NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
2. Early Stages of Cartel Enforcement 2.1 Initial Investigation Investigations can be initiated in the following ways: • on the ACM’s own initiative; • after a complaint has been submitted; • after receiving a tip-off; or • when a cartel participant submits a leniency request to the ACM. Depending on the information that the ACM receives, it will gather additional data on mar - ket positions before taking further investigative steps. If the case so requires, economic analy - ses and digital desk research may be conduct - ed, or collaboration with other authorities such as the public prosecutor and the Dutch Authority for the Financial Markets (AFM) may be sought. The ACM also has the option to initiate inquir - ies within specific economic sectors. After these steps, the ACM typically conducts a dawn raid, during which it copies documents, primarily digi - tal data, and interviews employees. 2.2 Dawn Raids/Search Warrants The ACM is authorised to enter any location (except a private home) without the occupier’s consent and may bring necessary equipment. If entry is refused by the company, the ACM can seek police assistance to gain access. The right to enter “any location” includes places such as employees’ cars. ACM officials can also enter a private home with - out the resident’s permission if it is reasonably necessary for their investigation. However, this requires a warrant from the examining magis - trate at the District Court of Rotterdam, which must be presented upon request.
Companies are required to fully co-operate with ACM officials, who may set reasonable time limits for compliance. Failure to co-operate can result in fines. During a raid, documents are cop - ied, with a focus on digital data. Due to the obli - gation to co-perate, the company must ensure that the ACM has access to its data in archives and the physical and digital environments of individuals identified as “targets” by the ACM. This includes all digital storage devices, such as laptops, mobile phones and USB sticks – and even personal devices if they are used for work purposes. The ACM searches for documents, including emails and chat messages, using search terms. However, these search terms are often broad, leading to discussions between the ACM and the company, even after the raid, about what falls within the scope of the investi - gation. This can result in certain documents not being copied. If the discussion does not lead to a resolution, the company must formally object to the ACM’s actions and may use this objection later in the procedure or in an appeal against a fine decision. Alternatively, the company can initiate summary proceedings against the ACM’s actions. Furthermore, the ACM is not permitted to view or copy correspondence between the compa - ny and external counsel and in-house lawyers admitted to the Bar, as this is protected under legal professional privilege (LPP). If it cannot be determined on site whether documents are pro - tected by LPP, or if there is a dispute with the company, this data is later reviewed by an LPP officer of the ACM. At the end of the dawn raid, the company receives a copy of all copied data, including documents under discussion regarding LPP. ACM officials are also empowered to seal off business premises and objects as needed for their investigation. Typically, specific offices and/
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