.
Everyone has the right to the protection of personal data concerning him or her.
2.
Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.
Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3.
Compliance with these rules shall be subject to control by an independent authority.” 55.
In its judgment of 8 April 2014, ECLI:EU:C:2014:238 (C-293/12, Digital Rights Ireland Ltd, and C‐594/12, Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and Others), the European Court of Justice (Grand Chamber) struck down Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54) on, inter alia, the following ground: “Secondly, not only is there a general absence of limits in Directive 2006/24 but Directive 2006/24 also fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered to be sufficiently serious to justify such an interference.
On the contrary, Directive 2006/24 simply refers, in Article 1(1), in a general manner to serious crime, as defined by each Member State in its national law.
Furthermore, Directive 2006/24 does not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use.
Article 4 of the directive, which governs the access of those authorities to the data retained, does not expressly provide that that access and the subsequent use of the data in question must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto; it merely provides that each Member State is to define the procedures to be followed and the conditions to be fulfilled in order to gain access to the retained data in accordance with necessity and proportionality requirements.
In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued.
Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions.
Nor does it lay down a specific obligation on Member States designed to establish such limits.” COMPLAINTS 56.
The applicant companies complain 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 companies complain 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).
57.
The applicant companies complain under Article 13 of the Convention that there was no effective remedy available to them capable of preventing the transmission of the information in question to the NMA.