AFFAIRE BURANDO HOLDING B.V. ET PORT INVEST c. PAYS-BAS

• Judgment Date: 16 May 2023
• ECLI: ECLI:CE:ECHR:2023:0516JUD000312416
• Counsel: BRAVENBOER H.A.
• Date: 16 May 2023
• Application Number: 3124/16;3205/16
• Court: Third Section (European Court of Human Rights)
• Respondent State: Holanda
• Applied Rules: 8;8-1;8-2;13;13+8-1

THIRD SECTION

CASE OF BURANDO HOLDING B.V. AND PORT INVEST B.V.

v. THE NETHERLANDS

(Applications nos. 3124/16 and 3205/16)

JUDGMENT

Art 8 • Correspondence • Transmission and use in competition law proceedings of data lawfully obtained through telephone tapping in criminal investigations • Impugned data transmission sufficiently foreseeable under applicable domestic law • Extensive ex post facto judicial oversight • Adequate safeguards • Domestic system adequately capable of avoiding abuse of power • Art 8 not requiring ex ante authorisation by a court in specific case-context • Adequate balancing exercise between interests at stake • Relevant and sufficient reasons justifying necessity and proportionality of interference

Art 13 (+ Art 8) • Effective remedy

STRASBOURG

16 May 2023

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Burando Holding B.V. and Port Invest B.V. v. the Netherlands,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Pere Pastor Vilanova, President,
Yonko Grozev,
Jolien Schukking,
Darian Pavli,
Peeter Roosma,
Ioannis Ktistakis,
Andreas Zünd, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the applications (nos. 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 two Dutch limited liability companies, Burando Holding B.V. and Port Invest B.V. (hereinafter also referred to as “the applicant companies”), on 7 January 2016;

the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaints concerning Articles 8 and 13 of the Convention;

the parties’ observations;

Having deliberated in private on 4 April 2023,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the transmission of data lawfully obtained in a criminal investigation to another law enforcement authority. The applicant companies complain that the transmission of the data to and their use by the Competition Authority had not been foreseeable and that procedural safeguards were insufficient.

THE FACTS

2. The applicant companies are limited liability companies incorporated under Dutch law, engaged in the collection of waste liquids from ships in the Rotterdam port region. Burando Holding B.V. was the sole shareholder and a board member of Port Invest B.V. at the relevant time. Port Invest B.V. was in turn the sole shareholder and a board member of the I. company at the relevant time. The applicant companies were represented by Mr H.A. Bravenboer, a lawyer practising in Rotterdam.

3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.

4. The facts of the case may be summarised as follows.

1. CRIMINAL INVESTIGATION AND DATA TRANSMISSION

5. 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 – hereinafter, “VROM-IOD”), a special investigative service within the meaning of the Special Investigative Services Act (Wet op de bijzondere opsporingsdiensten; see paragraph 28 below) that operates under the authority of the public prosecutor (officier van justitie), began an...