On 21 December 2012, the Dutch Trade and Industry Appeals Tribunal ("College van Beroep voor het bedrijfsleven, CBb") rendered two judgments (LJN: BY7031, LJN: BY7026) on appeal in cases concerning the right against self-incrimination (the “right to remain silent”) enjoyed by undertakings in the context of investigations conducted by the Dutch Competition Authority ("NMa"). Contrary to the NMa’s position, the CBb ruled that former employees may also invoke this right, that is to the extent that the inquiries made by the NMa concerned a period in which the individual was still employed by the undertaking under investigation.
In 2009, the NMa had fined two former employees for failing to cooperate, i.e. answer questions, during its investigation into the historical behaviour of their former employer. The employees had refrained from answering these questions and referred to the right to remain silent enjoyed by undertakings by virtue of Article 53 of the Dutch Competition Act (and ultimately also by the European Convention on Human Rights). The NMa claimed that such right could not be invoked by former employees as they would not be part of the undertaking any more. As a consequence it imposed fines on the former employees.
The NMa’s reasoning has now been wholly rejected (no further appeal is possible) as the CBb considered that it would be an unwarranted restriction of the right against self-incrimination if it could not be invoked by former employees when they are questioned on the behaviour of their former employer taking place at the time of their employment relationship. In reaching this conclusion the CBb referred to the very broad scope of the duty to cooperate under Dutch law and it held that, in this light, the right to remain silent should not be restricted. The CBb referred to the European Union system in which the obligation to cooperate with investigations is limited to undertakings. There is no obligation for individuals to cooperate with EU Commission investigations.
This judgment will be relevant in cases in which a former employee is interrogated (which happens frequently) without this individual being suspected of “de facto directorship” (feitelijk leidinggeven). In the latter scenario, the individual would enjoy a right to remain silent by virtue of that suspicion itself.
