Martijn van de Hel and Paul Breithaupt successfully represented a telemarketing company (“client”) in preliminary relief proceedings against the Netherlands Authority for Consumers and Markets (“ACM”) before the Rotterdam district court. In these proceedings, client challenged a dawn raid by the ACM. The preliminary relief judge has granted client’s request. The ACM’s dawn raid was unlawful, and the information collected during the dawn raid should be excluded as evidence. The ACM may cannot publish the fine decision and related notices.
In November 2021, the ACM conducted a dawn raid on the premises of client. As a result thereof, the ACM imposed a fine for alleged breaches of the Consumer Protection Enforcement Act (“Whc”) and decide to publish this fine on its website. According to client, the dawn raid was unlawful.
This is because the ACM’s statement of purpose of the investigation referred to another telemarketing company. This telemarketing company was not located at the addresses of the dawn raid for some time. Client immediately made this known at the time of the dawn raid. Nevertheless, the ACM continued its dawn raid. Not until four months later did the ACM expand the scope of its investigation. According to client, the ACM therefore conducted a dawn raid at a company against which there was no suspicion of unlawful conduct. This violates the fundamental right to respect for private life (Article 8 ECHR and Article 7 Charter).
The preliminary relief judge of the Rotterdam district court follows the view of client. According to the judge, the ACM investigated “legal and natural persons who fell outside the scope of the (group of) companies on which the investigation was focused according to the statement of purpose handed over to the applicants”. The court found this to be in violation of Article 8 ECHR and Article 7 Charter. Moreover, the ACM was not entitled to fix its flawed statement of purpose retrospectively by expanding the scope of the investigation. According to the court, this expansion actually confirms the view that the statement of purpose was inadequate. The information collected during the dawn raid should therefore be excluded as evidence, the court ruled. The fine decision and the accompanying notices cannot be published by the ACM.
For more information on dawn raids by the ACM or the European Commission see: www.invalacm.nl.
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