NMa: informants' identities properly safeguarded

Individuals that come to the Netherlands Competition Authority (NMa) with relevant information about violations of the Dutch Competition Act are able to count on being treated with the greatest care. The NMa is communicating this message to the general public, in part because of a recent ruling by the Supreme Court of the Netherlands in the case surrounding Ad Bos, the whistleblower that exposed the large-scale cartel fraud in the Dutch construction industry.

Pieter Kalbfleisch, chairman of the Board of the NMa, explains: 'Thankfully, there are still a lot of informants that approach the NMa to pass on information. We sincerely hope that others, perhaps because of this ruling, will not be starting to have second thoughts about contacting the NMa. That would be really unfortunate, and I would therefore like to emphasize that any possible fears are really groundless. The NMa has had a Policy rule on Informants since 2005. It clearly explains how the NMa treats informants, and what safeguards the NMa can provide against (involuntary) disclosure of the informants' identities'. Furthermore, two of the NMa's staff members are specialized in enforcing these policy rules and in interviewing (anonymous) informants. Mr. Kalbfleisch continues: 'I actually encourage and call on informants to inform the NMa of any misconduct. Obviously, our own interests play a role in this as well – it is this kind of information that can be extremely valuable to the NMa for dealing with violators of the Dutch Competition Act, such as cartelists.'

What options are there to remain anonymous?

Individuals that have useful information can choose from different options offered by the NMa on how to approach the authority. It is, for example, possible to contact one of the aforementioned staff members. They will pass on confidential versions of the collected information to the rest of the NMa. Another option would be that an informant is represented by a professional entitled to legal privilege, such as an attorney, who will then pass on all information to the NMa. For the duration of the NMa's investigation, the authority guarantees complete anonymity in the report, sanctioning and objection phases. This is accomplished, for example, by only including in the case dossier information that cannot be traced back to the informant.

There are two situations in which the NMa cannot guarantee the informant's anonymity. If it turned out that an informant was involved in a criminal offense, the NMa would then be required to report it. Furthermore, the courts may demand disclosure of an informant's identity during appeal proceedings. In the NMa's history so far, however, this has never happened.

What to do if you are involved in a violation yourself?

If you are liable for punishment yourself because of a violation of the Dutch Competition Act, yet you wish to inform the NMa about this anyway, you could apply for leniency. The NMa leniency program potentially offers fine reductions or even fine remissions in exchange for full cooperation and notification of your participation in a cartel. Leniency requests cannot be filed anonymously however.