NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
• If an assessment cannot occur in the compa - ny’s presence, digital data is secured, and the claim procedure (see below) is followed. For analogue data, a copy can be handed over in a sealed envelope. • Data deemed privileged by the LPP officer is marked “LPP assigned” . If the claim is deemed unjustified, it is marked “LPP provi- sionally (partially) rejected” . • The LPP officer informs the party in writing of the initial assessment and allows five working days for further written explanation. • If the LPP officer still finds the claim unjusti - fied after further explanation, the data is marked “LPP rejected” . Data with valid claims is marked “LPP assigned” . • The officer notifies the company in writing, stating that the data will be provided to the enforcement officials after ten working days unless the party agrees to an earlier transfer. Data with honoured claims are exempt from this transfer. The ten-working-day waiting period allows the company to initiate civil summary proceedings to prevent the LPP officer from transferring the data. If a sum - mons is served within this period, the data will not be transferred while proceedings (and any appeal) are ongoing. LPP officers are ACM officials who are not and will not be involved in the investigation in rela - tion to which they have examined data or docu - ments, 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 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 a (civil law) interim
injunction proceedings against the inspection of documents by an ACM official. 2.7 Non-Cooperation Generally, companies and employees comply with requests for information, since non-coop - eration with the ACM can result in a fine of up to EUR900,000 or 1% of the annual turnover. This does not mean, however, that requests for information should not be treated critically. If, for instance, requests are unreasonable or vague, this should be discussed with the ACM. 2.8 Protection of Confidential/Proprietary Information Companies accused of breaching the cartel pro - hibition are granted access to the investigation file during the procedure to effectively exercise their rights of defence. However, documents protected by LLP are excluded, as detailed above. Companies may also claim that other documents in the file are confidential. Furthermore, lawyers admitted to the Bar, rep - resenting the companies involved, are afforded the opportunity to utilise the data room proce - dure. This data room grants access to all docu - ments within the investigation data sets, which are more extensive than the investigation file, from the parties involved in the investigation. The investigation data sets encompass all data collected by the ACM during dawn raids, includ - ing business-confidential information. This pro - cedure is subject to limitations, as companies do not have unrestricted access due to the pro - tection of confidential information. Additionally, actions such as making copies by the lawyers are prohibited.
240 CHAMBERS.COM
Powered by FlippingBook