THIRD SECTION
CASE OF JANSSEN DE JONG GROEP B.V. AND OTHERS
v. THE NETHERLANDS
(Application no. 2800/16)
 
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 CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 01/04/2025
 
This judgment may be subject to editorial revision. In the case of Janssen de Jong Groep B.V. and Others 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 application (no. 2800/16) 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 three Dutch limited liability companies, Janssen de Jong Groep B.V., Janssen de Jong Infra B.V. and Janssen de Jong Infrastructuur Nederland B.V. (hereinafter also referred to as “the applicant companies”), on 6 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 engaged in construction, incorporated under Dutch law. Janssen de Jong Groep B.V. is the sole shareholder of Janssen de Jong Infrastructuur Nederland B.V., which is in turn the sole shareholder in Janssen de Jong Infra B.V. They were initially represented by Mr G. van der Wal, then by Ms L.Y.M. Parret, and currently by Ms M.C. van Heezik, a lawyer practising in Brussels. 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. CRIMINAL INVESTIGATION AND DATA TRANSMISSION
5. Around 2007 suspicions arose that local government officials had been bribed by building contractors desirous of winning government contracts for infrastructure projects. The Public Prosecution Service (Openbaar Ministerie), assisted by the National Police Internal Investigations Department (Rijksrecherche), began an investigation under the codename “Cleveland”, which implicated the applicant companies as suspects. In the context of this investigation, some of the applicant companies’ employees were subjected to interception of their telephone conversations. The interception orders were authorised by an investigating judge (rechter‑commissaris). 6. Certain intercepted telephone conversations were identified as being of potential interest to the Netherlands Competition Authority (Nederlandse Mededingingsautoriteit – “the NMA”) because they contained indications of price-fixing. On various dates in July 2008 police officers gave NMA officials access, in strict confidence and on police premises, to a selection of written reports (processen-verbaal) of the intercepted communications. Upon request by the NMA, the police subsequently also gave access to other written reports that concerned the same companies and persons as in the initial selection. The NMA officials were allowed to make notes, which they had to leave with the police before they left. The NMA drew up reports of these meetings. 7. On 19 August 2008 the public prosecutor (officier van justitie) in charge provided a CD to the NMA with selected recordings of the intercepted telephone conversations for information purposes only and in strict confidence. He indicated in his accompanying letter that they could not be used for any other purpose except with his permission. 8. On 9 December 2008 the NMA started an official investigation into possible violations of the Competition Act (Mededingingswet) and requested the Public Prosecution Service permission to use the data. 9. On 16 December 2008 the public prosecutor wrote to the NMA in the following terms:
“Having regard to your fax message of 15 December 2008 I give you permission to use the information gathered during the ‘Cleveland’ investigation (which was carried out by the National Police Internal Investigations Department under my supervision) for the purpose of your investigation(s) into violations of the Competition Act.”
According to information submitted by the Government the data transmitted to the NMA amounted to approximately 2% of the total number of recordings of telephone conversations intercepted in the context of the “Cleveland” investigation. 10. On 27 and 28 January 2009 the NMA inspectors visited the business premises of one of the applicant companies and requested access to their books for their investigation and on 21 April 2009 the NMA inspectors questioned employees of the applicant companies under caution. 11. On 28 May 2009 the public prosecutor in charge wrote to the applicant companies’ then counsel that information obtained in the course of the “Cleveland” investigation had been transmitted to the NMA in accordance with the Judicial and Criminal Data Act (Wet Justitiële en Stravorderlijke gegevens – “the WJSG”; see paragraph 22 below) and in accordance with the Transmission of criminal data for purposes other than criminal law enforcement (Designation) Order (Aanwijzing verstrekking van strafvordelijke gegevens voor buiten de strafrechtspleging gelegen doeleinden; see paragraphs 27-31 below). CIVIL PROCEEDINGS
12. The applicant companies summoned the State before the provisional‑measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague, seeking a provisional order requiring the NMA to return the transmitted data to the Public Prosecution Service and to desist from making use of them, and seeking a provisional order prohibiting the Public Prosecution Service from the transmission of such data. They relied, inter alia, on Article 8 of the Convention. 13. The provisional-measures judge gave judgment on 26 June 2009, dismissing the applicant companies’ requests (ECLI: NL: RBSGR: 2009: BJ0047). His reasoning included the following:
“In my provisional view, it is for the present sufficiently established that ... the transmission of the intercepted telephone conversations to the NMA with a view to further investigation by the NMA and with a view to the enforcement of section 6(1) of the Competition Act, is necessary for the [protection of the] economic well-being of the Netherlands. I consider that this interest carries more weight than the interest of protecting the privacy of [the applicant companies]. True, [the applicant companies] have disputed that the interference with their interest resulting from the transmission of the telephone conversations to the NMA is proportionate to the interest of the economic well-being of the Netherlands, but they have failed to make out a sufficiently well‑reasoned case for the opposite view. Nor has a sufficiently convincing prima facie case been made out that the information concerning the alleged price-fixing among building contractors could reasonably have been obtained in a different, less disadvantageous way, given that such agreements tend as a rule not to be committed to paper. The above leads me to conclude that the transmission of the intercepted telephone conversations by the Public Prosecution Service based on section 39f(1) of the WJSG is not incompatible with Article 8 of the Convention.”
14. The applicant companies did not appeal against this judgment and did not institute civil proceedings on the merits of the case. ADMINISTRATIVE PROCEEDINGS
15. Based on the results of its investigation, the NMA concluded that during the period from March to December 2008, one of the applicant companies coordinated bidding figures with other companies and exchanged information about their intended bidding behaviour prior to bidding on a number of tenders. In doing so, these companies violated section 6 of the Competition Act (see paragraph 33 below). On 29 October 2010 the NMA imposed a fine on the applicant companies in the amount of 3,000,000 euros (EUR). 16. The applicant companies lodged a written objection (bezwaarschrift), which the NMA dismissed on 8 March 2012. 17. The applicant companies subsequently lodged an appeal (beroep) with the Rotterdam Regional Court. They submitted that the transmission of the data was unlawful, arguing that the WJSG was not applicable because the transmitted data did not qualify as ‘criminal data’. In that respect they noted that the recordings of the intercepted telephone conversation had not been processed into the criminal file and that this information had been irrelevant for the criminal investigation. Further, they argued, relying on Articles 8 and 13 of the Convention, that in any event it had not been foreseeable on the basis of the applicable law that those data might be transmitted, and that no prior review by an independent court had taken place. The intercepted telephone conversations should therefore not be admitted as evidence. In any case, there had been no price-fixing. 18. The Regional Court gave judgment on 13 June 2013 (ECLI:NL:RBROT:2013:CA3079), declaring the applicant companies’ appeal well-founded. Referring to the Explanatory Memorandum (see paragraph 24 below), it held that the transmitted data did qualify as ‘criminal data’ within the meaning of the WJSG and that section 39f(1) provided the statutory basis for the impugned transmission of data. However, since the case file did not contain a knowable, reviewable weighing of interests by the public prosecutor, the Regional Court was of the view that the NMA was not entitled in this case to use the intercepted telephone conversations as evidence. It considered that the NMA should, before making use of this information, have satisfied itself that the public prosecutor was of the view that there was a compelling general interest at stake, and why transmission was necessary for that purpose, because otherwise justice would not be done to the requirements of Article 8 of the Convention, which are precisely the requirements of which section 39f of the WJSG is intended to ensure compliance. Since the NMA, apart from the transmitted data, had not provided sufficient other evidence, the Regional Court quashed the NMA’s decision. 19. The Consumer and Market Authority (Autoriteit Consument en Markt – hereinafter “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). The ACM, inter alia, argued that the transmission of the data by the Public Prosecution Service to another public authority would only be contrary to domestic law or to Article 8 of the Convention if it could not be considered necessary with a view to a “compelling general interest” or if it did not comply with the requirements of proportionality and subsidiarity. That assessment fell to be made, according to the WJSG, by the civil courts in the shape of an ex post facto judicial review, which had indeed taken place in the present case. The transmission of data to another public authority 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; see paragraph 34 below) and therefore not amenable to judicial review by the administrative courts. Such a factual act required neither reasoning nor an ex ante judicial review of its lawfulness. 20. The applicant companies lodged a cross-appeal (incidenteel hoger beroep) on the grounds that the Regional Court had failed to find that the recordings of the intercepted telephone conversations were not properly part of any criminal file and thus not “criminal data” that may be transmitted to another entity in accordance with section 39f(1) of the WJSG. 21. The Supreme Administrative Court for Trade and Industry gave judgment on 9 July 2015 (ECLI:NL:CBB:2015:193). It quashed the Regional Court’s judgment, dismissed the applicant companies’ cross-appeal and referred the case back to the Regional Court. Its reasoning included the following:
“3.4  ... 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 26 below]), in which it was considered, among other things, that a criminal file may relate to more acts than those for which the Public Prosecution Service institutes a prosecution. The assertion ... that the telephone tap data [tapgegevens] have no relevance for the prosecution and qualify as by-catch, for which reason this material does not belong in the criminal file, is not followed by the Supreme Administrative Court for Trade and Industry. Furthermore, as the ACM has stated, in this case it could not be ruled out that the telephone tap data at any stage of the criminal proceedings would have relevance ... 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 in any case 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. [..].
4.6  ... The Explanatory Memorandum ... states that, in view of Article 8, paragraph 2, [of the] ECHR, 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 coordination between companies. In view of the nature of the cartel ban in section 6 of the Competition Act, the [Supreme Administrative Court for Trade and Industry] is of the opinion that in this case there is a compelling general interest, namely the economic well‑being of the country. In this regard, reference is also made to the ECHR judgment of 2 October 2014 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 in order for the ACM to supervise compliance with regulations.
4.7  With respect to the question of 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 the data relating to criminal records are transmitted. However, the Supreme Administrative Court for Trade and Industry does not follow 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 known and can be assessed by the court – made at the time of the transmission and apparent at that time. The availability of written reasoning from 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 legislative history suggests that the unavailability of written reasoning at the time of 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.
4.8  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.
4.9  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 ECHR. Under the second paragraph of Article 8 of the ECHR, 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 is statutorily grounded in the WJSG. Moreover, as to the lawfulness of this obtainment [sc. by the ACM], the law provides for a judicial procedure with sufficient guarantees, 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 these 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 in reason 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), 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 provision. 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 39 of the WJSG violates Article 8 of the ECHR or any other treaty provision. [..]. The circumstance that the ACM itself does not have the competence to intercept telephone conversations does not constitute a ground for the 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 applicant companies], the circumstance that the ACM had access to a bulk of the data that were available and provisionally considered relevant by the public prosecution service, on the basis of which a selection was made, does not, in the given situation, lead the Supreme Administrative Court for Trade and Industry to find that the transmission took place contrary to the WJSG.”
RELEVANT LEGAL FRAMEWORK AND PRACTICE
The Judicial and Criminal Data ActRelevant provisions

22. At the relevant time the WJSG provided as follows:
Section 1
“In this Act and the provisions made pursuant thereto, the following definitions shall apply:
... (b)  criminal data: personal data or data concerning a legal person obtained in the context of a criminal investigation, which the public prosecutor processes in a criminal file or by automated means; ...”
Section 39b
“(1) The Board of Procurators General shall only process criminal data if this is necessary for the proper discharge of the duties of the Public Prosecution Service or to comply with another statutory obligation. ...”
Section 39f
“(1)  The Board of Procurators General may ... in so far as it is necessary in view of a compelling general interest [zwaarwegend algemeen belang], transmit criminal data to persons or public authorities [instanties] for the following purposes: ... (c)  enforcement of legislation;
(2)  The Board of Procurators General may only transmit criminal data to persons or official bodies as referred to in the first paragraph to the extent that those data, for those persons or official bodies:
(a)  are necessary in view of a compelling general interest or the determination, exercise or defence of a right in law ...”
Legislative history
23. Section 39f of the WJSG was enacted pursuant to a transitional provision of the Personal Data Protection Act, which required a lex specialis for the transmission of personal criminal data. 24. The following extracts are taken from the Explanatory Memorandum (Memorie van Toelichting) to the bill that led to the amendment of the WJSG (Lower House of Parliament, parliamentary year 2002-03, 28 886, no. 3, pp. 3, 5, 7-8 and 13):
“The proposed section 1(b) of this bill defines criminal data as data processed about a natural or legal person in the context of a criminal investigation. These data can be included in the case documents and processed in a criminal file, [the Public Prosecution Service’s case management system] or the higher appeal systems. The Code of Criminal Procedure does not contain a definition of the term ‘case documents’ [processtukken]. In practice, the concept is broadly interpreted. [..]. The proposed sections 39e and 39f require the provision of criminal data to third parties to be ‘necessary in view of a compelling general interest’. [..]. In view of Article 8 § 2 of the ECHR, 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 and crime, the protection of health or morals or the protection of the rights and freedoms of others. [..]. In weighing the interests [of the suspect and the compelling general interest against each other], the Public Prosecution Service should also, considering the need for the transmission which it must be able to demonstrate, take into account the principles of proportionality and subsidiarity. In addition to weighing these interests, the Public Prosecution Service should consider whether the requested transmission of information, being a form of further processing of the requested data, is not incompatible with the aim for which these were added to the criminal file at the time, namely the prosecution of one or more criminal acts. As a final matter, the receiver of the information should have a basis on which to be permitted to receive the information requested. [..]. The decision of the Public Prosecution Service to transmit criminal data of the person concerned to a third party under the proposed sections 39e or 39f cannot be regarded as a decision within the meaning of section 1:3, first paragraph, of the General Administrative Law Act [see paragraph 34 below]. ... The act is aimed solely at the factual transmission of information relating to criminal data.”
Relevant domestic case-law
25. In his advisory opinion to the Supreme Court of 3 February 2012 in the Trafigura case (ECLI:NL:PHR:2012:BV3436 – see paragraph 21 above), which concerned a civil action against a transmission of data under section 39f of the WJSG, the Procurator General stated the following (footnotes omitted):
“3.6. This case does not concern an appeal against a decision of the public prosecutor [within the meaning of the General Administrative Law Act (Algemene Wet Bestuursrecht – “the AWB”)]. In connection with what was claimed, the provisional-measures judge had to give a preliminary judgment about the lawfulness of a factual act [feitelijke gedraging] of the public prosecutor, namely the transmission of the data to [company A]. This is in line with the design of the WJSG. ... The lawfulness of the factual act of the Public Prosecution Service (the transmission) does not depend on the reasons given by the person who carried out the act at the time or, as in this case, sometime later in an email. The assessment of the lawfulness of a factual act can be carried out by the court afterwards and independently.”
26. In its judgment of 20 April 2012 in that case (ECLI:NL:HR:2012:BV3436), the Supreme Court took the same approach. With regard to the definition of criminal data, it considered:
“Section 39f(1) of the WJSG does not require that the transmission of criminal data ... relate solely to offences which are the subject of a prosecution, since a criminal file may relate to more facts than those which are the subject of a prosecution.”
The Transmission (Designation) Order
27. The Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) provides a legal basis for the Board of Prosecutors General to give instructions, in the format of (designation) orders, to the Public Prosecution Service on the performance of its tasks and the exercise of its powers. 28. The Transmission of criminal data for purposes other than criminal law enforcement (Designation) Order (Aanwijzing verstrekking van strafvordelijke gegevens voor buiten de strafrechtspleging gelegen doeleinden; “the Transmission (Designation) Order”), as it stood at the relevant time (published in the Official Gazette (Staatscourant) of 28 January 2008, no. 19), provided further details about the cases in and the conditions under which the Public Prosecution Service might transmit information under the WJSG. 29. As relevant to the case before the Court, the Transmission (Designation) Order provided that the Board of Procurators General could delegate (mandateren) its power to transmit criminal data within the meaning of section 39f of the WJSG, to, inter alios, the chief advocates general (hoofdadvocaten-generaal), who had the power to sub-delegate to individual advocates general and public prosecutors. 30. The Transmission (Designation) Order also contained further principles and instructions, including a flowchart, for the exercise of the power to transmit. The power to transmit was a discretionary power, not an obligation. It could be exercised upon request or proprio motu, but only after a balancing of interests. As regards the applicable principles of subsidiarity, necessity and proportionality, it was explained that these are closely interrelated in the assessment of whether, and if so, in what form, criminal data could be transmitted. Such data might only be transmitted to public authorities if there is a legal basis for that authority to receive such information; if there was no other way for that authority to obtain the information that was less intrusive into the privacy of the person concerned; and if it was necessary for a purpose defined in section 39f of the WJSG. 31. The Transmission (Designation) Order emphasised that a decision to transmit was not a decision within the meaning of the AWB and thus not subject to administrative legal remedies. If a concerned party was of the opinion that a transmission had been unlawful, the only legal remedy was an appeal to the civil judge in tort proceedings (onrechtmatige daad). The Competition Act
32. Section 5 of the Competition Act, as it stood at the relevant time, provided that the NMA was charged with the enforcement of that Act. 33. Section 6(1) of the Competition Act, as it stood at the relevant time, prohibited agreements between enterprises, decisions by associations of enterprises and concerted practices aimed at or with the effect of the prevention, restriction or distortion of competition within the Netherlands market (price-fixing). The General Administrative Law Act
34. Section 1:3 of the AWB defines a “decision” as a written decision by an administrative body, involving a legal act under public law. Section 3:46 of the AWB provides that a decision must be based on proper reasoning. It follows from sections 7:1 and 8:1 of the AWB that the administrative legal remedies of objection (bezwaar) and appeal to the administrative judge (beroep) may be instituted against decisions within the meaning of section 1:3. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
35. The applicant companies complained that the transmission to the NMA of data that were irrelevant to the criminal investigation had constituted a violation of their rights under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
36. The Government did not submit any objections against the admissibility of the complaint. 37. The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant companies
38. The applicant companies submitted that the transmission of the tapped information to the NMA had not been in accordance with the law. They argued that it had not been foreseeable that the data which had no relevance to the criminal investigation were “criminal data” within the meaning of the WJSG. Furthermore, they argued that it had not been foreseeable that the NMA would be in a position to receive and use such data in the light of the fact that it had no powers of its own to intercept communications and that this government body was not explicitly mentioned in the relevant legal instrument. They further submitted that it had not been foreseeable that the data could be transmitted without any prior knowable weighing of interests in written form and that this balancing test could be carried out afterwards by the courts instead. They considered their case to be comparable to that in Dragojević v. Croatia (no. 68955/11, 15 January 2015). Lastly, they argued that it had not been foreseeable on the basis of the applicable domestic law that the NMA could gain confidential access to the data before the official transmission. In their opinion the legislature had failed to set out in sufficient detail in the domestic law the extent of the authorities’ discretion and the manner it is to be exercised, relying on Valenzuela Contreras v. Spain, 30 July 1998, § 60, Reports of Judgments and Decisions 1998-V. 39. The applicant companies further submitted that the interference had not been “necessary in a democratic society”, arguing that the WJSG did not contain sufficient guarantees against arbitrary interferences and that the interference was not proportionate. Relying on Sanoma Uitgevers B.V. v. the Netherlands ([GC], no. 38224/03, § 90, 14 September 2010), they argued that an ex ante assessment of the transmission carried out by a judge had been necessary; such an assessment should not have been entrusted to the public prosecutor. Further, they argued that the ex post review of the transmission by the courts as provided under the domestic law was not sufficient, as it could not prevent irreparable harm. They suggested that the case-law of the civil courts showed that in practice they were reluctant to find a violation of fundamental human rights if administrative proceedings in which such questions could be addressed could subsequently be instituted. They further argued that the review by the administrative courts did not suffice because it only related to the question whether evidence obtained by a transmission of data was lawful, and not to the transmission as such. (b)   The Government
40. The Government submitted that the foreseeability and safeguards required under Article 8 of the Convention should be established with reference to the seriousness of the interference. Since the transmission of data lawfully collected is not equivalent to an interception of communications, the procedural safeguards did not, in their opinion, need to be as stringent as those required in cases of interferences of that type. 41. In their view, the applicable law clearly described what information might be transmitted, by whom, to whom, under what conditions and to what end. They noted that the data transmitted in the present case were obtained in a criminal investigation with the authorisation of the investigating judge, that those data were subsequently stored digitally, thus processed electronically by the Public Prosecution Service, and therefore qualified as “criminal data” within the meaning of section 1 of the WJSG (see paragraph 22 above). That the transmitted data had not been used for the criminal prosecution does not mean that they are no criminal data as defined by law. The data had been transmitted to the NMA, an official body charged with the enforcement of legislation within the meaning of section 39f of the WJSG in the compelling general interest of the protection of the economic well-being of the country and for a purpose listed in section 39b of the WJSG. That the NMA had no power to intercept communications is not relevant for the question of foreseeability of the interference. In the WJSG the legislature set the scope for the transmission of lawfully obtained information precisely with person or bodies who do not themselves have the power to obtain such information. 42. The Government further submitted that adequate safeguards had been in place and that the interference was not disproportionate. They pointed out that criminal data may only be transmitted on the basis of strict criteria laid down in the WJSG. A ‘compelling general interest’ must exist, and information may only be transmitted in pursuit of one of the statutory purposes exhaustively listed in section 39f, paragraph 1, of the WJSG. For every transmission a balancing exercise by the Public Prosecution Service, guided by the principles set out in the Transmission (Designation) Order (see paragraphs 27-30 above), was required beforehand. The law did not prescribe that the reasoning of such a balancing test had to be provided in writing. This had been a conscious choice by the legislature. In addition, the law provided for safeguards in the form of judicial review ex post facto. The civil courts were competent to adjudicate on the transmission in tort proceedings, while the administrative courts could rule on the lawfulness of evidence obtained by transmission. Ex ante judicial review was not required either under domestic law or under Article 8 of the Convention.

Outcome for Article 13: no_violation