Court Finds That ACM Was Not On A Fishing Expedition

 
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Different from the District Court (see for more our Competition Newsletter of October 2012), the Court of Appeal of The Hague has ruled that the ACM can order a forensic IT firm to produce a list of companies active in the sector under ACM investigation for which it has carried out competition compliance audits. According to the Court of Appeal, the ACM has a legitimate interest in obtaining this list, since the results of these audits could be used by the audited companies to destroy evidence of possible anti-competitive conduct.

During a dawn raid conducted within the context of a sector investigation, the ACM found a report by the forensic IT firm of its findings regarding a competition compliance audit carried out on behalf of the company in the dawn raid. The ACM subsequently carried out a dawn raid at the premises of the IT firm and ordered it to produce a list of all companies active in the sector under ACM investigation for which the IT firm had carried out competition compliance audits. According to the ACM, the IT firm was bound to produce this list on the basis of the statutory obligation to cooperate with ACM investigations.

The Court of Appeal agreed. It ruled that third parties, such as the IT firm, have a duty to cooperate and can be ordered to supply information...

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