Former employees have the right to remain silent during Dutch cartel investigations

On 21 December 2012, the Dutch Trade and Industry Appeals Tribunal (‘CBb’)[1] ruled that former employees have the right to remain silent during interviews conducted by the NMa in the context of a cartel investigation. 

Procedure

In 2008, the Dutch Competition Authority (‘NMa’) started an investigation into a possible violation of the cartel prohibition between 1998 and 2009. In the course of this investigation, the NMa informed the company it wanted to hear a former employee. This person was employed between 1969 and 2006 .

The former employee refrained from answering any questions and relied on his right to remain silent. The NMa claimed that former employees cannot invoke this right. The former employee was, however, adamant. In July 2009, the NMa drew up a report, in which it concluded that the former employee violated the obligation to co-operate, as laid down in the Dutch Competition Act. The NMa subsequently imposed a EUR 150,000 fine on the former employee.

The former employee lodged an appeal against this decision at the district court of Rotterdam. However, on 9 June 2011, the court declared the appeal unfounded. It held that former employees no longer belong to the company and therefore cannot rely on their right to remain silent, which (in the view of the district court) was derived from actual employment. The former employee appealed to the CBb.

In essence, the CBb was called on to rule whether a former employee was still (as the Dutch Competition Act phrases it) “on the part of the company” and could therefore rely on his right to remain silence vis-à-vis the NMa.

Judgment CBb

The former employee argued that an employee remains part of a company with regard to all his actions performed on behalf of the company. Even if the employee is no longer employed. Conversely, the NMa concurred with the districts court’s judgment, stating that employees who at the time of investigation are no longer part of the company, cannot speak for or give statements on behalf of the company and have therefore become disattached.

The CBb ruled as follows. The NMa’s interpretation of the right to remain silence is too restrictive, because it limits the scope to those who are working at the company at the time of the investigation. Moreover, it considers that the text of the statutory provision nor the legislative history warrant such restriction. According to the CBb, the termination of an employment contract does not expire an employee’s right to remain silent. The CBb also notes, to begin with, that that the obligation to co-operate, laid down in EU competition law, is restricted to a far more limited circle of persons. Employees and former employees under EU competition law would not have been obliged to co-operate to begin with.

According to the CBb, the NMa wrongly assumed that the former employee had the obligation to co-operate. It held under the circumstances, the NMa was not authorized to impose a fine on the former employee.

Key takeaway

Under Dutch competition law, former employees may invoke the right to remain silent during a cartel investigation conducted by the NMa. Former employees are no longer required to provide self incriminating evidence.

For more information please contact:

Adriaan Buyserd
T. +31 (0)73-6927 798
E. a.buyserd@banning.nl

[1] CBb 21 December 2012, LJN BY7026; and CBb 21 December 2012, LJN BY7031.