| Applicant name | BURANDO HOLDING B.v. AND PORT INVEST |
| Applicant type | Legal Person |
| Number of applicants | 1 |
| Country | Netherlands |
| Application no. | 3124/16 3205/16 |
| Date | 16/05/2023 |
| Judges | Pere Pastor Vilanova, President, Yonko Grozev, Jolien Schukking, Darian Pavli, Peeter Roosma, Ioannis Ktistakis, Andreas Zünd, judges, |
| Institution | Court |
| Type | Judgement |
| Outcome Art. 8 | No violation |
| Reason | Necessary (economic well-being) |
| Type of privacy | Informational privacy |
| Keywords | Margin of appreciation; quality of law; transfer of data |
| Facts of the case | The Intelligence and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment operating under the authority of the public prosecutor investigated company I., which was suspected of involvement in the disposal of polluted waste in contravention of environmental protection legislation. Authorised by an investigating judge, telephone conversations made by some employees were intercepted. Among them were conversations between an employee of I. and an employee of the Ships Waste Oil Collector B.V., some of which were identified as being of potential interest to the Netherlands Competition Authority (NMA) because they contained indications of price-fixing. The NMA subsequently started an official investigation into possible violations of the Competition Act; the public prosecutor gave permission for the transmission to the NMA of a further selection of transcripts and audio files of the telephone conversations intercepted in the criminal investigation. The NMA concluded that several companies, including the I., had coordinated their behaviour with the aim of allocating contracts and preventing or limiting price competition in the field of ship-generated waste collection, and fined them accordingly. The applicant companies lodged a written objection with the NMA, protesting, inter alia, against the absence of any knowable, reviewable weighing of interests by the public prosecutor and against the lack of prior judicial control on the transmission of the data to the NMA. The Regional Court joined the appeal of the applicant companies with the appeals of other ships’ waste disposal companies that were fined for breaching the Competition Act, including Ships Waste Oil Collector B.V. (see application no. 2799/16). The Regional Court reiterated that the intercepted telephone data did qualify as ‘criminal data’ and found that no reviewable weighing of interests had been recorded since the public prosecutor had merely given handwritten permission for the transmission of the official record and subsequently on pre-printed forms without reasoning. The transcripts were to be excluded as evidence and since the NMA’s investigation and their decisions had mainly relied on this evidence, the Regional Court quashed the NMA’s decisions. On appeal, however, the Supreme Administrative Court for Trade and Industry quashed the Regional Court’s judgment. |
| Analysis | The analysis of this case is largely similar to that of 2800/16. Here, only the additional relevant points will be highlighted. 1. As to the admissibility of the claim, this case not only poses the question to what extent legal persons can invoke Article 8 ECHR, to what extent such would include a right to data protection and whether a company can claim an independent right to data protection when the data of their employees are gathered, it also raises the additional point that the initial data collection focused on another company than the application company. The telephone conversation with an employee of the applicant company and the investigation that it spiraled was, so to say, by-catch. On this point, ‘the Court notes that only conversations of the I. company’s employees were intercepted and subsequently transmitted to the NMA. However, at the relevant time Burando Holding B.V. controlled all the shares in the I. company via Port Invest B.V., who was also a board member of the I. company. For this reason, the domestic authorities assumed that Port Invest B.V. and Burando Holding B.V. exercised decisive influence on the I. company’s actions. Under these circumstances, the Court considers that the I. company and the applicant companies are so closely identified with each other that it is artificial to distinguish between them. (§46)’. This could be interpreted as that when data about an employee of a company that is owned by another company are gathered, this would give that other company a legitimate claim to Article 8 ECHR. 2. The applicant argued that some of the data transmissions had taken place at a time when those data should already have been destroyed. The Court reiterated, however, that it is not its task to interpret the applicable domestic law and stressed that the domestic legal provisions do not define what should be regarded as the end of the criminal case for the purpose of those provisions. Also, the data cannot be deleted when a criminal case has started. That is why the ECtHR dismissed this point. 3. In their joint dissenting opinion, judges Grozev, Pavli and Ktistakis refer to their arguments made in 2800/16. In addition, they pointed out that the administrative proceedings conducted by the Competition Authority in the present case were even further removed from the original proceedings that gave rise to secret surveillance measures than they were in the circumstances of case 2800/16. |
| Other Article violation? | No violation 13+8 |
| Damage awarded | – |
| Documents | Judgment |