EHRM, 01-04-2025, nr. 2799/16, nr. 2800/16, nr. 3124/16, nr. 3205/16

The confidentiality of communications is an essential element of the right to respect for private life and correspondence, as enshrined in Article 8. Users of telecommunications and internet services must have a guarantee that their own privacy and freedom of expression will be respected, although such a guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008, and Delfi AS v. Estonia [GC], no. 64569/09, § 149, ECHR 2015).

Any interference with Article 8 rights can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that paragraph refers and is necessary in a democratic society in order to achieve any such aim. The wording ‘in accordance with the law’ requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015). An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008).

When intercept data, obtained in a Convention-compliant manner, is transmitted from one law-enforcement agency to another without the knowledge of the data subject, the Grand Chamber, like the Chamber, considers that the standards developed in the context of secret-surveillance measures are relevant to its assessment. At the same time, owing to the difference in the extent of the interference between the original interception and the subsequent transmission of data, these standards cannot be directly transposed to cases such as the present one. The interception of communications is a very intrusive measure because, by its very nature, it is likely to result in the collection and examination of a large volume of a targeted person's communications. By contrast, data transmissions such as that in the present case involve, as a rule, only a limited amount of selected intercept material that has been lawfully obtained and are in that sense usually less intrusive.

The Court also notes that the transmitted data are usually the product of legally regulated interception procedures to which all relevant safeguards against arbitrariness and abuse apply. This includes procedural safeguards, such as those relating to authorisation procedures, and substantive safeguards, such as those regarding the grounds on which the interception can be ordered. Therefore, the safeguards applicable to the process of obtaining intercept data that may subsequently be transmitted to another law-enforcement authority also limit, at least to a certain extent, the risk of arbitrariness and abuse related to the transmission (see, mutatis mutandis, Centrum för rättvisa v. Sweden [GC], no. 35252/08, § 324, 25 May 2021).

Accordingly, the Court considers that while the standards developed in the context of secret-surveillance measures provide a useful framework for its assessment, they will have to be adapted to reflect the specific features of transmissions of intercept data from one law-enforcement agency to another. In this respect, the Court will also have regard to the standards developed in the context of data protection.

The Court reiterates that it is essential, in the context of data protection — as in the context of telephone tapping, secret surveillance and covert intelligence-gathering — to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient safeguards against arbitrariness and abuse (compare S. and Marper, cited above, § 99, with further references).

While being, as a rule, less intrusive than the original interception of communications, the transmission of intercept data for use in pursuit of a new purpose is a significant interference with the rights of the data subject, which must be justified in accordance with the requirements of Article 8 § 2. The Court has therefore held that the transmission of data for use beyond the original criminal context for their collection must have a basis in law and be foreseeable to the data subject (see Versini-Campinchi and Crasnianski, cited above, § 55; Terrazzoni, cited above, §§ 49-50; and Starkevič v. Lithuania, no. 7512/18, § 87, 29 March 2022). The importance of sufficiently circumscribing in law the scope of possible new uses of the data has also been noted by the Court as a safeguard against arbitrariness and abuse (see, for example, Weber and Saravia, cited above, §§ 125-26; Karabeyoğlu, cited above, §§ 117-18; Ekimdzhiev and Others, cited above, § 327; and Adomaitis, cited above, § 87). The Court has, furthermore, required that such transmission and use be convincingly justified in the circumstances of the case by reference, inter alia, to the importance of the aim pursued by the transmission (see Drakšas v. Lithuania, no. 36662/04, § 61, 31 July 2012; Adomaitis, cited above, § 87; and Starkevič, cited above, § 91). Finally, in its assessment of the necessity in a democratic society of data transmissions in pursuit of purposes beyond the original criminal context for their collection, the Court took into account that the transmission was subject to effective judicial review (see Versini-Campinchi and Crasnianski, cited above, § 74; Terrazzoni, cited above, §§ 60-61; and Adomaitis, cited above, § 87).

The Court also notes that the lawfulness of the interference resulting from the transmission of intercept data is closely connected to the question whether the interference was ‘necessary in a democratic society’. It may therefore be appropriate for the Court to address the two requirements jointly. In this context, ‘the quality of law’ implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that the transmission of intercept data takes place only when ‘necessary in a democratic society’, in particular by providing for adequate and effective safeguards against arbitrariness and abuse (compare Roman Zakharov, cited above, § 236). Regardless of whether it is addressed separately or jointly with the lawfulness requirement, this assessment depends on all the circumstances of the case, such as the nature and scope of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (compare Roman Zakharov, cited above, 232, and Liblik and Others, cited above, §§ 130-31).

It follows from the Court's well-established case-law that the law must provide for ‘precautions to be taken when communicating [intercept] data to other parties’ (see Roman Zakharov, cited above, § 231). They should ensure, inter alia, that the transmissions do not become an instrument for circumventing the strict safeguards applicable to the interception of communications. To date the Court has not yet provided guidance regarding such precautions, except in the very specific context of the international transmission of data collected through the bulk interception of communications (see Big Brother Watch and Others, cited above, §§ 362 and 392). The Court considers that, outside that context, the precautions to be taken when communicating intercept material to another law-enforcement authority should include the following minimum requirements, which should be set out in law in order to avoid arbitrariness and abuse.

First, the Court considers that the transmission of intercept material beyond the original criminal context for its collection should be limited to such material as has been collected in a Convention-compliant manner. Secondly, the circumstances in which such a transmission may take place must be set out clearly in domestic law. In this respect, the Court notes that where a power vested in the executive is exercised in secret, the risks of arbitrariness and abuse are evident. It is therefore essential to have sufficiently clear rules on when the transmission of intercept data can take place without the knowledge of those concerned. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures. Moreover, since the implementation in practice of such measures is not open to scrutiny by the individuals concerned or the public at large, the law must indicate the scope of any discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (compare, in the context of secret surveillance, Roman Zakharov, cited above, §§ 229-30). Thirdly, the law must provide for safeguards concerning the examination, storage, use, onward transmission and destruction of the data transmitted. Finally, the transmission and use of intercept data for a purpose beyond the original criminal context for their collection must be subject to effective review by a judicial or otherwise independent body (see Versini-Campinchi and Crasnianski, cited above, § 74; Terrazzoni, cited above, §§ 60-61; and Adomaitis, cited above, § 87).

The Court must also assess whether the interference arising out of the data transmission can, in the circumstances of the case, be considered ‘necessary in a democratic society’ in pursuit of a legitimate aim (see paragraph 152 above). In this assessment, the Court will take into account the nature of the data, the importance of the aim pursued by their transmission, and the resulting consequences for the applicant, as well as the quality of the authorisation procedures and the effectiveness of available remedies.

The Court reiterates that the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8 depends on a number of factors, including the nature of the Convention right in issue, its importance for the person concerned, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights. Where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will be restricted (see S. and Marper, cited above, § 102, with further references). A heightened level of protection is also required for sensitive personal data (see Catt v. the United Kingdom, no. 43514/15, § 112, 24 January 2019, and Glukhin v. Russia, no. 11519/20, § 76, 4 July 2023).

The Court is aware of the different approaches to the margin of appreciation applicable to measures which interfere with the Article 8 rights of legal persons. In some cases the Court has held that the fact that the measure was aimed at legal persons meant that a wider margin of appreciation could be applied than would have been the case had it concerned an individual (see, in the context of searches and seizures conducted at business premises, Bernh Larsen Holding AS and Others, cited above, § 159; DELTA PEKÁRNY a.s. v. the Czech Republic, no. 97/11, § 82, 2 October 2014; Erduran and Em Export Dış Tic A.Ş. v. Turkey, nos. 25707/05 and 28614/06, § 99, 20 November 2018; and Naumenko and SIA Rix Shipping, cited above, § 51). On the other hand, in a number of cases the Court did not refer to a wider margin of appreciation in respect of legal entities and applied the same level of scrutiny and safeguards to them as to natural persons (see, in the context of searches and seizures, Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, 2 April 2015; Société Canal Plus and Others, cited above; Lindstrand Partners Advokatbyrå AB v. Sweden, no. 18700/09, 20 December 2016; and UAB Kesko Senukai Lithuania, cited above; see also, in the context of the interception of communications, Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008; Association for European Integration and Human Rights and Ekimdzhiev, cited above; Liblik and Others, cited above; Big Brother Watch and Others, cited above; and Ekimdzhiev and Others, cited above). It considers it useful to clarify its approach, before applying it to the present case.

The Court finds that the breadth of the margin of appreciation should depend in each case on the content and nature of the data in question rather than on the applicants' physical or legal nature or their status. It will be wider in respect of the collection and processing of business-related data of both companies and individuals (see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, § 31 in fine, Series A no. 251-B), than in the case of the collection and processing of data concerning an individual's intimate sphere or a particularly important facet of an individual's existence or identity (see paragraph 162 above). The breadth of the margin of appreciation will also depend on the gravity of the interference (see, for example, Big Brother Watch and Others, cited above, § 339; and Naumenko and SIA Rix Shipping, cited above, § 51) and the object pursued by it (see, for example, Weber and Saravia, cited above, § 106, and Big Brother Watch and Others, cited above, § 338).

As regards the applicable safeguards against arbitrariness and abuse, while being mindful of differences that might arise between cases concerning natural and legal persons as a result of the application of data protection laws to the former and the function of the margin of appreciation, the Court finds that the minimum safeguards under Article 8 should in principle be the same.

The Court would begin by noting that the applicant companies have not complained about the lack of legal safeguards concerning the examination, storage, use, onward transmission and destruction of the data after their transmission. Furthermore, they have not complained about the telephone tapping as such. It is not in dispute between the parties that the data were lawfully obtained in the framework of criminal proceedings in which the interception orders had been authorised by the investigating judge. The Court will accordingly proceed on the basis that the data were lawfully obtained in a manner compatible with Article 8 of the Convention.

The Court further observes that in the present case the applicant companies' complaints were based on specific and undisputed instances of transmissions of data obtained through telephone tapping. Therefore, the Court's assessment of the applicable safeguards, although it necessarily entails some degree of abstraction, cannot be of the same level of generality as in cases concerning general complaints about a law permitting the secret surveillance of communications and in which the Court must, of necessity and by way of exception to its normal approach, carry out an abstract assessment of such a law. In cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicants in the particular circumstances (see Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 48, 8 March 2011; Dragojević, cited above, § 86; and Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 126, 7 November 2017).

The Government argued that the data transmissions had served the legitimate aim of protecting the economic well-being of the country, which the applicant companies did not dispute. Having regard to its previous findings in competition-law cases (see, for example, Naumenko and SIA Rix Shipping, cited above, § 49, with further references), the Court sees no reason to take a different view.

The Court will first assess whether the authorisation procedures and available remedies afforded the applicant companies adequate and effective safeguards against arbitrariness and abuse (see paragraphs 158 and 161 above).

The Court is not convinced by the applicant companies' argument that the authorisation procedures were deficient because the transmission authorisations had been granted by a prosecutor who could not be deemed an independent body. An independent ex ante authorisation for transmissions of intercept material lawfully obtained in a Convention-compliant manner to another law-enforcement authority is not required by Article 8. Authorisation of such transmissions by a non-judicial authority may be compatible with the Convention. Where there is extensive post factum judicial or otherwise independent oversight, this may counterbalance the absence of an independent authorisation (see, in the context of secret surveillance, Szabó and Vissy v. Hungary, no. 37138/14, § 77, 12 January 2016).

The Court notes in this connection that it has previously found no violation of Article 8 in cases where transmissions of intercept data had been authorised by prosecutors (see Versini-Campinchi and Crasnianski, cited above, § 12; Drakšas, cited above, § 61; Adomaitis, cited above, § 10; and Starkevič, cited above, § 21; see also Terrazzoni, cited above, § 22, in which the transmission was authorised by the Minister of Justice (le garde des Sceaux); see also the comparative-law material summarised in paragraph 104 above).

Given that the intercept material in the present case had been collected on the basis of a judicial authorisation and in a Convention-compliant manner, it was not incompatible with the Convention for the authorisation to transmit that material to another law-enforcement authority to be granted by the prosecutor. What is more important is whether the domestic system of review of data transmissions as a whole provided the applicant companies with adequate safeguards against arbitrariness and abuse and was capable of restricting the contested transmissions to what was ‘necessary in a democratic society’.

As regards the applicant companies' complaint about the absence of prior notice for the data transmission, the Court has previously held, in the context of telephone tapping, that when the secret-surveillance measures are first ordered and while they are being carried out, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual's knowledge. In that sense, Article 8 of the Convention does not guarantee the right to a prior notification about secret surveillance (see Klass and Others v. Germany, 6 September 1978, §§ 55 and 68, Series A no. 28, and Roman Zakharov, cited above, § 286). The same applies to the transmission of intercept material when the secrecy of the transmitted data is of importance for the original criminal proceedings or for the new proceedings for the purposes of which the data are being transmitted. Article 8 cannot be construed as guaranteeing prior notification about the transmission of intercept material (see, mutatis mutandis, Othymia Investments B.V. v. the Netherlands (dec.), no. 75292/10, § 44, 16 June 2015, in the context of the transmission of tax-related information to another State) or, by implication, the possibility to participate in any review prior to the data being transmitted.

The Court observes that the ‘Cleveland’ criminal investigation was still ongoing at the time of the contested data transmissions and the telephone tapping was apparently still being kept secret from the persons concerned. Notifications could thus have undermined the criminal investigation, the success of covert investigative measures and an investigation of the Janssen companies by the NMA. Therefore, the Court accepts that, in the circumstances of the present case, the transmissions of the data had to take place without the Janssen companies' prior knowledge. The fact that the Janssen companies were unable to take part in the authorisation proceedings or apply for a preventive remedy in another form did not therefore, in the circumstances of the case, entail a breach of Article 8.

As regards the ‘Toto’ investigation, the suspects learned about the criminal proceedings against them and presumably about the use of telephone tapping on 19 December 2008 (see paragraph 20 above). Any prior notifications about transmissions that took place after that date would no longer have undermined the criminal investigation or the success of the covert investigative measures. Moreover, on 29 June 2010 the Ships Waste Oil Collector B.V. company and the I. company learned about the competition proceedings and the previous transmissions of data (see paragraph 18 above). It is unclear why the subsequent data transmissions were carried out in secret and in what way prior notice about them would have hampered the competition proceedings. The Court finds it regrettable that Ships Waste Oil Collector B.V., Burando Holding B.V. and Port Invest B.V. were not given prior notice about the transmissions that took place after 29 June 2010 and were therefore unable to have their arguments against those transmissions heard in the framework of an ex ante review. However, the Court will ascertain below whether they were given a sufficient opportunity to have their arguments heard during the ex post facto review.

The Court notes the absence of any reasoning in the transmission authorisations, which did not contain any verifiable assessment of whether the transmissions were ‘necessary in a democratic society’, including whether they were proportionate to the legitimate aim pursued. The Court considers that written reasoning, even if a succinct one, is desirable to ensure that the authorising authority has properly assessed the necessity and proportionality of the interference with Article 8 rights (see, in the context of interception of communications, Ekimdzhiev and Others, cited above, § 313) and to facilitate an effective review of the transmission for the purposes of Article 8 § 2 of the Convention (see, also in the context of interception of communications, Potoczká and Adamčo v. Slovakia, no. 7286/16, § 76, 12 January 2023). Nevertheless, as the transmitted material was the product of lawful telephone tapping authorised by a court, the safeguards applicable to the process of obtaining the intercept data limited the risk of arbitrariness and abuse related to the transmissions of those data (see paragraph 154 above). In such circumstances the lack of reasoning may be compensated for by ex post facto review.

It is important to note that the applicant companies eventually learned about the data transmissions and were able to use judicial ex post facto remedies. It follows that, in the specific circumstances of the case, the assessment of the effectiveness of the remedies available under domestic law must be carried out without taking into account the initially secret nature of the transmissions (compare Gernelle and S.A. Société d'Exploitation de l'Hebdomadaire Le Point v. France (dec.), no. 18536/18, § 49, 9 April 2024).

The applicant companies challenged the lawfulness and Convention-compliance of the data transmissions in the administrative proceedings concerning the NMA's decisions to impose fines on them. The scope of review of the domestic courts in those proceedings was not limited to the admissibility of the intercept material in evidence. The courts examined whether the transmissions had been lawful — which included the necessity and proportionality test as part of the lawfulness assessment — and also whether they complied with Article 8 of the Convention (see paragraphs 31 and 57 above). The remedy used by the applicant companies was therefore able to deal with the substance of the Convention complaint that the interference was not ‘in accordance with the law’ or ‘necessary in a democratic society’ (compare Capriotti v. Italy (dec.), no. 28819/12, §§ 56-57, 23 February 2016, and Gernelle and S.A. Société d'Exploitation de l'Hebdomadaire Le Point, cited above, §§ 44 and 51; contrast Zubkov and Others, cited above, §§ 88 and 95–98, with further references; Potoczká and Adamčo, cited above, § 61; and Plechlo v. Slovakia, no. 18593/19, § 46, 26 October 2023; see also, in the context of Article 13, Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000-V, and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001-IX).

As follows from the Dutch Supreme Court's case-law in civil proceedings, the lawfulness of the ‘factual act’ of transmission did not depend on the reasons given by the prosecutor at the time. The assessment of the lawfulness of a ‘factual act’ could be carried out by the reviewing court retrospectively and independently (see paragraphs 71–72 above). In the present case, the Supreme Administrative Court for Trade and Industry applied the same approach, finding that it was not necessary to have the prosecutor's reasoning and carrying out its own de novo assessment of whether the transmissions had been lawful and compatible with the Convention (see paragraph 31 and 57 above). The Court concludes that in the circumstances of the present case, the absence of written reasoned transmission authorisations was compensated for by an ex post facto review in the judicial proceedings challenging the administrative fines in which the applicant companies were given an opportunity to effectively contest the transmission of data.

Furthermore, the Court has no reason to doubt that those proceedings were capable of affording the applicant companies appropriate redress. It reiterates that it has generally considered the appropriateness of the redress to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010). In previous cases concerning the transmission of intercept material, the Court found that applicants who had been able to contest the admissibility of the transmitted material as evidence in disciplinary proceedings had obtained an effective judicial review. It thereby implicitly accepted that the exclusion of evidence resulting from an inadmissibility challenge could afford adequate redress (see Versini- -Campinchi and Crasnianski, cited above, §§ 71-74; Terrazzoni, cited above, §§ 60-61; and Adomaitis, cited above, §§ 87-88). In the Court's view, redress in the form of the destruction of transmitted data or monetary compensation is not necessarily required for a remedy concerning the transmission of intercept data; restrictions on their use, such as a declaration of inadmissibility as evidence, may afford sufficient redress for such transmissions.

The Court further observes that it was also open to the applicant companies to challenge the transmissions in civil proceedings under Article 6:162 of the Civil Code (see paragraph 87 above), either in substantive proceedings (bodemprocedure) or in proceedings under Article 254 of the Code of Civil Procedure before the provisional-measures judge (see paragraph 88 above). It is clear from the WJSG Instructions that the civil courts were designated and entrusted with the competence to rule on the lawfulness of data transmissions in tort proceedings (see paragraph 70 above). This also follows from the legislative history of the WJSG (see paragraph 65 above). The civil courts could have prevented the data from being used by the NMA, if the transmission had been found to be unlawful. The Court is not convinced by the applicant companies' arguments that the civil proceedings could not have provided a sufficiently thorough review and is therefore not satisfied by their explanation of why they did not use this remedy. In the provisional-measures proceedings initiated by the Janssen companies — which they did not however pursue on appeal — the judge assessed both the domestic lawfulness of the transmissions and their compliance with Article 8 of the Convention, in particular by verifying the existence of a compelling general interest and by balancing it against the applicant companies' rights (see paragraph 46 above). The Court therefore has no reason to doubt that the civil remedy, if it had been pursued by the applicant companies, would have been capable of dealing with the substance of their Convention complaint by examining whether the interference had been lawful and proportionate to a compelling general interest, and of providing redress in the form of damages or injunctions. For the reasons explained in paragraph 192 above, the lack of written reasoning in the transmission authorisations could not undermine the effectiveness of the civil remedy in the circumstances of the case (see the Supreme Court's case-law in civil proceedings in paragraphs 71–72 above). In that connection, the Court notes that the Convention forms part of domestic law and that it takes precedence over domestic statutory rules in the event of a conflict (see paragraph 60 above).

In view of the above, while the transmission authorisations did not contain any reasons, the Court considers that this was compensated for by a de novo assessment of the transmissions' lawfulness and their ‘necessity in a democratic society’ by the courts which carried out the ex post facto review (see paragraph 192 above). The applicant companies have not convincingly shown that that review was ineffective. The domestic system of review of data transmissions as a whole therefore afforded the applicant companies adequate safeguards against arbitrariness and abuse, providing for an opportunity to effectively contest the transmissions of intercept material and safeguarding their rights.

Lastly, as regards the existence of relevant and sufficient reasons justifying the data transmissions in the present case, the Court reiterates that, in accordance with the principle of subsidiarity, the national authorities have the primary responsibility to secure the rights and freedoms defined in the Convention, and that in so doing they enjoy a margin of appreciation, subject to the Court's supervisory jurisdiction (see, for example, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, § 541, 9 April 2024). In assessing whether the national authorities remained within their margin of appreciation in this respect, the Court will take into account the nature of the data, the importance of the aim pursued by their transmission and the resulting consequences for the applicants (see paragraphs 161 and 164 above).

The Court agrees with the domestic courts that there is strong public interest involved in the effective enforcement of competition law (see SA- -Capital Oy, cited above, § 78). Given the potential negative impact of cartels on market competition and the difficulties involved in detecting and investigating them, it is important that competition authorities and other law-enforcement agencies be able to cooperate in their efforts to uncover and punish such anti-competitive practices. The enforcement of competition law is crucial to safeguarding the performance capacity and fairness of market economies, and, consequently, the economic well-being of the country.

The Court notes that the violations of competition law revealed by the intercept material were undoubtedly serious and, in view of the applicant companies' high market share and the systematic and repeated nature of those violations, could lead to significant damage (see paragraphs 28 and 52 above). The Court has previously classified similar administrative competition proceedings as ‘criminal’ within the autonomous meaning of Article 6 of the Convention, in view of the nature of the offence and the nature and severity of the sanction (see, for example, A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, §§ 39-45, 27 September 2011).

Furthermore, as regards the intrusiveness of the interference, while the sanctions imposed on the applicants were serious, there is no reason to doubt, and it was not contested by the applicant companies, that the data transmissions were limited to material relevant for the competition proceedings. Furthermore, the transmitted material exclusively concerned the business activities of legal persons; it did not contain any data which could be considered sensitive.

In view of the above, and noting that domestic authorities carefully assessed the lawfulness of the transmission under the WJSG and conducted an adequate balancing exercise under Article 8 of the Convention between the interests of the applicant companies and the authorities' interests to protect the economic well-being of the country (see paragraphs 31, 46 and 57 above), the Court is satisfied that the domestic authorities advanced relevant and sufficient reasons to justify the necessity and proportionality of the data transmission for the purposes of enforcement of competition law. The respondent State thus remained within the margin of appreciation afforded to it.

There has accordingly been no violation of Article 8 of the Convention.

As noted above, the complaints in the present case concern the transmission of certain data; they do not concern the interception of those data. The applicant company has raised Convention issues on the transmission of data in the context of competition law proceedings (see paragraphs 12–17 above). It is not in dispute between the parties that those data were lawfully obtained in the context of the criminal proceedings in which the interception orders were authorised by the investigating judge (see, by contrast, Versini-Campinchi and Crasnianski v. France, no. 49176/11, §§ 35 and 40, 16 June 2016, and Adomaitis v. Lithuania, no. 14833/18,

§§ 79–80, 18 January 2022). Nor are there any indications that the applicant company would not have been able to effectively challenge the telephone tapping if it had wished to do so (compare Bosak and Others v. Croatia, no. 40429/14, §§ 62–65, 6 June 2019). The Court will, accordingly, proceed on the basis that the data were obtained through methods compatible with Article 8 of the Convention.

It remains, however, a fact that the subsequent transmission of the data took place without the applicant company' knowledge. It is for that reason that the Court considers the standards it has developed in the context of secret surveillance measures also relevant to the present case. Those standards may be summarised as follows.

The Court has held that the law's ‘foreseeability’ requirement in the context of secret surveillance measures cannot mean that an individual should be able to foresee when the authorities are likely to intercept his or her communications so that he or she can adapt his or her conduct accordingly. However, where a power of the executive is exercised in secret the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on secret surveillance measures, that are sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Dragojević, cited above, § 81; Roman Zakharov v. Russia [GC], no. 47143/06, § 229, ECHR 2015; and Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, § 333, 25 May 2021).

Further, the Court has stressed the need for safeguards to avoid abuse of the power of secret surveillance; it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power (see Bykov v. Russia [GC], no. 4378/02, § 78, 10 March 2009, and Dragojević, cited above, § 82). The Court developed minimum safeguards that must be set out in domestic law, including the precautions to be taken when communicating the data obtained through interception of communications to other parties (see Weber and Saravia (dec.), cited above, § 95). On this latter safeguard, the Court has not yet provided specific guidance except in the special context of sharing intelligence material by a Contracting State to a foreign state or international organisations. In that context the Court adapted the minimum safeguards to the specific features of a bulk interception regime (see Big Brother Watch and Others [GC], cited above, § 347) and considered that the transmission should be limited to such material as had been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself. It held, inter alia, that the circumstances in which such a transfer may take place must be set out clearly in domestic law and that the transfer of material obtained through bulk interception to foreign intelligence partners should also be subject to independent control (see Big Brother Watch and Others [GC], cited above, § 362). What is required by way of safeguards will thus depend on the context and, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, 25 September 2001).

It is for the Court, when reviewing whether measures of covert surveillance are ‘in accordance with the law’, to determine whether the applicable domestic law, including the way in which it was interpreted by the domestic courts, indicated with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities. Such a review necessarily entails some degree of abstraction. Nevertheless, in cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances. When reviewing whether the impugned interference was ‘necessary in a democratic society’, the Court must determine whether the domestic system of covert surveillance, as applied by the domestic authorities, afforded adequate safeguards against abuse (see Dragojević, cited above, §§ 86 and 89; and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May 2010).

The Court has acknowledged that the national authorities enjoy a certain margin of appreciation in assessing the existence and extent of such necessity. When a measure targets legal persons a wider margin of appreciation could be applied than would have been the case had it concerned an individual (see Bernh Larsen Holding AS and Others, cited above, §§ 158-59, and Naumenko and SIA Rix Shipping, cited above, § 51).

The applicant company argued that the transmission of data which had no relevance to the criminal investigation had been insufficiently foreseeable (see paragraph 35 above). The Government contested that argument (see paragraphs 37–39 above).

The Court notes that the interference had a legal basis under Dutch law, namely section 39f of the WJSG (see paragraph 18 above). As to the requirement of the law's ‘foreseeability’, the Court has accepted on different occasions that investigative methods may have to be used covertly (see, for example and amongst many other authorities, Klass and Others v. Germany, 6 September 1978, § 48, Series A no. 28). The criminal investigation against the I. company was still underway at the time of the first data transmissions, and at the time of the later transmissions the applicant company was under investigation by the NMA for price-fixing. Notification could thus have compromised that criminal investigation, its deployment of covert investigative measures, and an investigation of the applicant company by the NMA. Therefore, the Court accepts that, in the circumstances of the present case, the transmission of the data had to take place without the applicant company's prior knowledge. Similar to what the Court has held with regard to secret surveillance measures such as interception of communications (see paragraph 45 above), the requirement of foreseeability in the context at issue cannot be taken to mean that the authorities were obliged to notify the applicant company that they were going to transmit criminal data to the NMA.

The Court notes that there is also a difference between the situation of covert investigative measures in the case-law mentioned (see paragraphs 45–47 above) and the interference posed by the transmission of data in the present case. The transmission of data was derivative of an interference which already provided for safeguards against arbitrariness and which the Court assumes was in accordance with Article 8 (see paragraph 43 above). For this reason already, the power to transmit the data obtained by that interference was not ‘unfettered’. The Court considers that this difference is relevant for its assessment in the present case. Nevertheless, it will review, like in covert surveillance cases, whether the applicable domestic law, including the way in which it was interpreted by the domestic courts, gave an adequate indication to the applicant company as to the scope and manner of exercise of the authorities' discretion to transmit the data.

The Court notes, firstly, that section 39f of the WJSG — enacted pursuant to a transitional provision of the Personal Data Protection Act which required a lex specialis for the transmission of criminal data — sets out in law the limits of and the conditions for the transmission of data by the Public Prosecution Service. It further notes that the Transmission (Designation) Order provides clear instructions on the exercise of the power to transmit (see paragraph 18 above).

Further, in addressing the arguments raised by applicant company in support of its complaint that the impugned data transmission had not been sufficiently foreseeable (see paragraph 35 above), the Court notes the following.

On the basis of section 39f of the WJSG (see paragraph 18 above), the Court considers it sufficiently foreseeable that the NMA was authorised to receive criminal data from the Public Prosecution Service. Although the NMA was not mentioned as such, it is clear it is charged with the enforcement of the Competition Act (see paragraph 29 above). Authorities charged with enforcement of legislation are listed in section 39f of the WJSG as authorised to receive criminal data. Further, contrary to what the applicant company seems to suggest, the authorisation to receive those data is not made in some way dependent in the provision in question on the investigative powers of the receiving entity. In this connection the Court also notes that it follows from the Supreme Administrative Court for Trade and Industry's considerations that the WJSG precisely provides for the possibility, under strict conditions, that data obtained through coercive measures in criminal proceedings may be transmitted to defined other public authorities that do not have themselves the competence to use such coercive measures (see paragraph 17 above).

As regards the question whether it was sufficiently foreseeable on the basis of the applicable law that data not used for the criminal prosecution could also be transmitted, the Court notes the following. Criminal data were defined in section 1 of the WJSG in relation to the context in which they were obtained, as processed into the criminal file. Their definition does not relate to (possible) relevance to a prosecution, let alone to their final use by the prosecution in that case (see paragraph 18 above). Furthermore, as noted by the Regional Court and the Supreme Administrative Court for Trade and Industry, it follows from the Explanatory Memorandum to the bill (see paragraph 20 above) that the legislature intended the term ‘criminal file’ in this provision to be broad. This interpretation has been confirmed in the case-law of the Supreme Court (see paragraph 22 above).

Next, the Court observes that, while the text of section 39f of the WJSG (see paragraph 18 above) contains strict conditions for the transmission of criminal data by the Board of Procurators, it does not specify in which form the required balancing test should be carried out. However, it cannot be ignored that it clearly follows from the Explanatory Memorandum to the bill, as well as from the Transmission (Designation) Order, that the decision to transmit criminal data is qualified under the domestic legal framework as a factual act, not as a decision under the AWB (see paragraphs 19, 21–22, 27 and 31 above). In this regard, the present case is already to be distinguished from that in Dragojević (cited above), where formal requirements were explicitly provided for in the relevant domestic law (compare and contrast also Liblik and Others v. Estonia, nos. 173/15 and 5 others, § 140, 28 May 2019). That being so, the Court sees no reason to question the Supreme Administrative Court for Trade and Industry's conclusion that the decision of the public prosecutor to transmit criminal data is not one in the sense of the AWB and that it should carry out its own balancing test when assessing whether the evidence obtained in the context of a criminal investigation was lawfully provided to the NMA that used this material in proceedings for the imposition of an administrative fine and, in that context, whether the transmission of the data concerned was in compliance with Article 8 of the Convention (see paragraph 17 above). This approach also follows from the Supreme Court's case-law (see paragraphs 21 and 22 above).

Given the foregoing, the Court finds that the applicable law gave the applicant company an adequate indication as to the circumstances in which and the conditions on which the Public Prosecution Service was empowered to resort to the impugned data transmission. The exploratory interactions between officials of the VROM-IOD and the NMA were sufficiently foreseeable as part thereof. Within the relevant domestic legal framework described above, the two authorised public authorities, who had separate tasks and expertise, would need to coordinate in order to identify the data relevant for the required compelling general interest. There is no indication that anyone other than the VROM-IOD was in charge of the selection of data that the NMA was able to access or that it accessed more information than necessary for the authorised purpose.

The Court therefore accepts that the interference was ‘in accordance with the law’. The Court finds it appropriate to examine the existence of adequate safeguards to avoid abuse as part of the question of whether the interference was ‘necessary in a democratic society’ (compare Kennedy v. United Kingdom, cited above, § 153, and Naumenko and SIA Rix Shipping, cited above, §§ 52–62).

The Government argued that the data transmission had served the legitimate aim of protecting the economic well-being of the country, which was initially acknowledged by the applicant company and later contested.

Having regard to its previous findings in competition-law cases (see, for example, Naumenko and SIA Rix Shipping, cited above, § 49, with further references), the Court sees no reason to take a different view.

The applicant company argued that the applicable domestic law, which does not provide for a judicial ex ante review of the data transmission, lacked sufficient guarantees against abuse and that the interference had been disproportionate (see paragraph 36 above). The Government contested that argument (see paragraph 39 above).

The Court reiterates that what is required by way of safeguards will depend on the context and on the nature and extent of the interference in question.

As to the question whether there were adequate safeguards to avoid abuse in the case at hand, it has already been noted that section 39f of the WJSG sets out in law the limits of and the conditions for the transmission of criminal data by the Public Prosecution Service (see paragraph 56 above). It further follows from the legislative history of the WJSG that the existence of a ‘compelling general interest’ is explicitly linked to the legitimate aims listed in Article 8 § 2 of the Convention (see paragraph 19 above). In addition, the Transmission (Designation) Order provides clear guidance to the Public Prosecution Service for the exercise of the power to transmit, emphasising that 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 and if it was necessary for a purpose defined in section 39f of the WJSG (see paragraphs 23–27 above).

Also, there is an extensive ex post facto judicial oversight in place. In the administrative proceedings concerning the NMA's decision to impose a fine the applicant company could, and did, challenge the lawfulness and Convention compliance of the data transmission. As far as the transmitted data that were used for the NMA's decision are concerned, the applicant company's complaints could thus be redressed.

The fact that the object of these proceedings was the administrative decision by the NMA and not the transmission in itself cannot lead to the conclusion that insufficient safeguards were available, because the applicant company, in addition to these proceedings, had access to proceedings before the civil courts. It was clear from the legislative history of the WSJG and the Transmission (Designation) Order that the civil courts were competent to rule on the lawfulness of the transmission in tort proceedings (see paragraphs 19 and 27 above). The civil courts could have prevented the data from being used by the NMA, if the transmission had been found to be unlawful. The applicant company submitted that in practice civil proceedings would not provide for a sufficiently thorough review, but it has not provided any substantiation or examples of this.

The present case is not comparable to that in Sanoma Uitgevers B.V., cited by the applicant company (see paragraph 36 above), which concerned the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification, and did not concern transmission of lawfully obtained data between law enforcement authorities.

Given the nature and extent of the interference in the present case, in combination with the safeguards that were in place under the domestic legal framework, including the precautions taken when communicating the data obtained through interception of communications to another public authority, the Court is satisfied that the system was adequately capable of avoiding abuse of power and finds that Article 8 did not require ex ante authorisation by a court in the context at issue.

Turning to the question of whether the interference was proportionate, the Court notes that the domestic courts carefully examined the facts, assessed the lawfulness of the transmission under the WSJG and conducted an adequate balancing exercise under Article 8 of the Convention between the interests of the applicant company and the authorities' interests to protect the economic well-being of the country (see paragraph 17 above). In that connection the Court also takes account of the fact that the applicant company has not put forward any arguments as to why the interference did not pursue a legitimate aim or as to why the balance struck by the domestic authorities was not fair in their particular case.

The foregoing leads the Court to the conclusion that the domestic authorities have put forward relevant and sufficient reasons to justify the necessity and proportionality of the data transmission for the purposes of enforcement of competition law.

As noted above, the complaints in the present case concern the transmission of certain data; they do not concern the interception of those data. The applicant companies have raised Convention issues on the transmission of data in the context of competition law proceedings (see paragraphs 12–17 above). It is not in dispute between the parties that those data were lawfully obtained in the context of the criminal proceedings in which the interception orders were authorised by the investigating judge (see, by contrast, Versini-Campinchi and Crasnianski v. France, no. 49176/11, §§ 35 and 40, 16 June 2016, and Adomaitis v. Lithuania, no. 14833/18, §§ 79–80, 18 January 2022). Nor are there any indications that the applicant companies would not have been able to effectively challenge the telephone tapping if they had wished to do so (compare Bosak and Others v. Croatia, no. 40429/14, §§ 62–65, 6 June 2019). The Court will, accordingly, proceed on the basis that the data were obtained through methods compatible with Article 8 of the Convention.

It remains, however, a fact that the subsequent transmission of the data took place without the applicant companies' knowledge. It is for that reason that the Court considers the standards it has developed in the context of secret surveillance measures also relevant to the present case. Those standards may be summarised as follows.

The Court has held that the law's ‘foreseeability’ requirement in the context of secret surveillance measures cannot mean that an individual should be able to foresee when the authorities are likely to intercept his or her communications so that he or she can adapt his or her conduct accordingly. However, where a power of the executive is exercised in secret the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on secret surveillance measures, that are sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Dragojević, cited above, § 81; Roman Zakharov v. Russia [GC], no. 47143/06, § 229, ECHR 2015; and Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, § 333, 25 May 2021).

Further, the Court has stressed the need for safeguards to avoid abuse of the power of secret surveillance; it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power (see Bykov v. Russia [GC], no. 4378/02, § 78, 10 March 2009, and Dragojević, cited above, § 82). The Court developed minimum safeguards that must be set out in domestic law, including the precautions to be taken when communicating the data obtained through interception of communications to other parties (see Weber and Saravia (dec.), cited above, § 95). On this latter safeguard, the Court has not yet provided specific guidance except in the special context of sharing intelligence material by a Contracting State to a foreign state or international organisations. In that context the Court adapted the minimum safeguards to the specific features of a bulk interception regime (see Big Brother Watch and Others [GC], cited above, § 347) and considered that the transmission should be limited to such material as had been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself. It held, inter alia, that the circumstances in which such a transfer may take place must be set out clearly in domestic law and that the transfer of material obtained through bulk interception to foreign intelligence partners should also be subject to independent control (see Big Brother Watch and Others [GC], cited above, § 362). What is required by way of safeguards will thus depend on the context and, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, 25 September 2001).

It is for the Court, when reviewing whether measures of covert surveillance are ‘in accordance with the law’, to determine whether the applicable domestic law, including the way in which it was interpreted by the domestic courts, indicated with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities. Such a review necessarily entails some degree of abstraction. Nevertheless, in cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances. When reviewing whether the impugned interference was ‘necessary in a democratic society’, the Court must determine whether the domestic system of covert surveillance, as applied by the domestic authorities, afforded adequate safeguards against abuse (see Dragojević, cited above, §§ 86 and 89, and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May 2010).

The Court has acknowledged that the national authorities enjoy a certain margin of appreciation in assessing the existence and extent of such necessity. When a measure targets legal persons a wider margin of appreciation could be applied than would have been the case had it concerned an individual (see Bernh Larsen Holding AS and Others, cited above, §§ 158-59, and Naumenko and SIA Rix Shipping, cited above, § 51).

The applicant companies argued that the transmission of data which had no relevance to the criminal investigation had been insufficiently foreseeable (see paragraph 39 above). The Government contested that argument (see paragraphs 41–43 above).

The Court notes that the interference had a legal basis under Dutch law, namely section 39f of the WJSG(see paragraph 18 above). As to the requirement of the law's ‘foreseeability’, the Court has accepted on different occasions that investigative methods may have to be used covertly (see, for example and amongst many other authorities, Klass and Others v. Germany, 6 September 1978, § 48, Series A no. 28). The criminal investigation against the I. company was still underway at the time of the first data transmissions, and at the time of the later transmissions the applicant companies were under investigation by the NMA for price-fixing. Notification could thus have compromised the criminal investigation, its deployment of covert investigative measures, and an investigation of the applicant companies by the NMA. Therefore, the Court accepts that, in the circumstances of the present case, the transmission of the data had to take place without the applicant companies' prior knowledge. Similar to what the Court has held with regard to secret surveillance measures such as interception of communications (see paragraph 50 above), the requirement of foreseeability in the context at issue cannot be taken to mean that the authorities were obliged to notify the applicant companies that they were going to transmit criminal data to the NMA.

The Court notes that there is also a difference between the situation of covert investigative measures in the case-law mentioned (see paragraphs 50–52 above) and the interference posed by the transmission of data in the present case. The transmission of data was derivative of an interference which already provided for safeguards against arbitrariness and which the Court assumes was in accordance with Article 8 (see paragraph 48 above). For this reason already, the power to transmit the data obtained by that interference was not ‘unfettered’. The Court considers that this difference is relevant for its assessment in the present case. Nevertheless, it will review, like in covert surveillance cases, whether the applicable domestic law, including the way in which it was interpreted by the domestic courts, gave an adequate indication to the applicant companies as to the scope and manner of exercise of the authorities' discretion to transmit the data.

The Court notes, firstly, that section 39f of the WJSG — enacted pursuant to a transitional provision of the Personal Data Protection Act which required a lex specialis for the transmission of criminal data — sets out in law the limits of and the conditions for the transmission of data by the Public Prosecution Service. It further notes that the Transmission (Designation) Order provides clear instructions on the exercise of the power to transmit (see paragraph 18 above).

Further, in addressing the arguments raised by applicant companies in support of their complaint that the impugned data transmission had not been sufficiently foreseeable (see paragraph 39 above), the Court notes the following.

On the basis of section 39f of the WJSG (see paragraph 18 above), the Court considers it sufficiently foreseeable that the NMA was authorised to receive criminal data from the Public Prosecution Service. Although the NMA was not mentioned as such, it is clear it is charged with the enforcement of the Competition Act (see paragraph 29 above). Authorities charged with enforcement of legislation are listed in section 39f of the WJSG as authorised to receive criminal data. Further, contrary to what the applicant companies seem to suggest, the authorisation to receive those data is not made in some way dependent in the provision in question on the investigative powers of the receiving entity. In this connection the Court also notes that it follows from the Supreme Administrative Court for Trade and Industry's considerations that the WJSG precisely provides for the possibility, under strict conditions, that data obtained through coercive measures in criminal proceedings may be transmitted to defined other public authorities that do not have themselves the competence to use such coercive measures (see paragraph 17 above).

As regards the question whether it was sufficiently foreseeable on the basis of the applicable law that data not used for the criminal prosecution could also be transmitted, the Court notes the following. Criminal data were defined in section 1 of the WJSG in relation to the context in which they were obtained, as processed into the criminal file. Their definition does not relate to (possible) relevance to a prosecution, let alone to their final use by the prosecution in that case (see paragraph 18 above). Furthermore, as noted by the Regional Court and the Supreme Administrative Court for Trade and Industry, it follows from the Explanatory Memorandum to the bill (see paragraph 19 above) that the legislature intended the term ‘criminal file’ in this provision to be broad. This interpretation has been confirmed in the case-law of the Supreme Court (see paragraph 22 above).

As to the applicant companies' argument that some of the data transmissions had taken place at a time when those data should already have been destroyed (see paragraph 39 in fine above), the Court reiterates that it is not its task to interpret the applicable domestic law or the domestic courts' case-law in this regard (see paragraph 52 above). It suffices for the Court to note that the provisions the applicant companies relied on — Article 126cc of the Code of Criminal Procedure (see paragraph 32 above) and Article 74 of the Criminal Code (see paragraph 34 above) — do not define what should be regarded as the end of the criminal case for the purpose of those provisions, that, in addition, it follows from Article 266 of the Code of Criminal Procedure that when the court hearing in a criminal case has started (see paragraph 33 above) the public prosecutor can no longer withdraw the summons, and that in the present case the Regional Court gave judgment on 5 July 2010 (see paragraph 11 above). In the light of the foregoing, it sees no reason to question the Supreme Administrative Court for Trade and Industry's conclusions that the criminal case did not end before the Regional Court's judgment of 5 July 2010 had become final and that the applicant companies' argument failed (see paragraph 17 above).

Next, the Court observes that, while the text of section 39f of the WJSG (see paragraph 18 above) contains strict conditions for the transmission of criminal data by the Board of Procurators, it does not specify in which form the required balancing test should be carried out. However, it cannot be ignored that it clearly follows from the Explanatory Memorandum to the bill, as well as from the Transmission (Designation) Order, that the decision to transmit criminal data is qualified under the domestic legal framework as a factual act, not as a decision under the AWB (see paragraphs 19, 21–22, 27 and 31 above). In this regard, the present case is already to be distinguished from that in Dragojević (cited above), where formal requirements were explicitly provided for in the relevant domestic law (compare and contrast also Liblik and Others v. Estonia, cited above, § 140). That being so, the Court sees no reason to question the Supreme Administrative Court of Trade and Industry's conclusion that decision of the public prosecutor to transmit criminal data is not one in the sense of the AWB and that it should carry out its own balancing test when assessing whether the evidence obtained in the context of a criminal investigation was lawfully provided to the NMA that used this material in proceedings for the imposition of an administrative fine and, in that context, whether the transmission of the data concerned was in compliance with Article 8 of the Convention (see paragraph 17 above). This approach also follows from the Supreme Court's case-law (see paragraphs 21 and 22 above).

Given the foregoing, the Court finds that the applicable law gave the applicant companies an adequate indication as to the circumstances in which and the conditions on which the Public Prosecution Service was empowered to resort to the impugned data transmission. The exploratory interactions between officials of the VROM-IOD and the NMA were sufficiently foreseeable as part thereof. Within the relevant domestic legal framework described above, the two authorised public authorities, who had separate tasks and expertise, would need to coordinate in order to identify the data relevant for the required compelling general interest. There is no indication that anyone other than the VROM-IOD was in charge of the selection of data that the NMA was able to access or that it accessed more information than necessary for the authorised purpose.

The Court therefore accepts that the interference was ‘in accordance with the law’. The Court finds it appropriate to examine the existence of adequate safeguards to avoid abuse as part of the question of whether the interference was ‘necessary in a democratic society’ (compare Kennedy, cited above, § 153, and Naumenko and SIA Rix Shipping, cited above, §§ 52–62).

The Government argued that the data transmission had served the legitimate aim of protecting the economic well-being of the country, which was not disputed by the applicant companies.

Having regard to its previous findings in competition-law cases (see, for example, Naumenko and SIA Rix Shipping, cited above, § 49, with further references), the Court sees no reason to take a different view.

The applicant companies argued that the applicable domestic law, which does not provide for a judicial ex ante review of the data transmission, lacked sufficient guarantees against abuse and that the interference had been disproportionate (see paragraph 40 above). The Government contested that argument (see paragraph 43 above).

The Court reiterates that what is required by way of safeguards will depend on the context and on the nature and extent of the interference in question.

As to the question whether there were adequate safeguards to avoid abuse in the case at hand, it has already been noted that section 39f of the WJSG sets out in law the limits of and the conditions for the transmission of criminal data by the Public Prosecution Service (see paragraph 62 above). It further follows from the legislative history of the WJSG that the existence of a ‘compelling general interest’ is explicitly linked to the legitimate aims listed in Article 8 § 2 of the Convention (see paragraph 19 above). In addition, the Transmission (Designation) Order provides clear guidance to the Public Prosecution Service for the exercise of the power to transmit, emphasising that 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 and if it was necessary for a purposed defined in section 39f of the WJSG (see paragraphs 23–27 above).

Also, there is an extensive ex post facto judicial oversight in place. In the administrative proceedings concerning the NMA's decision to impose a fine the applicant companies could, and did, challenge the lawfulness and Convention compliance of the data transmission. As far as the transmitted data that were used for the NMA's decision are concerned, the applicant companies' complaints could thus be redressed.

The fact that the object of these proceedings was the administrative decision by the NMA and not the transmission in itself cannot lead to the conclusion that insufficient safeguards were available, because the applicant companies, in addition to these proceedings, had access to proceedings before the civil courts. It was clear from the legislative history of the WSJG and the Transmission (Designation) Order that the civil courts were competent to rule on the lawfulness of the transmission in tort proceedings (see paragraphs 19 and 27 above). The civil courts could have prevented the data from being used by the NMA, if the transmission had been found to be unlawful. For reasons unknown to the Court, the applicant companies did not avail themselves of this remedy.

The present case is not comparable to that in Sanoma Uitgevers B.V., cited by the applicant companies (see paragraph 40 above), which concerned the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification, and did not concern transmission of lawfully obtained data between law enforcement authorities.

Given the nature and extent of the interference in the present case, in combination with the safeguards that were in place under the domestic legal framework, including the precautions taken when communicating the data obtained through interception of communications to another public authority, the Court is satisfied that the system was adequately capable of avoiding abuse of power and finds that Article 8 did not require ex ante authorisation by a court in the context at issue.

Turning to the question of whether the interference was proportionate, the Court notes that the domestic courts carefully examined the facts, assessed the lawfulness of the transmission under the WSJG and conducted an adequate balancing exercise under Article 8 of the Convention between the interests of the applicant companies and the authorities' interests to protect the economic well-being of the country (see paragraph 17 above). In that connection the Court also takes account of the fact that the applicant companies have not put forward any arguments as to why the interference did not pursue a legitimate aim or as to why the balance struck by the domestic authorities was not fair in their particular case.

The foregoing leads the Court to the conclusion that the domestic authorities have put forward relevant and sufficient reasons to justify the necessity and proportionality of the data transmission for the purposes of enforcement of competition law.