NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
or devices are sealed if the investigation cannot be completed in one day. The ACM can interview any current or former employee of the company – not just official rep - resentatives. Interviews can occur during a dawn raid or afterwards, either at the company’s prem - ises or at the ACM’s offices. Employees must answer all questions except those that could incriminate their employer. External counsel may attend interviews and may advise the employee to exercise their right to remain silent in response to certain questions. ACM officials will record and take the minutes of the interview, asking the employee to sign them. It is advisable to review these minutes carefully before signing, as doing so indicates agreement with their content. 2.3 Spoliation of Evidence There is no obligation to keep documents or data on the basis of the Act or the General Admin - istrative Law Act. There may be obligations to keep documents and data on the basis of other laws (eg, tax laws). However, once the ACM requires inspection of business information and documents, the spo - liation of that information or those documents would constitute a violation of the obligation to co-operate with the ACM, for which the ACM may impose fines. The ACM did so for instance in 2019, imposing a fine of EUR1.84 million on a company in a case in which employees of a company under investigation left several What - sApp groups, and deleted chat conversations during a dawn raid. 2.4 Role of Counsel Officers or employees have the right to be assisted by a legal representative. The ACM may refuse to allow assistance by a person against whom there are serious objections. This does
not apply, however, to counsel that are admitted to the Bar. Legal counsel are not allowed to give answers or to advise on the answers, though they are allowed to advise the interviewee to remain silent. 2.5 Obtaining Evidence/Testimony In practice, a dawn raid focuses on digital data. For this the ACM set the “Procedure for the inspection of digital data” in 2014, in which it details the way in which it will deal with digital data that has been collected in investigations, what safeguards it will observe when inspect - ing digital data and a number of verification tools that individuals involved have for verifying whether these safeguards have been observed. Once the data has been secured, the enforce - ment official hands an overview of the data in the secure data set to the company involved, including the relevant hash values. The purpose of calculating a hash value is to safeguard a file’s integrity. Any change to a file will result in a dif - ferent hash value. When secured data is to be examined by the ACM for the purpose of determining whether it is a within-scope data set, the enforcement offi - cials give the company involved the opportunity to be present during this examination. No later than the moment of making them available for perusal, the enforcement officials hand to the company involved an overview of the data that is included in the within-scope data set, and of the manner in which the within-scope data set was realised. The search queries that have been used are provided immediately after a data search has been conducted. An enforcement official may see reasons to demand inspection of the data under Article 5:17 of the General Administrative Law Act without
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