Prosecutors investigating illegal dumping shouldn’t share intel on price fixing, Dutch companies argue

STRASBOURG, France (CN) — A group of companies told Europe’s top rights court on Wednesday that the Netherlands violated their right to privacy when prosecutors, investigating violations of environmental regulations, shared evidence of price fixing with the country’s competition watchdog. 

The maritime companies, all based at the Port of Rotterdam, are appealing a decision from a lower chamber at the European Court of Human Rights that found no fault with the transmissions of tapped phone calls from the public prosecutor's office to investigators at the Dutch Competition Authority. 

“Criminal investigations may uncover other serious violations. Should [the Netherlands] ignore such information? The government is of the opinion it should not,” Babette Koopman told the Strasbourg-based court on behalf of the Netherlands. 

In 2006 Dutch authorities launched Operation Toto, an investigation into improper liquid waste disposal at Europe’s largest port. A judge authorized investigators to intercept the phone calls of some of the employees at the companies suspected of illegal dumping. 

The tapped conversations seemed to indicate that some of the companies were engaged in price fixing. Investigators handed off transcripts of the relevant conversations to the Dutch competition watchdog. 

In 2011, the Dutch Competition Authority fined several companies a total of 2.9 million euros ($3.2 million) for anti-competitive behavior, including 834,000 euros ($900,000) for Ships Waste Oil Collector, the lead plaintiff. 

Lawyers for the maritime companies told the 17-judge panel this was a violation of their right to privacy, as protected by the European Convention on Human Rights. The treaty, which came into force in 1953, protects the civil and political rights of Europeans. 

The companies argued the data is “tainted” and that the Netherlands has insufficient protections on the sharing of such information. Lawyer Margaretha van Heezik stressed that permission to intercept the calls was part of an investigation into violations of environmental regulations, not anti-competitive behavior. “This could easily lead to abuse,” she said, warning of investigators going on “fishing expeditions.” 

Her co-counsel Henno Bravenboer told the judges it was clearly illegal to transfer the data from one organization to another. “It’s the fruit of a poisonous tree,” he said. 

The group already failed to convince the Dutch Supreme Court, which ruled in 2015 that the information was lawfully shared. 

In 2016, the companies lodged a complaint with the rights court, which put several similar cases together. In 2023 the court’s Third Chamber also held the sharing of data by the Dutch authorities hadn’t violated the convention. 

Lawyers for the Netherlands assured the judges again that the country took privacy concerns seriously. “All essential safeguards were in place,” Koopman said. 

In 2023, 231 complaints were brought against the Netherlands at the court, one of the lowest rates amongst the court's 46 member states. More than 34,000 complaints were filed at the court last year. 

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