NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
having inspected it at the time the data was demanded and secured. If the enforcement officials inspect the demand - ed and secured data in order to assess whether it is within-scope, and the company involved indicates that some of the data concerns privi - leged correspondence, the enforcement official will give the company the opportunity to be pre - sent at the offices of the ACM when such data is inspected. 2.6 Attorney-Client and Other Privileges In cartel procedures, the ACM treats data – whether analogue or digital – as attorney-client privileged, regardless of the regulation to which the data pertains. In other situations, existing jurisprudence is followed with regard to the material scope of the right to privileged corre - spondence. The ACM is prohibited from using such data in enforcement procedures. This applies to communication with a lawyer, includ - ing an in-house lawyer, who 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 offi - cials, EU rules apply and correspondence with in-house counsel, even those admitted to the Bar, is not covered by LPP.
When inspection of data is demanded by ACM enforcement officials, the company may indicate that some of the data pertains to privileged cor - respondence. If the company believes that the document is privileged (in part or completely), then it is not obliged to disclose the (entire) con - tents to the ACM officials. The company must support such claims by putting forward to the enforcement officials the grounds on which the document is indeed protected by LPP. The company can indicate and explain, in particular, who the author is, whom the document is for, the respective positions and duties of each of them, and the objective with which and the con - text in which the document was created. If the ACM officials are not convinced of the claimed privileged nature of the data, yet the company maintains its claim, a designated LPP officer of the ACM is engaged to first assess the privi - leged status of the data claimed by the involved party before the supervising official is permitted to view the data. This also applies if the enforce - ment officials themselves encounter documents that they suspect may contain privileged infor - mation, even without a claim from the company. In both cases, the procedure involving the LPP officer is as follows. • The LPP officer evaluates the privileged sta - tus of data claimed as such by the involved company, based on the explanation provided. The officer may request further clarification. • If the LPP officer, in the presence of the company, agrees with the claim, they inform both the company and the enforcement offi - cials, who must then refrain from viewing or demanding the data. • If the LPP officer disagrees with the claim regarding digital data, the data is secured after being demanded. For analogue docu - ments, a copy is taken in a sealed envelope.
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