ECHR okays sharing tapped phone calls in Dutch anti-trust caseMolly Quell
The European Court of Human Rights sided with the Netherlands on Tuesday, rejecting a claim by a group of shipping companies that their rights were violated when Dutch prosecutors shared tapped phone calls revealing price fixing with the country’s competition authority.
The Strasbourg-based court ruled in four cases involving companies based in Rotterdam which were fined for anti-competitive behaviour between 2010 and 2011 by the Netherlands Competition Authority (NMA), or its successor body, the consumer and Market Authority (ACM.)
Dutch prosecutors opened an investigation in 2006 into Burando Holding, Port Invest and Ships Waste Oil Collector – nicknamed Operation Toto – after concerns arose the companies were dumping waste illegally.
In the course of the investigation, the public prosecutors’ office intercepted a series of phones calls that revealed that the companies were colluding to artificially inflate prices.
Prosecutors turned the recordings over to the ACM, which in turn opened its own investigation. Ultimately, the trio were fined €2.6 million for anti-competitive behavior.
In Operation Cleveland, prosecutors opened an investigation in 2005 into another Rotterdam port operator, Janssen de Jong Groep, which was suspected of bribing government officials in exchange for infrastructure contracts. Intercepted phone calls, again handed over to the ACM, lead to a €3 million fine for colluding with competitors on bids.
The foursome complained to the ECHR, arguing the Dutch authorities had illegally shared the wiretapped phone calls.
The seven-judge panel was unconvinced sharing the phone calls violated the foursome’s right to privacy or right of a fair trail, as protected by the European Convention of Human Rights.
It was “sufficiently foreseeable that the NMA was authorised to receive criminal data from the Public Prosecution Service,” the court wrote. The ruling also noted that had prosecutors disclosed to the companies they were sharing the phone calls, it would have revealed their ongoing investigation.
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