Court rules whistleblower statements must be disclosed

• Netherlands

• Competition, EU and Trade

21-12-2015

An appeals court in Rotterdam has ruled that the Dutch Authority for Consumers & Markets (“ACM”) must hand over transcripts of oral statements gathered from members of a flour cartel. According to the court, the transcripts will help companies that did not cooperate with the competition authority to defend themselves against cartel charges. 

Background and Judgment  

On 2 December 2015 the Trade and Industry Appeals Tribunal (“CBB”) ruled that the Authority for Consumers & Markets (“ACM”) must hand over transcripts of oral statements gathered from members of a flour cartel.[1] 

In December 2010 the ACM fined fifteen flour producers from the Netherlands, Belgium and Germany. Some companies filed appeals at the court of Rotterdam, which largely upheld the cartel findings but acquitted individual millers in July 2014. The rulings of July 2014 are currently under appeal at the CBB.  

The ACM requested that the transcripts of the oral statements provided to the CBB not be distributed to the other parties in order to guarantee the success of the ACM leniency programme. However, the CBB ruled that in this case the rights of the cartel members to defend themselves are more important than the success of the leniency programme of the ACM. 

The CBB ruled that there was only a limited interest in restricting access to the transcripts, because the content of the transcripts is already known to non-leniency applicants and the involvement of the cartel members can also be deduced from other non-confidential documents. 

The CBB ordered that the ACM prepares a new version of the documents and submits them to the CBB and the other parties in the case. 

Comment 

This judgment is of interest in light of the recent EU directive on antitrust damages actions (read our briefing here). The EU directive provides that the use of leniency statements must either be deemed to be inadmissible in actions for damages or must otherwise be protected under the applicable national rules. In the Netherlands the draft implementation legislation of the directive states that leniency statements cannot be used as evidence in actions for damages.

[1] The CBB judgment can be accessed here.