NMa updates its digital investigation procedure

On 16 August 2010 the Netherlands Competition Authority (NMa) published a new “Analogue and Digital Investigation Procedure”. The purpose of the procedure is to perform investigations and safeguard the rights of companies and individuals more efficiently. Since 17 August 2010 the new procedure has replaced the procedure published in 2007. 

The NMa is in charge of supervising compliance with the Competition Act and a number of other Acts. The supervisory officers have been given a number of statutory powers to enable them to perform that task. They have the right, for instance, to gain access to premises, to search homes, to demand information and to gain access to data and documents.

The “NMa 2007 Digital Procedure” sets out rules regarding the manner in which those powers are exercised. Since the state of the art in digital investigation has changed, the NMa has updated its procedure and published a new Decision. The new procedure was drawn up after a written round of consultations and a consultation meeting with market parties had taken place. The NMa has also taken into account a judgment passed by the Summary Proceedings Judge of the Court of The Hague. In that judgment the Court ruled that the alleged violator in that case should have been given the opportunity to ensure that digital data that fell outside the scope of the investigation was accessible to the supervisory officer no longer than necessary.

The design and structure of the procedure have been changed. Also, the terms used in the new procedure differ from those in the old procedure. A number of substantive aspects have of course also been changed in the new procedure.

The old procedure focused in particular on on-site digital investigations that took place under the Competition Act. The new procedure also covers investigations under other Acts [1] on the basis of which the NMa is the supervisory authority. The new procedure also addresses the question how analogue data and documents should be handled and furthermore regulates the authority to demand information.

The new Decision sets out in outline in what manner officers should exercise their powers. That is particularly relevant in on-site investigations. A clear distinction has been made in the qualification of data that fall within the scope of the investigation and data that may fall outside that scope.

Because the Decision has been adjusted to the current state of the art in digital investigation, the procedures have been made as efficient as possible. This applies in particular to the processing of digital data and the manner in which such data must be handled. The Decision furthermore contains guarantees for the alleged violators pursuant to the European Convention on Human Rights and the generally accepted principles of proper management.

A number of changes have been made regarding privileged information and documents. For instance, the new Decision makes a clearer distinction between information of such a nature found during an on-site investigation and information found after an on-site investigation. If a violator claims that certain information or documents are privileged, the officer in question can establish on site whether that claim is justified by briefly inspecting the information in question. If the officer is still not convinced of the nature of the document, he can take it away in a sealed envelope. That is a new power. The envelope is then handed over to the privileged information officer. That officer will request the alleged violator to substantiate his claim within ten working days after the investigation took place. If the officer believes that the claim is justified, the information is returned or destroyed. If he believes that the claim is not justified, the alleged violator will be given the opportunity to further explain his position.

Unlike the old procedure, the new procedure states how digital information should be handled after the investigation has been completed and the terms have lapsed. Any data that have not been used as evidence in the report must be destroyed.

The party that is or has been raided has therefore been given more rights in respect of privileged data and documents. However, this also applies to the supervisory officer. If the NMa raids a company or home, it is important to know what those rights are exactly. This also applies to the manner in which the other data should be handled during and after the raid, and after the investigation has been completed.

[1] The Gas Act, the 1998 Electricity Act, the 2000 Passenger Transport Act, the Pilotage Act, the Railways Act, the Telecommunications Act, the Temporary Act on Media Concentrations and the Aviation Act.