CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 1 avril 2025

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AND OTHERS v. THE NETHERLANDS (Application no. 2799/16 and 3 others – see appended list)   JUDGMENT Art 8 • Correspondence • Transmission and use in competition law proceedings of data lawfully obtained through telephone tapping in criminal investigations • Transmission of intercept data for further use by another law-enforcement authority constituted a separate interference with Art   8 rights, distinct from original interception • Minimum safeguards set out by the Court for communicating intercept data to another law-enforcement authority to avoid arbitrariness and abuse • Transmissions to be limited to material collected in a Convention-compliant manner • Breadth of margin of appreciation depended on the content and nature of the data at issue and not on applicant’s physical or legal nature or status • Minimum safeguards under Art 8 in principle the same for natural and legal persons • Impugned data transmission had legal basis in domestic law which fulfilled “foreseeability” requirements • Transmission authorisations by a non-judicial authority compatible with Art   8 • Art   8 not to be construed as guaranteeing prior notification of the transmission of intercept material or, by implication, to participate in any review prior to the transmission • In case-circumstances, absence of written reasoning in transmission authorisations and of prior notice of the transmissions compensated for by the effective ex-post facto judicial review conducting a de novo assessment and capable of affording the applicant companies appropriate redress • Redress in the form of the destruction of transmitted data or monetary compensation not necessarily required for a remedy concerning intercept data transmission • Restrictions on the use of such data might afford sufficient redress • Adequate safeguards against arbitrariness and abuse • Applicant companies afforded opportunity to effectively contest the transmissions • Adequate balancing exercise between interests at stake • Relevant and sufficient reasons justifying necessity and proportionality of interference for the purposes of enforcement of competition law Art 13 (+ Art 8) • Effective remedy   Prepared by the Registry. Does not bind the Court.   STRASBOURG 1 April 2025   This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE INTRODUCTION THE FACTS THE CIRCUMSTANCES OF THE CASE A.   Ships Waste Oil Collector B.V., Burando Holding B.V. and Port Invest B.V. v. the Netherlands (nos. 2799/16, 3124/16 and 3205/16 – “the first group of applicant companies”) 1.   Criminal proceedings and data transmission 2.   Administrative proceedings (a)   The decision by the NMA to impose fines and the administrative review proceedings (b)   Appeal proceedings before the Rotterdam Regional Court (c)   Further appeal proceedings before the Supreme Administrative Court for Trade and Industry 3.   Subsequent developments B.   Janssen de Jong Groep B.V. and Others v. the Netherlands (no.   2800/16) 1.   Criminal proceedings and data transmission 2.   Civil proceedings 3.   Administrative proceedings (a)   The decision by the NMA to impose fines and the administrative review proceedings (b)   Appeal proceedings before the Rotterdam Regional Court (c)   Further appeal proceedings before the Supreme Administrative Court for Trade and Industry 4.   Subsequent developments RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   Constitution of the Kingdom of the Netherlands B.   The Judicial and Criminal Data Act 1.   Relevant provisions 2.   Legislative history 3.   WJSG Instructions 4.   Relevant domestic case-law 5.   The Agreement between the Public Prosecution Service and the NMA C.   The Special Investigative Services Act D.   The Police Act E.   The Competition Act F.   The General Administrative Law Act G.   The Code of Criminal Procedure H.   The Decree on the retention and destruction of non-attached documents I.   The Civil Code J.   The Code of Civil Procedure II.   EUROPEAN UNION LAW A.   The ePrivacy Directive B.   The EIO Directive C.   Relevant case-law of the Court of Justice of the European Union (CJEU) III.   COMPARATIVE LAW MATERIAL THE LAW I.   JOINDER OF THE APPLICATIONS II.   ALLEGED VIOLATION OF ARTICLE 8 OF THE ... CONVENTION A.   The Chamber judgments B.   The parties’ submissions 1.   The applicant companies (a)   The legal basis for the interference and the “foreseeability” of the domestic law (b)   Safeguards against arbitrariness and abuse (c)   Legitimate aim and proportionality of the interference 2.   The Government (a)   Existence of an interference (b)   The legal basis for the interference and the “foreseeability” of the domestic law (c)   Safeguards against arbitrariness and abuse (d)   Legitimate aim and proportionality of the interference 3.   The third party C.   The Court’s assessment 1.   Existence of an interference and its scope 2.   Justification for the interference (a)   Applicable general principles (i)   Lawfulness and necessity in a democratic society (ii)   The level of protection for legal persons and the margin of appreciation (b)   Application to the present case (i)   Preliminary considerations (ii)   Whether the interference was in accordance with the law (α)   Whether there was a legal basis in Dutch law (β)   Quality of the law (iii)   Whether the interference pursued a legitimate aim (iv)   Whether the interference was “necessary in a democratic society” III.   ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION OPERATIVE PROVISIONS JOINT PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGES GUYOMAR AND RAVARANI JOINT PARTLY DISSENTING OPINION OF JUDGES BOŠNJAK AND DERENČINOVIĆ DISSENTING OPINION OF JUDGE SERGHIDES JOINT DISSENTING OPINION OF JUDGES SERGHIDES AND ARNARDÓTTIR DISSENTING OPINION OF JUDGE ARNARDÓTTIR, JOINED BY JUDGES SERGHIDES AND ŠIMÁČKOVÁ APPENDIX   In the case of Ships Waste Oil Collector B.V. and Others v.   the   Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Marko Bošnjak,   Arnfinn Bårdsen,   Lado Chanturia,   Mattias Guyomar,   Georges Ravarani,   Carlo Ranzoni,   Georgios A. Serghides ,   Tim Eicke ,   Lətif Hüseynov,   Jovan Ilievski,   Jolien Schukking,   Raffaele Sabato,   Saadet Yüksel,   Lorraine Schembri Orland,   Kateřina Šimáčková,   Davor Derenčinović,   Oddný Mjöll Arnardóttir , judges , and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 6 March 2024 and 15 January 2025, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in 4 applications (nos.   2799/16, 2800/16, 3124/16 and 3205/16) against the Kingdom of the Netherlands lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six limited liability companies incorporated under Dutch law, whose details are listed in the appended table (“the applicant companies”), on 7 January 2016. 2.     The applicant companies were represented by Ms M.C. van Heezik, a lawyer practising in Brussels, and Mr H.A. Bravenboer and Mr M. Bol, lawyers practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs. 3.     The applicant companies complained that the transmission of intercept data lawfully obtained in a criminal investigation to competition authorities had constituted a violation of their rights under Article 8 of the Convention and that they had not had access to an effective domestic remedy in respect of that complaint, as required by Articles 8 and 13 of the Convention. 4.     On 13 and 14 December 2018 the Government were given notice of the applications. 5.     The applications were allocated to the Third Section of the Court, pursuant to Rule 52 § 1 of the Rules of Court. On 16 May 2023 a Chamber of that Section, composed of   Pere Pastor Vilanova, Yonko Grozev, Jolien Schukking, Darian Pavli, Peeter Roosma, Ioannis Ktistakis and Andreas Zünd, judges, and Milan Blaško, Section Registrar, delivered three judgments in which it declared,   unanimously, the applications admissible. It further 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. A joint dissenting opinion of Judges Grozev, Pavli and Ktistakis was appended to each of the judgments. 6.     On 3 July and 9 and 10 August 2023 the applicant companies   requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 25   September 2023 a panel of the Grand Chamber accepted the request. 7.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule   24. 8.     The applicant companies and the Government each filed observations on the merits of the case (Rule 59 § 1). In addition, third ‑ party comments were received from the Government of the United Kingdom, who had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rules   71   §   1 and   44 §   3). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 6 March 2024. There appeared before the Court: (a)     for the Government Ms B. Koopman,   Agent , Ms C. Coert ,   Counsel , Ms E. Zijlstra ,   Adviser ; (b)     for the applicant companies Ms M.C. van Heezik , Mr H.A. Bravenboer , Mr M. Bol ,     Counsel , Ms C. Castelein ,   Adviser .   The Court heard addresses by Ms van Heezik, Mr Bravenboer and Ms   Koopman, as well as their replies to questions put by judges. INTRODUCTION 10.     The case concerns the transmission of intercept data lawfully obtained in a criminal investigation to another law-enforcement authority. The applicant companies complained that the transmission of the data to, and their use by, competition authorities had been neither “in accordance with the law” nor necessary in a democratic society on account, in particular, of the insufficiency of the procedural safeguards. THE FACTS THE CIRCUMSTANCES OF THE CASE A.    Ships Waste Oil Collector B.V. , Burando Holding B.V. and Port Invest B.V. v. the Netherlands (nos. 2799/16, 3124/16 and 3205/16 – “the first group of applicant companies”) 11 .     The first group of applicant companies are limited liability companies incorporated under Dutch law, engaged in the collection of waste liquids from ships in the Rotterdam port region. At the relevant time Burando   Holding B.V. was the sole shareholder and a board member of Port Invest B.V., which was in turn the sole shareholder and a board member of the I. company. 1.      Criminal proceedings and data transmission 12.     At the end of 2006, the Intelligence and Investigation Service ( Inlichtingen- en opsporingsdienst ) of the Ministry of Housing, Spatial Planning and the Environment ( Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer – “the VROM-IOD”), a special investigative service within the meaning of the Special Investigative Service Act ( Wet op de bijzondere opsporingsdiensten ; see paragraph 74 below) that operates under the authority of the public prosecutor ( officier van justitie ), began an investigation, under the codename “Toto”, into the I. company. That company was suspected of the criminal offence of forgery of documents (Article 225 of the Criminal Code ( Wetboek van Strafrecht )), and of involvement in the disposal of polluted waste, in contravention of environmental protection legislation (section 18.18 of the Environmental Management Act ( Wet   Milieubeheer )), amounting to a criminal offence. 13 .     In the context of this criminal investigation, the VROM-IOD, duly authorised by an investigating judge ( rechter-commissaris ), intercepted telephone conversations made by some of the I. company’s employees. These included conversations between the employees of the I. company and of the Ships Waste Oil Collector B.V. company. 14 .     Certain of those intercepted conversations were identified as being of potential interest to the Netherlands Competition Authority ( Nederlandse Mededingingsautoriteit – “the NMA”) because they contained indications that price-fixing was taking place. An official record ( proces-verbaal ) dated 21 April 2008 was drawn up by an official of the VROM-IOD, in which the evidence relating to the price-fixing was detailed and to which summary transcripts of some of the conversations were appended. 15 .     On 21 October 2008 the public prosecutor in charge of the investigation gave permission in accordance with section 39f of the Judicial and Criminal Data Act ( Wet Justitiële en Strafvorderlijke gegevens – “the WJSG”; see paragraph 61 below) for the official record of 21 April 2008 and the appended transcripts to be transmitted to the NMA by writing “transmission to the NMA approved” on the document and dating and signing it by hand. They were transmitted to the NMA on 29 June 2009. 16.     The NMA subsequently started an official investigation into possible violations of the Competition Act ( Mededingingswet ). 17 .     On 23   October 2009 the public prosecutor authorised the transmission of a further selection of transcripts and audio-recordings of telephone conversations intercepted in the “Toto” criminal investigation. In the authorisation for that transmission, the public prosecutor’s approval was stated in the following terms, followed by his signature: “I have no objection to providing the above-described data requested by the NMA.” 18 .     On 29 and 30 June 2010 the NMA inspectors visited the premises of the Ships Waste Oil Collector B.V. company and the I. company. They questioned members of the companies’ management under caution, in the course of which they played back a sound-recording of an intercepted telephone conversation. 19 .     Meanwhile, the NMA provided the VROM-IOD with a list of search terms to examine the entire criminal file for relevant material. The transcripts of the telephone conversations found as a result of that search were transmitted to the NMA on several dates in 2010. The transmission authorisations of 30   June, 6 July and an unspecified date in August 2010 contained the mention “For approval”, followed by the prosecutor’s signature. The most recent transmission of data, approved by the prosecutor in August 2010, took place on 8 or 9   September 2010. 20 .     It further appears from the information in the case file that as a result of the “Toto” criminal investigation, the I. company and one of its employees were summoned to appear before the Rotterdam Regional Court ( Rechtbank ) on 19 December 2008 on suspicion of having committed, on several occasions, acts in breach of Article 225 of the Criminal Code and section   18.18 of the Environmental Management Act. On 11 March 2010 an agreement to settle the criminal case was reached between the I. company and the public prosecutor. On the same day a similar agreement to settle the criminal case was also reached between the I. company’s employee and the public prosecutor. The I. company was to pay 50,000 euros (EUR) to avoid further criminal proceedings related to the charges against it, while its employee was to pay EUR 4,000 for the same reason. The Regional Court, having heard the parties on 5 July 2010, gave judgment on that same date. Having established that a settlement had been reached, the Regional Court declared the Public Prosecution Service’s case inadmissible ( het openbaar ministerie werd niet-ontvankelijk verklaard ), as had been requested by the prosecutor. 2.      Administrative proceedings (a)    The decision by the NMA to impose fines and the administrative review proceedings 21.     Based on the results of its investigation, the NMA concluded in a report of 28 December 2010 that during the period between 30 August 2005 and 31 July 2007 several companies, including the Ships Waste Oil Collector B.V. company and the I. company, had colluded with each other to allocate contracts and prevent or limit price competition in the field of ship-generated waste collection. The NMA held in its draft decisions that, in so doing, those companies had violated section 6 of the Competition Act (see paragraph 77 below). The report quoted extensively from the transcripts of the telephone conversations. 22 .     Following the submission of written comments ( zienswijze ) by counsel for the first group of applicant companies and a hearing held on 15   April 2011, the NMA gave its decisions on 16   November 2011. It found that the transcripts and recordings had been lawfully transmitted to it by decision of the public prosecutor. In terms of Article 8 of the Convention, the transmissions had been “in accordance with the law” in that they had had a statutory basis, had been foreseeable and had met a “pressing social need”, namely, the enforcement of competition law. There was no suggestion that the interceptions themselves had been unlawful, or that the competing interests had been incorrectly weighed up by the public prosecutor. The NMA further found the companies liable for infringements of section 6(1) of the Competition Act. It imposed a fine on the Ships Waste Oil Collector B.V. company in the amount of EUR 834,000. It also imposed a fine in the amount of EUR 1,861,000 on the three companies jointly and severally: the I. company and Port Invest B.V. were liable for the entire amount, and Burando Holding B.V. was liable for the maximum amount of EUR 621,000. Because of their interconnectedness (see paragraph 11 above), the NMA assumed that Port Invest B.V. and Burando Holding B.V. had exercised decisive influence over the I. company’s actions. 23.     The first group of applicant companies lodged a written objection ( bezwaarschrift ) with the NMA arguing, inter alia , that the intercepted telephone conversations should not have been admitted as evidence because they did not qualify as “criminal data” that could be transmitted on the basis of the WJSG (see paragraph 61 below), as the information had been irrelevant for the criminal investigation. They also protested about the lack of prior judicial review of the transmission of the data to the NMA. The Ships Waste Oil Collector B.V. company further submitted that it had never itself been suspected of any criminal offence. Moreover, as the criminal case had been settled by the I. company, no ex post facto judicial review of the lawfulness of the telephone tapping had taken place in the criminal proceedings. Also, intercept material could not be admitted in evidence because the NMA had no power to intercept communications. The NMA’s use of intercept material in administrative proceedings amounted to a way of bypassing the legal requirements that restricted the power to intercept. Lastly, they submitted that there had been no legal basis for the contact between the NMA and the VROM-IOD prior to the official transmission of the criminal data. 24.     The first group of applicant companies requested the NMA to give its consent to submit the objection directly to the Rotterdam Regional Court by way of appeal ( beroep ). The NMA gave its consent. (b)    Appeal proceedings before the Rotterdam Regional Court 25 .     The NMA submitted a defence statement ( verweerschrift ), explaining how the transmissions had been carried out and describing the contact it had had with the VROM-IOD in that connection (see paragraphs 13-19 above). The NMA had received the transcripts after the criminal investigation had been completed. It argued that the transmissions had complied with the requirements of the WJSG. In particular, the transmitted material had been part of the criminal file; it had therefore been criminal data within the meaning of the WJSG (see paragraph 61 below). The interference with the first group of applicant companies’ rights under Article 8 of the Convention had been necessary and proportionate. The transmissions had concerned business-related telephone conversations that had taken place during the performance of their employees’ duties. They had the possibility of fully contesting the authenticity and reliability of the evidence in the ongoing administrative proceedings. Furthermore, the companies should have used the civil remedy for retrospective and independent review by a civil court of the Public Prosecution Service’s decision, which was classified as a “factual act” ( feitelijke gedraging ) in the domestic law. 26.     The Regional Court gave judgment on 11 July 2013 (ECLI:NL:RBROT:2013:5042), declaring the appeal well founded. Referring to its recent judgment of 13 June 2013 (see paragraph 53 below), it reiterated that the intercepted telephone data did qualify as “criminal data” within the meaning of the WJSG. Furthermore, it found no record of any weighing of interests to review, since the public prosecutor had merely given handwritten permission for the transmission of the official record of 21 April 2008 (see paragraphs 15 and 17 above) and, for the subsequent transmissions, on pre-printed forms without any reasoning (see paragraph 19 above). It followed from that that the transcripts had to be excluded as evidence. Since the NMA’s investigation and their decisions had mainly relied on this evidence, the Regional Court quashed the NMA’s decisions. (c)    Further appeal proceedings before the Supreme Administrative Court for Trade and Industry 27 .     The Consumer and Market Authority ( Autoriteit Consument en Markt – “the ACM”), the successor body to the NMA, lodged a further appeal ( hoger beroep ) with the Supreme Administrative Court for Trade and Industry ( College van Beroep voor het bedrijfsleven ). It argued that the transmission of criminal data by the Public Prosecution Service to another entity would only be incompatible with domestic law or Article 8 of the Convention if it could not be considered necessary in view of a compelling general interest or if it did not comply with the requirements of proportionality and subsidiarity. Under the WJSG, that assessment fell to the Public Prosecution Service and, subsequently, the civil courts in the form of an   ex post facto   judicial review. The transmission of criminal data to a third party on the basis of section 39f(1) of the WJSG was a “factual act”, not a decision within the meaning of the General Administrative Law Act ( Algemene wet bestuursrecht – “the AWB”), and therefore not amenable to judicial review by the administrative courts. Such a transmission by a public prosecutor required neither reasoning nor an   ex ante   review of its lawfulness. According to the ACM, the use in evidence of the criminal data received had been admissible as there were no indications that the data had been obtained unlawfully or, even if that were the case, that “the manner of that obtainment ran counter to the proper behaviour expected of authorities to such an extent that its use could not be considered permissible under any circumstances”. 28 .     As regards the transmission of the data, the ACM noted that it could be considered necessary for an important public interest: the economic well ‑ being of the Netherlands. The data concerned possible price fixing which was among the most serious breaches of the prohibition on cartels. Moreover, between them, the first group of applicant companies had an 85 ‑ 90% market share, so the potential damage was significant. The transmitted transcripts concerned strictly business-related conversations; only conversations that could be relevant to the ACM’s investigation into a possible breach of the Competition Act had been included. The prior contact between VROM-IOD and ACM officials had been precisely aimed at ensuring the proportionality of the transmissions. As a specialised authority, the ACM could better assess which data could be relevant for ascertaining the existence of a competition-law violation and its seriousness. It was unlikely that the information regarding possible agreements on prices could have been obtained by the ACM in a less intrusive manner as the price-fixing agreements had not been documented in writing. The compelling public interest in transmitting the data had therefore outweighed the interest in protecting the rights of the first group of applicant companies or their employees. Lastly, the ACM could lawfully receive intercept material, as the WJSG did not require recipients to have the power themselves to intercept communications. The ACM’s further appeal was joined by the Board of Prosecutors-General. 29.     The first group of applicant companies lodged a cross-appeal ( incidenteel hoger beroep ) on the grounds that the Regional Court should have found that, because the recordings of the intercepted telephone conversations were not included in any criminal file, they were therefore not “criminal data” that could be transmitted to another entity in accordance with section 39f(1) of the WJSG. Referring to Article 126cc of the Code of Criminal Procedure (see paragraph 82 below), the I. company, Port Invest B.V. and Burando Holding B.V. further argued that some of the data transmissions had been unlawful because they had taken place more than two months after the settlement agreement had been reached between the I.   company and the public prosecutor, which, according to the first group of applicant companies, had marked the end of the criminal proceedings. 30 .     On 14 April 2014 the Supreme Administrative Court for Trade and Industry issued a decision (ECLI:NL:CBB:2014:151) in which it rejected the appeal of the Board of Prosecutors-General as inadmissible. It held that the interests entrusted to the Board of Prosecutors-General were not directly affected by the penalty decisions which were the subject of the judgment of the Regional Court being challenged, and concluded that the Board of Prosecutors-General had no legal interest of its own and hence no standing to bring proceedings . 31 .     The Supreme Administrative Court for Trade and Industry gave judgment on 9 July 2015 (ECLI:NL:CBB:2015:192). It quashed the Regional Court’s judgment, dismissed the first group of applicant companies’ cross ‑ appeal and referred the case back to the Regional Court. Its reasoning included the following: “3.5     ... Under section 1, introductory sentence and subsection (b), of the WJSG, the term criminal data in this Act and the provisions based on it is understood to mean: personal data or data concerning a legal person obtained in the context of a criminal investigation, which the Public Prosecution Service processes in a criminal file or by automated means. The Supreme Administrative Court for Trade and Industry agrees with the Regional Court that the telephone taps submitted to the ACM qualify as criminal data within the meaning of the above-mentioned provision. It follows from the passages in the Explanatory Memorandum ... that the legislature intended the term ‘criminal file’ ( strafdossier ) in this legislative provision to be broad. In this connection, the Supreme Administrative Court for Trade and Industry also refers to paragraph 3.4.6 of the judgment of the Supreme Court of 20 April 2012 in the Trafigura case (ECLI:NL:HR:2012:BV3436 [see paragraph 72 below]), in which it was considered, among other points, that a criminal file could relate to acts other than those for which the Public Prosecution Service had instituted a prosecution. The Supreme Administrative Court for Trade and Industry cannot agree with the assertion ... that the telephone tap data ( tapgegevens ) have no relevance for the prosecution and qualify as by-catch, and therefore do not belong in the criminal file. Furthermore, as the ACM has stated, in this case it could not be ruled out that the telephone tap data would be relevant at some stage of the criminal proceedings ... In any case, the telephone tap data were stored digitally and to that extent processed automatically. In this respect, it should be noted that the concept of ‘processing personal data’ ... is broadly defined: any operation or set of operations which relates to personal data, including the collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or any other form of making available, alignment or combination, blocking, erasure or destruction of data. ... 4.3     ... The Explanatory Memorandum ... states that, in view of Article 8, paragraph   2, [of the Convention], the term ‘compelling general interest’ must be understood to mean the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. The ACM is charged with the enforcement of the Competition Act and, in particular, the supervision and investigation of cartels, prohibited price-fixing and other forms of collusion between companies. In view of the nature of the ban on cartels in section 6 of the Competition Act, the [Supreme Administrative Court of Trade and Industry] is of the opinion that in this case there exists a compelling general interest, namely the economic well-being of the country. In this regard, reference is also made to the judgment of 2   October 2014 [by the European Court of Human Rights] in the case of DELTA PEKÁRNY a.s. v. the Czech Republic , no.   97/11, §   81, 2 October 2014. Furthermore, the provisions of section   39f(1), introductory sentence and subsection (c), of the WJSG have been complied with. After all, the information was transmitted for the purpose of the enforcement of legislation by the ACM. 4.4     With respect to the question whether the transmission was necessary, as referred to in section 39f(2) of the WJSG, the Regional Court correctly pointed out that the Explanatory Memorandum to the amendment of the WJSG shows that a careful balancing of interests must take place when data relating to criminal records are transmitted. However, the Supreme Administrative Court for Trade and Industry does not agree with the Regional Court’s opinion that, in view of what is stated in the Explanatory Memorandum, the transmission of criminal data must be based on a weighing of interests by the public prosecutor that is identifiable and can be assessed by the court – made at the time of the transmission and apparent at that time. The availability of written reasoning by the public prosecutor at the time of the transmission may simplify the verification of compliance with section   39f of the WJSG, but neither the law nor the legislative history suggests that the unavailability of written reasoning at the time of a transmission means that the requirements for transmission have not been met. In view of the foregoing, the judgment under appeal must be quashed to that extent. 4.5     The Supreme Administrative Court for Trade and Industry will now assess on the basis of the parties’ arguments whether the evidence obtained in the context of a criminal investigation was lawfully provided to a public authority that used this material in proceedings for the imposition of an administrative fine. 4.6     In this connection, it must first be established whether the transmission of criminal data, in this case consisting of telephone tap data, in accordance with section   39f of the WJSG, violates Article 8 of the [Convention]. Under the second paragraph of Article   8 of the [Convention], an interference with the right to privacy is only permitted to the extent that it is provided for by law and is necessary in a democratic society in the interest of, inter alia , the economic well-being of the country. The starting-point for the assessment is that the telephone taps from which the data in question were obtained were conducted after the investigating judge had given permission to do so. ... The public prosecutor’s competence to transmit the telephone tap data has its statutory basis in the WJSG. Moreover, as to the lawfulness of this transmission, the law provides for judicial review procedures with sufficient safeguards, both under civil law in the context of the transmission of the data and under administrative law in the context of the review of the decision to impose a fine based on those data. The report in these cases shows that the ACM extensively assessed the evidence, including the telephone tap data, within the framework of the determination of whether there had been a violation of section 6(1) of the Competition Act. After the report was published and before the ACM decided to impose a fine, the appellants were given the opportunity to put forward their views on the report, which they did. Finally, the Supreme Administrative Court for Trade and Industry considers a sufficient case has been made out that the information about the alleged price-fixing could not reasonably have been obtained by the ACM in a different, less intrusive manner, since such agreements are not, as a rule, put in writing. In the judgment of the provisional-measures judge of the Regional Court of The Hague of 26 June 2009 (ECLI:NL:RBSGR:2009:BJ0047 [see paragraph 46 below]), which was also cited by the parties, the provisional-measures judge gave judgment in a case comparable to the present one about the lawfulness of the transmission of telephone taps by the Public Prosecution Service to the ACM, and in doing so he also arrived at this conclusion with regard to the proportionality of the transmission. In view of the foregoing, the Supreme Administrative Court for Trade and Industry sees no evidence that the transmission of the telephone tap data to the ACM in accordance with section 39f of the WJSG violates Article 8 of the [Convention] or any other treaty provision. ... 4.8 ... The circumstance that the ACM itself does not have the competence to intercept telephone conversations does not constitute a ground for finding that the use of the intercepted telephone conversations by the ACM should be considered unacceptable. The WJSG provides precisely for the possibility that such data, obtained using coercive measures in criminal proceedings, may be transmitted to, among others, public authorities that do not themselves have the competence to make use of such coercive measures. Contrary to the argument made by the I. company, Port Invest B.V. and Burando Holding B.V., the circumstance that the ACM – in consultation with the VROM   -   IOD   –   , having [taken cognisance of transcripts and recordings of intercepted telephone conversations], made a selection from the large amount of data available and provisionally considered relevant by the VROM-IOD, does not, in the given situation, lead the Supreme Administrative Co