The European Court of Human Rights (ECHR) Grand Chamber ruled on Monday that the Consumer and Market Authority (CMA) in the Netherlands did not act unlawfully in receiving phone-tap data obtained by another law enforcement authority. In particular, the ruling held that the Competition Authority did not act in a way that was incompatible with Articles 8 and 13 of the European Convention on Human Rights, clarifying the position on the transfer of data between authorities.
The primary dispute in the case concerned the Netherland CMA’s (previously the Competition Authority) use of intercepted data against six limited liability companies. The phone-tap data was obtained in the course of criminal investigations, where conversations concerning price fixing were revealed. As price fixing is a competition law violation, the data was transferred to the CMA, which in turn brought relevant proceedings and the companies were fined.
The applicant companies brought proceedings, relying on Articles 8 and 13, to argue that the CMA’s use of legally intercepted data that was unrelated to criminal investigations was “not foreseeable” and the “procedural safeguards were insufficient.” Two years ago, the ECHR found no violations of the Convention and the applicants requested that the case be heard before the Grand Chamber under Article 43.
Article 8 protects the right to private life and, particularly in this case, correspondence. Article 13 protects the right to an effective remedy “notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Grand Chamber outlined safeguards ensuring that intercepted data shared between law enforcement is convention compliant. It said that only data collected in line with the Convention can be shared, domestic law must clearly define when and how data can be transmitted, rules must exist for handling, storing, using, forwarding and destroying the data, and the sharing and use of data beyond the original criminal case must be reviewed by an independent authority.
The court also ruled that, in assessing whether data transmission is necessary in a democratic society, the “nature of the data”, and aim of transmission are among the factors to consider. The court ruled that in this case, the aim of the transfer being the “economic wellbeing of the country” was “legitimate” and had not amounted in a violation of Article 8. The court took the view that Article 13 was not violated, as there were “effective remedies” at the disposal of the Appellants to “raise their complaints”.
While the Grand Chamber’s majority ruled that there were no violations of the Convention, some judges opined that Article 8 had in fact been violated and that the law allowed for “excessive discretion”.