CEDH · CASELAW;CLIN;ENG — 1 avril 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary April 2025 Ships Waste Oil Collector B.V. and Others v. the Netherlands [GC] - 2799/16, 2800/16, 3124/16 et al. Judgment 1.4.2025 [GC] Article 8 Article 8-1 Respect for correspondence Transmission and use in competition law proceedings of data lawfully obtained through telephone tapping in criminal investigations: no violation Facts – The six applicants are companies incorporated under Dutch law. The first group of applicant companies ( Ships Waste Oil Collector B.V. , Burando Holding B.V. and Port Invest B.V. ) are engaged in the collection of waste liquids from ships in the Rotterdam port region. The second group ( Janssen De Jong Groep B.V. , Janssen De Jong Infra and Janssen de Jong Infrastructuur Nederland B.V .) are engaged in construction. The cases concern the transmission, by the Public Prosecution service, of data, lawfully obtained in the context of criminal investigations through telephone tapping, authorised by the investigating judge ( rechter-commissaris ), to the Netherlands Competition Authority (“NMA”) and their use by that authority in unrelated administrative investigations into the applicant companies’ involvement in price-fixing. Following competition-law proceedings the applicant companies were fined for breaches of the Competition Act. The relevant decisions were eventually upheld but the second group of companies had their fine reduced. The fines ranged from 463,000 to 1,861,000 euros. In three judgments of 16   May 2023, a Chamber of the Court held, by four votes to three, that there had been no violation of Article   8 of the Convention and, unanimously, that there had been no violation of Article   13 of the Convention in conjunction with Article   8. On 25   September 2023 the case was referred to the Grand Chamber at the applicant companies’ request. Law – Article   8: (1) Existence of an interference and its scope – The transmission of data to other authorities enlarged the group of persons with knowledge of the intercept data and could lead to investigations or other action being instituted against the data subject. Consequently, the Court considered that the transmission of intercept data for further use by another law-enforcement authority constituted a separate interference with Article   8 rights, distinct from, albeit related to, the original interception of communications. It then found that in the instant case the transmission of intercept data for use in the competition proceedings had amounted to an interference with the applicant companies’ right to respect for their correspondence. (2) Justification for the interference – (a) Applicable general principles – (i) Lawfulness and necessity in a democratic society – It followed from the Court’s well‑established case-law that the law must provide for “precautions to be taken when communicating [intercept] data to other parties”. Such precautions had to ensure, inter alia , that the transmissions did not become an instrument for circumventing the strict safeguards applicable to the interception of communications. The Court had not yet provided guidance regarding the precautions to be taken when communicating intercept data to other parties, except in the very specific context of the international transmission of data collected through the bulk interception of communications. The Court considered that, outside that context, the precautions to be taken when communicating intercept material to another law-enforcement authority had to include a number of minimum requirements, set out in law, to avoid arbitrariness and abuse. Those were as follows: – First, the transmission of intercept material beyond the original criminal context for its collection should be limited to such material as has been collected in a Convention‑compliant manner. – Secondly, the circumstances in which such a transmission might take place must be set out clearly in domestic law. – Thirdly, the law must provide for safeguards concerning the examination, storage, use, onward transmission and destruction of the data transmitted. – Lastly, the transmission and use of intercept data for a purpose beyond the original criminal context for their collection must be subject to effective review by a judicial or otherwise independent body. Furthermore, in assessing whether the interference arising out of the data transmission could, in the circumstances of the case, be considered “necessary in a democratic society” in pursuit of a legitimate aim, the Court would take into account the nature of the data, the importance of the aim pursued by their transmission, and the resulting consequences for the applicant, as well as the quality of the authorisation procedures and the effectiveness of available remedies. (ii) The level of protection for legal persons and the margin of appreciation – The Court found that the breadth of the margin of appreciation should depend in each case on the content and nature of the data in question rather than on the applicants’ physical or legal nature or their status. It would be wider in respect of the collection and processing of business-related data of both companies and individuals, than in the case of the collection and processing of data concerning an individual’s intimate sphere or a particularly important facet of an individual’s existence or identity. The breadth of the margin of appreciation would also depend on the gravity of the interference and the object pursued by it. Furthermore, the minimum safeguards under Article   8 should in principle be the same for natural and legal persons, although some differences might arise as a result of the application of data protection laws to the former and the function of the margin of appreciation. (b) Application to/in the present case – (i) Preliminary considerations – The applicant companies had not complained about the telephone tapping as such and it was not disputed that the data were lawfully obtained in the framework of criminal proceedings in which the interception orders had been authorised by the investigating judge. The Court thus proceeded on the basis that the data had been lawfully obtained in a manner compatible with Article   8. (ii) Whether the interference was in accordance with the law – The Court found that the data transmissions had a legal basis in the applicable domestic law which defined with sufficient clarity the circumstances in which a transmission of lawfully obtained intercept material to another law‑enforcement authority could be authorised. The absence of written reasoning in the transmission authorisations did not render them unlawful; the applicable domestic law did not require prosecutors to record their necessity and proportionality assessment in a reasoned decision. Furthermore, the applicable law fulfilled the requirements of “foreseeability” under Article   8 §   2; it was reasonably foreseeable that by-catch data could be considered criminal data and that the NMA could lawfully receive criminal data but also have prior access to certain data to help identify the relevant data to be transmitted. (iii) Whether the interference pursued a legitimate aim – The data transmissions had served the legitimate aim of protecting the economic well-being of the country. (iv) Whether the interference was “necessary in a democratic society” – An independent ex ante authorisation for transmissions of intercept material lawfully obtained in a Convention-compliant manner to another law-enforcement authority was not required by Article   8. Authorisation of such transmissions by a non-judicial authority might be compatible with the Convention; extensive post factum judicial or otherwise independent oversight might counterbalance the absence of an independent authorisation. Given that the intercept material in the present case had been collected on the basis of a judicial authorisation and in a Convention‑compliant manner, it had not been incompatible with the Convention for the authorisation to transmit that material to another law-enforcement authority to be granted by the prosecutor. What was more important was whether the domestic system of review of data transmissions as a whole had provided the applicant companies with adequate safeguards against arbitrariness and abuse and had been capable of restricting the contested transmissions to what was “necessary in a democratic society”. Article   8 did not guarantee the right to a prior notification about secret surveillance. The same applied to the transmission of intercept material when the secrecy of the transmitted data was of importance for the original criminal proceedings or for the new proceedings for the purposes of which the data were being transmitted. Article   8 could not be construed as guaranteeing prior notification about the transmission of intercept material or, by implication, the possibility to participate in any review prior to the data being transmitted. In the present case, the telephone tapping data intercepted in the context of the investigation involving the second group of applicant companies was transmitted while that investigation was still ongoing, and the tapping being kept secret from the persons concerned. Notifications could have thus undermined the criminal investigation, the success of covert investigative measures and an investigation by the NMA. In the circumstances of the present case, therefore, the transmissions of the data had to take place without those companies’ prior knowledge. The fact that they were unable to take part in the authorisation proceedings or apply for a preventive remedy in another form had not in the circumstances breached Article   8. However, as regards the first group of applicant companies, when the suspects had learned about the criminal proceedings against them and presumably about the use of telephone tapping, it was unclear why the subsequent data transmissions had been carried out in secret and in what way prior notice about them would have hampered the competition proceedings. The Court found it regrettable that this group of applicants had not given prior notice about the transmissions that took place from then onwards and had therefore been unable to have their arguments against those transmissions heard in the framework of an ex ante review. The question thus arose whether they had been given a sufficient opportunity to have their arguments heard during the ex post facto review. The applicant companies had eventually learned about the data transmissions and had been able to use judicial ex post facto remedies. Thus, in the specific circumstances of the case, the assessment of the effectiveness of the remedies available under domestic law had to be carried out without considering the initially secret nature of the transmissions. The scope of the domestic courts’ review in the administrative proceedings concerning the NMA’s decisions to impose the fines on the applicant companies had not been limited to the admissibility of the intercept material in evidence. The courts had examined the lawfulness of the transmissions– which included the necessity and proportionality test– and their compliance with Article   8. The remedy used by the applicant companies had therefore been able to deal with the substance of the Convention complaint that the interference had not been “in accordance with the law” or “necessary in a democratic society”. Written reasoning in transmission authorisations, even if succinct, was desirable to ensure that the authorising authority had properly assessed the necessity and proportionality of the interference with Article   8 rights and to facilitate an effective review of the transmission for the purposes of Article   8 §   2. In the present case, as the transmitted material had been the product of lawful telephone tapping authorised by a court, safeguards applicable to the process of obtaining the intercept data had limited the risk of arbitrariness and abuse related to the transmissions. The absence of any written reasoning thus had been compensated by the ex post facto review in the judicial proceedings in which a de novo assessment was conducted and the applicant companies had been given an opportunity to effectively contest the data’s transmission. Furthermore, the Court had no reason to doubt that those proceedings had been capable of affording the applicant companies appropriate redress. In its view, redress in the form of the destruction of transmitted data or monetary compensation was not necessarily required for a remedy concerning the transmission of intercept data; restrictions on their use, such as a declaration of inadmissibility as evidence, might afford sufficient redress for such transmissions. It had also been open to the applicant companies to challenge the transmissions in civil proceedings in which the courts could have prevented the data from being used by the NMA, if the transmission had been found to be unlawful. There was no reason to doubt that such proceedings, if pursued, would have been capable of dealing with the substance of their Convention complaint by examining whether the interference had been lawful and proportionate to a compelling general interest, and of providing redress in the form of damages or injunctions. The lack of written reasoning in the transmission authorisations could not undermine the effectiveness of the civil remedy in the circumstances of the case. Accordingly, the domestic system of review of data transmissions as a whole had afforded the applicant companies adequate safeguards against arbitrariness and abuse, providing for an opportunity to effectively contest the transmissions of intercept material and safeguarding their rights. The Court agreed with the domestic courts that there was strong public interest involved in the effective enforcement of competition law which was crucial to safeguarding the performance capacity and fairness of market economies, and, consequently, the economic well-being of the country. The violations of competition law that had been revealed by the intercept material in the instant case had been undoubtedly serious and, in view of the applicant companies’ high market share and the systematic and repeated nature of those violations, could lead to significant damage. The Court had previously classified similar administrative competition proceedings as “criminal” within the autonomous meaning of Article   6 of the Convention, in view of the nature of the offence and the nature and severity of the sanction. While the sanctions imposed on the applicants had been serious, the data transmissions had been limited to material relevant for the competition proceedings and exclusively concerned the business activities of legal persons; it did not contain any data which could be considered sensitive. Noting the domestic authorities’ careful assessment of the lawfulness of the data transmission and the adequate balancing under Article   8 of the interests of the applicant companies and those of the authorities, the Court was satisfied that they had advanced relevant and sufficient reasons to justify the necessity and proportionality   of the data transmission for the purposes of enforcement of competition law. The respondent State thus had remained within the margin of appreciation afforded to it. Conclusion: no violation in respect of the first group of applicant companies (twelve votes to five); no violation in respect of the second group of applicant companies (ten votes to seven). In the light of its considerations and findings under Article   8, the Court found (fifteen votes to two) that there had been no violation of Article   13 in conjunction with that provision, as the applicant companies had had an effective remedy at their disposal to raise their complaints. (See Roman Zakharov v.   Russia [GC], 47143/06, 4   December 2015, Legal Summary ; Big Brother Watch and Others v.   the United Kingdom [GC], 58170/13 et al, 25   May 2021, Legal Summary ; Naumenko and SIA Rix Shipping v.   Latvia, 50805/14, 23   June 2022)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .