The PPS started an investigation against a construction company on suspicion of bribery. During the investigation the PPS made telephone taps. When it found suspicions that the construction company made illegal price-fixing agreements, the PPS provided the NMa with transcripts of the telephone calls on basis of article 39f of the Judicial Data and Criminal Records Act. In interlocutory proceedings the construction company claimed that the PPS was not allowed to provide the NMa with the telephone taps and demanded the NMa to return the taps to the PPS. The company argued there is a distinction between information which has relevance for the prosecution of criminal acts (in this case bribery) and the by-catch which relate to the price fixing agreements – in this respect one should take into account that in the Netherlands a breach of the competition rules does not constitute a criminal offence but an administrative violation. According to the company the information which relate to the price-fixing does not form part of the criminal file and falls outside the scope of the Judicial Data and Criminal Records Act. The court, however, was of the opinion that the tap recordings are to be considered as a whole and therefore are in full part of the criminal file. As a result the information concerning the price-fixing is to be considered as judicial data in the meaning of the Judicial Data and Criminal Records Act.
The court continued to say that the PPS acted lawfully when it provided the NMa with the information, given that under the Judicial Data and Criminal Records Act the PPS may provide judicial data even outside the scope of criminal prosecution purposes if this is necessary for the purpose of an important public interest. In the opinion of the court this condition was fulfilled since the NMa is protecting the economic well-being which is an important public interest. For this interpretation the court refers to the legislative history where it is stated that in view of article 8 of the European Convention on Human Rights (ECHR), public interest must be understood as the interest of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. In the opinion of the court the interest of economic well-being of the Netherlands outweighs the privacy protection of the construction company also given the fact that the infringement on the privacy rights of the company was proportional (the construction company failed to make plausible that the price-fixing information could have been obtained in another, less harmful, manner as such collusive arrangements, as a rule, are not put in writing). Recently the District Court of The Hague decided that the Dutch Public Prosecution Service (PPS) was permitted to provide the Dutch Competition Authority (NMa) with recordings from telephone taps which pointed to forbidden price-fixing agreements in the meaning of article 6 of the Dutch Competition Act.
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