Contributed By Nysingh Advocaten-Notarissen N.V
The ACM has laid down its procedures regarding legal privilege in its ‘2014 ACM Procedure regarding the legal professional privilege of lawyers’. The procedure applies to the exercise of the power to demand inspection of data under Section 5:17 (inspection of business information and documents) of the General Administrative Law Act. This procedure may similarly apply if the power to demand inspection of data under Section 5:16 of the General Administrative Law Act (request to provide information) is exercised.
The ACM considers documents to be privileged regardless of what regulation the data is related to. In other situations, existing jurisprudence is followed with regard to the material scope of the right to privileged correspondence. The procedure applies to communication with a lawyer (ie, a counsel that is admitted to the Bar), but not to communication with other legal professionals. On the other hand, according to Dutch law, attorney-client privilege also exists in relation to in-house lawyers who are admitted to the Bar. If ACM officials conduct investigations on the basis of Dutch competition law, Dutch national rules apply and the correspondence with both in-house and external counsel, if admitted to the Bar, is covered by attorney-client privilege. The same goes for investigations by the ACM at the request of the Commission or a competition authority of another Member State. However, if ACM inspectors only assist the Commission officials, EU rules apply and correspondence with in-house counsel, even those admitted to the Bar, has no legal privilege coverage.
When inspection of data is demanded under Section 5:17 of the Administrative Law Act, the company may indicate that it contains privileged correspondence. If the company believes that the document is privileged (in part or completely), then it is not obliged to disclose the entire contents to the ACM official. The company must support such claims by putting forward to the enforcement official grounds that the document is indeed protected by confidentiality. The company can indicate and explain, in particular, who the author is, whom the file is for, the respective positions and duties of each of them, and the objective with which and the context in which the document was created. If the ACM official is not convinced of the claimed privileged nature of the data but the company persists in its claim, the ACM official takes the data with him or her in a sealed envelope. After the dawn raid is finished the sealed envelope will be handed over to the LPP officer for verification of the privileged nature of the data. LPP officers are ACM officials who are not and will not be involved in the investigation in relation to which they have examined data or documents, or in any other investigation in which the data or documents (or parts thereof) from the former investigation are used. They are not, however, independent. The LPP officer will give the company the opportunity to indicate which of the data (or parts thereof) that have been submitted to the LPP officer is, in his or her opinion, privileged.
The ACM organisation has taken the necessary measures (technical and non-technical) to guarantee compliance with the safeguards mentioned in this procedure. For example, it stores correspondence with the LPP officer on a closed network that cannot be accessed by ACM enforcement officials, alongside the data that is given to the LPP officer.
The procedure regarding legal privilege is not mandatory. If the company believes that an assessment by the LPP officer offers too few safeguards, it is free to start (civil law) interim injunction proceedings against the inspection (superficial or not) of the document by an ACM official. In such a case, the ACM official can leave the document in question with the company, in a sealed envelope, and the individual involved has ten working days to have a writ served on the Dutch state.