FOURTH SECTION
\nCASE OF PRODUKCIJA PLUSSTORITVENO PODJETJE D.O.O. v.\u00a0SLOVENIA
\n(Application no. 47072\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n23 October 2018<\/p>\n
FINAL
\n23\/01\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Produkcija Plus storitveno podjetje d.o.o. v. Slovenia,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Ganna Yudkivska, President, Having deliberated in private on 18 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 47072\/15) against the Republic of Slovenialodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Slovenian company, Produkcija Plus storitveno podjetje d.o.o. (\u201cthe applicant company\u201d), on 18 September 2015.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Melihen, a lawyer practising in Ljubljana. The Slovenian Government (\u201cthe Government\u201d) were represented by their Agent, Ms N. Pintar Gosenca, State Attorney.<\/p>\n 3.\u00a0\u00a0The applicant alleged that Articles 6 and 13 had been breached on account of the lack of an oral hearing and the lack of opportunity to be heard and have witnesses examined on its behalf in proceedings concerning the imposition of a fine for the obstruction of an inspection and proceedings concerning a violation of competition rules.<\/p>\n 4.\u00a0\u00a0On 27 May 2016 the aforementionedcomplaints concerning Articles\u00a06 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054\u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant company is a private media company whose registered office is in Ljubljana.<\/p>\n 6.\u00a0\u00a0On 10 August 2011 the Competition Protection Office (\u201cthe Office\u201d) initiated proceedings against the applicant company under section 23 ofthe Prevention of the Restriction of Competition Act (hereinafter \u201cthe Competition Act\u201d, see paragraph 25 below), following a complaint from two television stations that the applicant company had abused its dominant position.<\/p>\n A.\u00a0\u00a0Proceedings concerning the obstruction of an inspection<\/strong><\/p>\n 7.\u00a0\u00a0On 10 August 2011 the Office issued an order to inspectthe premises, which contained a warning that if the inspection was obstructed an order imposing a fine amounting to 1% of the applicant company\u2019s annual turnover in the preceding business year could be issued.<\/p>\n 8.\u00a0\u00a0On 21 September 2011 the Office issued an inspection report which indicated that on 11 August 2011 officers of the Office had arrived at the applicant company\u2019s premises at 9.05\u00a0a.m. Mr V., the applicant company\u2019s director, had not been present and none of the applicant company\u2019s employees had allowed the inspection to be carried out. According to the report, Mr S., the direct marketing executive, explained to the officers that he was not authorised to accept and sign the inspection order or the order to initiate proceedings against the applicant company. The officers asked him to direct them to someone authorised or to the mailroom, so that they could serve the orders and start the inspection. Mr S. took the officers to the mailroom but nobody was there. An employee who arrived at the mailroom at 9.25\u00a0a.m. refused to sign anything and said that she would call her superior. A moment later Mr P., the deputy finance executive, arrived at the mailroom. It is stated in the report that ina loud voice he then asked the officers to leave, pointing with his hand in the direction of the exit and showing no intention to cooperate with the officers, despite being warned by them that refusal to cooperate would be regarded as an obstruction of the inspection, resulting in a fine. Since none of the employees wanted to accept the orders, the officers eventually left them in the mailroom and the orders were thus deemed to be served. According to the report, at 9.31 a.m. the officers left the building because they believed that the inspection would not be possible without police assistance. At 9.57\u00a0a.m., after the arrival of the police, the officers again entered the applicant company\u2019s premises. At 10\u00a0a.m. Mr V. arrived. He apologised for the inconvenience and was willing to cooperate. At 10.45 a.m. the officers started the inspection, which was then carried out without any obstructive behaviour on the part of the applicant company.<\/p>\n 9.\u00a0\u00a0On 6 October 2011 the applicant company commented on the inspection report, maintaining that nobody had raised their voicesat the officers or had asked them to leave the company\u2019s premises. According to their comments, Mr P. had only asked the officers to wait in the reception areafor the personon whom they could serve the orders. Nothing had prevented them from carrying out the inspection. The officers had decided to leave and call the police of their own motion. The police intervention had been unnecessary.<\/p>\n 10.\u00a0\u00a0By an order of 21 February 2012 the Office fined the applicant company 105,000 euros (EUR), 0.2 % of the company\u2019s annual net turnover in the preceding year, for obstructing the inspection on 11 August 2011. The obstruction had been Mr P.\u2019s unwillingnessto cooperate with officers and to immediately facilitate access to evidence and its preservation. It concluded that the applicant company had obstructed the inspection by not making the inspection physically possible (preiskava ni bila fizi\u010dno omogo\u010dena) after being requested and warned to do so by the officers.Waiting in the reception area for the applicant company to prepare for the inspection or for the authorised person of the company to arrive ran contrary to the purpose of an unannounced inspection, which was to secure evidence. The Office also held that it was a company\u2019s duty to cooperate even when its legal representative was absent. In setting the fine, the Office considered that the inspection had been delayed for one hour and thirty minutes, and for twenty-six minutes the applicant company\u2019s conduct had been outside the officers\u2019 control and could have resulted in the destruction of incriminating evidence. Referring to the EU Commission\u2019s practice, it held that the punishment had to be stringent enough to deter the offenders. It also had regard to the subsequent exemplary cooperation of the applicant company and the fact that this had been the first time a fine had been imposed under the Competition Act.<\/p>\n 11.\u00a0\u00a0On 22 March 2012 the applicant company brought an action and an application for an interim measure against the above order (see paragraph\u00a010 above), reiterating the complaints it had raised before the Office (see paragraph 9 above). It requested an oral hearing, maintaining that a direct examination of the evidence was required to properly establish the facts of the case. In particular, the four witnesses, who had been present at the premises on the day of the alleged obstruction, would prove that the applicant company had not obstructed the inspection or refused to cooperate with the officers. They would also show that the officers had not properly introduced themselves and had tried to enter the premises in an aggressive manner. The applicant company also argued that the officers could not be prevented from doing something which they had not specifically requested, namely access to specific places or persons under the inspection. At the time the obstruction had allegedly been committed, the officers had only asked for someoneon whom they could serve the orders and had been subsequently politely asked to wait in the reception area. The applicant company\u2019s employees had complied with the duty to cooperate by trying to find that person. The applicant company argued that the officers could have freely continued with the inspection. Furthermore, had there been an obstruction of the inspection, the Office would have sanctioned the company on the spot and not six months later. As to Mr P., it held that he had not been an employee of the applicant company and had not been authorised to collect any mail. Since he was only in a contractual relationship with the applicant company, his allegedly illegal actions could not be attributed to it. Lastly, given the amount of the fine imposed, which was excessive, immediately enforceable and of a punitive nature, the proceedings at issue had been criminal in nature and required adequate fair trial guarantees.<\/p>\n 12.\u00a0\u00a0Meanwhile, in 2013 the Competition Protection Agency (\u201cthe Agency\u201d) took over the Office\u2019s tasks and assumed full control of all its pending matters.<\/p>\n 13.\u00a0\u00a0On 26 November 2013 the Supreme Court dismissed the applicant company\u2019s action (see paragraph 11 above). It noted at the outset that the applicant company was not allowed to introduce new facts and evidence in the judicial review proceedings and thatthey would not be taken into consideration. The court emphasised that although the applicant company had contested the facts as established by the Office (see paragraph 10 above), it had not challenged the fact that the officers could not immediately after their arrival at the company\u2019s premisessecure the evidence. In particular, the majority of the management had been absent, while Mr P. had refused to cooperate and had asked the officers to leave the premises until the arrival of his superiors. According to the Supreme Court, the applicant company had merely argued that the above-described acts had not constituted an obstruction of the inspection. In the Supreme Court\u2019s opinion this was not a question of fact but purely of law. In this connection,the court held that making the officers wait in the reception area while the company prepared for the inspection ran contrary to the purpose of an inspection. It was irrelevant whether the company\u2019s employees had raised their voices at the officers or had asked them to leave. The only important fact was that the authorised persons could not immediately start securing the evidence. The applicant company had not acted in accordance with the minimum duty to cooperate, which had been necessary for the inspection, and had thus obstructed it. The court also rejected the argument that Mr P. could not obstruct the inspection, finding that he was a contractual worker working in the name of the applicant company in accordance with section\u00a031(5) of the Competition Act (see paragraph 25 below). Lastly, the court deemed the imposed fine adequate, considering the seriousness of the violation and the relevant circumstances of the case.<\/p>\n 14.\u00a0\u00a0On 6 May 2015 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the company.<\/p>\n 15.\u00a0\u00a0On 15 September 2015 the tax authorities enforced the collection of the imposed fine from the applicant company.<\/p>\n B.\u00a0\u00a0Proceedings concerning the finding of a violation of competition rules (supervision proceedings)<\/strong><\/p>\n 16.\u00a0\u00a0Meanwhile, on 7 August 2012 the Office issued a summary of the relevant facts (povzetek relevantnih dejstev), expressing the opinion that the applicant company had abused its dominant position in the television advertising market.<\/p>\n 17.\u00a0\u00a0On 24 September 2012 the applicant company commented on the summary of the relevant facts, requesting an oral hearing and for the examination of several witnesses to prove that it had not restricted competition.<\/p>\n 18.\u00a0\u00a0On 24 April 2013 the Agency decided that the applicant company had been abusing its dominant position in the television advertising market. It found that by requesting exclusivity in advertising from customers and offering them conditional loyalty discounts the applicant company had restricted competition. The Agency also ordered the applicant company to end the above infringement of competition rules, notably section 9 of the Competition Act and Article 102 of the Treaty on the Functioning of the European Union (TFEU). It refused to hold a hearing on the grounds that it was not necessary to hear the witnesses proposed by the applicant company and that the applicant company had had adequate opportunity to present its case in writing. The Agency also noted that the minor-offence proceedings that generally followed were separate from the administrative proceedings. The latter ended with a decision establishing a violation of competition rules, whereas the first also involved a consideration of responsibility for the minor offence at issue and theimposition of a fine.<\/p>\n 19.\u00a0\u00a0On 24 May 2013 the applicant company brought an action against the Agency\u2019s infringement decision (see paragraph 18 above). It reiterated the complaints made before the Agency (see paragraph 17 above), adding that the Agency had violated its right to adversary proceedings and to defend itself. It also requested that the Supreme Court examine the proposed witnesses at an oral hearing.<\/p>\n 20.\u00a0\u00a0On 3 December 2013 the Supreme Court dismissed the action (see paragraph 19 above). It held that the examination of the witnesses proposed by the applicant was unnecessary because the facts of the case had already been fully established by the Agency, which had provided logical and convincing reasons for each of the central issues in dispute. Consequently, it refused to hold a hearing.<\/p>\n 21.\u00a0\u00a0On 30\u00a0June 2015 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant company for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the company.<\/p>\n C.\u00a0\u00a0Minor-offence proceedings concerning a violation of competition rules<\/strong><\/p>\n 22.\u00a0\u00a0On 7 May 2014 the Agency initiated minor-offence proceedings,alleging a violation of competition rules by the applicant company and three responsible individuals of the company. In accordance with the Minor Offences Act, the Agency informed thoseinvolved in the proceedings in writing of the alleged minor offence and invited them to submit their written statements within five days of service of the document. On 21 July 2014 it found that they hadcommitted a minor offence under section 73(1) of the Competition Act (see paragraph 25 below), imposing a fine of EUR\u00a04,994,491 on the applicant company and several thousand euros on each of the responsible individuals.<\/p>\n 23.\u00a0\u00a0On 3 November 2014 the Ljubljana Local Court granted their application for judicial review and stayed the minor-offence proceedings, finding that the act, as it had been described in the operative part of the impugneddecision, did not constitute a minor offence.<\/p>\n 24.\u00a0\u00a0On 18 September 2015 the Ljubljana Higher Court dismissed an appeal by the Agencyand upheld the first-instance judgment.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Prevention of the Restriction of Competition Act<\/strong><\/p>\n 25.\u00a0\u00a0The relevant provisions of the Competition Act (Official Gazette no.\u00a036\/08, with further amendments), asin force at the relevant time, readas follows:<\/p>\n Section 9<\/p>\n \u201c(1) Any abuse by one or more undertakings of a dominant position in a market in the territory of the Republic of Slovenia or a substantial part of it shall be prohibited.<\/p>\n …\u201d<\/p>\n Section 12<\/p>\n \u201c(1) The Agency is responsible for monitoring the implementation of this Act and Articles 101 and 102 of the Treaty on the Functioning of the European Union [TFEU]. The Agency monitors and analyses the market conditions to the extent necessary for the development of effective competition, conducts proceedings and issues decisions in accordance with this Act, and submits its opinions to the National Assembly and the Government on general issues within its competence.<\/p>\n (2) The Agency shall act as a minor-offence authority, [when] adopting decisions in cases of minor offences concerning a violation of the provisions of this Act or the provisions of Articles 101 and 102 of the TFEU, in accordance with the law governing minor offences, unless otherwise stipulated by this Act. Minor-offence proceedings shall be conducted by an authorised official of the Agency,which meets the conditions under the law governing minor offences.<\/p>\n …\u201d<\/p>\n Section 15<\/p>\n \u201c(1) The Agency shall decide on matters within its competence in accordance with this Act, following the procedure set out in this Act.<\/p>\n (2) Unless otherwise stipulated by this Act, the provisions of the law governing general administrative procedure shall apply to the decision-making of the Agency.<\/p>\n (3) There shall be no appeal against decisions issued by the Agency.\u201d<\/p>\n Section 21<\/p>\n \u201cThe Agency shall decide in the proceedings without an oral hearing unless the official conducting the proceedings considers that an oral hearing is necessary to clarify or establish the essential facts.\u201d<\/p>\n Section 23<\/p>\n \u201cThe Agency may decide to initiate proceedings of its own motion if it learns of circumstances indicating that the provisions of sections 6 or 9 of this Act or Articles 101 or 102 of the TFEU have been violated.\u201d<\/p>\n Section 29<\/p>\n \u201c(1) An inspection shall be conducted by employees of the Agency … (hereinafter \u201cthe authorised person\u201d).<\/p>\n (2) Authorised persons may:<\/p>\n – access and examine premises, land and means of transport (hereinafter \u201cthe premises\u201d) at the registered office of the undertaking and in other locations at which the undertaking itself or another undertaking authorised by the undertaking concerned performs the activity and business for which there is a probability of a violation of the provisions of this Act or Articles101 or 102 of the TFEU;<\/p>\n – examine the books of account, contracts, documents, business correspondence, business records and other information relating to the business of the undertaking, irrespective of the medium on which they are stored (hereinafter \u201cbooks of account and other documentation\u201d);<\/p>\n – take or obtain in any form copies or extracts of books of account and other documentation …;<\/p>\n – seal all business premises and business books of account and other documentation for the period and to the extent necessary for the inspection;<\/p>\n – seize items and books of account and other documentation for a maximum of twenty working days;<\/p>\n – request any representative or member of staff of the undertaking (hereinafter \u201cthe representative\u201d) to give an oral or written explanation of the facts or documents relating to the subject matter and purpose of the inspection …;<\/p>\n – examine papers disclosing the identity of persons;<\/p>\n – perform other actions in line with the purpose of the inspection.<\/p>\n …\u201d<\/p>\n Section 31<\/p>\n \u201c…<\/p>\n (2) If an undertaking obstructs the authorised person in the exercise of [his or her] powers under subsection (2) of section 29 of this Act, the Agency may issue an order imposing on the undertaking a fine in the amount of 1% of its annual turnover in the preceding business year. The time-limit for payment of the fineshall be no less than fifteen days and no more than a month.<\/p>\n …<\/p>\n (4) An order under subsections (2) and (3) of this section is enforceable. Enforcement shall be conducted by the tax authorities…<\/p>\n (5) An undertaking shall be deemed to be obstructing an inspection if the inspection is being obstructed by the members of its management or supervisory bodies, its employees, or by its contractual workers.\u201d<\/p>\n Section 34<\/p>\n \u201c(1) The Agency shall draw up an inspection report after completing the inspection.<\/p>\n …<\/p>\n (4) The undertaking subject to the inspection may comment on the inspection report within fifteen days of service.\u201d<\/p>\n Section 36<\/p>\n \u201c(1) A summary of the relevant facts shall include findings of fact and evidence relevant to the decision.<\/p>\n …\u201d<\/p>\n Section 37<\/p>\n \u201c(1) The Agency may issue a decision establishing the existence of a violation of sections 6 or 9 of this Act or Articles 101 or 102 of the TFEU, and require the undertaking concerned to cease the violation.<\/p>\n (2) The same decision may impose on the undertaking an obligation to take reasonable measures to eliminate the violation and its consequencesin particular through the disposal of the business or part of the undertaking\u2019s business, a division of the undertaking or a disposal of shares in the undertaking, the transfer of industrial property rights and other rights, the conclusion of licensing and other agreements that may be concluded in the course of operations between undertakings, or by ensuring access to the infrastructure.<\/p>\n …\u201d<\/p>\n Section 54<\/p>\n \u201c(1) A judicial review of the Agency\u2019s decisions shall be provided in the proceedings prescribed by this Act (hereinafter \u201cjudicial review proceedings\u201d).<\/p>\n (2) The law governing administrative disputes shall apply, mutatis mutandis, to judicial review proceedings initiated against Agency\u2019s decisions, unless otherwise stipulated by this Act.\u201d<\/p>\n Section 57<\/p>\n \u201cIn judicial review proceedings the complainant may not introduce new facts or present new evidence.\u201d<\/p>\n Section 58<\/p>\n \u201cThe court shall review the Agency\u2019s decisions within the limits of the action and within the limits of the grounds stated in the action, and shall, of its own motion,pay attention to significant violations of the provisions of the proceedings…\u201d<\/p>\n Section 59<\/p>\n \u201cThe court shall, as a rule, decide without a hearing.\u201d<\/p>\n Section 61<\/p>\n \u201cNo appeal shall be allowed against a judgment or order issued in judicial review proceedings.\u201d<\/p>\n Section 73<\/p>\n \u201c(1) A fine of up to 10% of the annual turnover of the undertaking in the preceding business year shall be imposed on a legal entity, sole proprietor or self-employed individual:<\/p>\n …<\/p>\n – for abuse of a dominant position in contravention of section 9 of this Act or Article 102 of the TFEU,<\/p>\n …<\/p>\n (2) A fine of between EUR 5,000 and EUR 10,000 shall be imposed on the responsible person of a legal entity … for the minor offence referred to in the preceding subsection.<\/p>\n …\u201d<\/p>\n B.\u00a0\u00a0Administrative Disputes Act<\/strong><\/p>\n 26.\u00a0\u00a0The applicable provisions of the Administrative Disputes Act (Official Gazette no. 105\/06, with further amendments) are set out in Mirovni In\u0161titut v. Slovenia (no. 32303\/13<\/a>, \u00a7\u00a7 19, 21 and 22, 13 March 2018).<\/p>\n 27.\u00a0\u00a0In addition, section 64 reads, in so far as relevant, as follows:<\/p>\n \u201c(1) The court shall uphold the action and annul the contested administrative decision by way of a judgment:<\/p>\n …<\/p>\n 2.\u00a0\u00a0if it concludes that it is unable to resolve the dispute on the basis on the facts of the case established in the proceedings for issuing the administrative decision because the evidence was assessed erroneously, the established facts contradict the data from the case file, the essential facts were incompletely established, or an erroneous conclusion was drawn from the established facts …\u201d<\/p>\n 28.\u00a0\u00a0The Administrative Disputes Act does not provide for the reopening of proceedings before the domestic courts on the basis of a finding by the Court of a violation of the Convention.<\/p>\n C.\u00a0\u00a0Criminal Code<\/strong><\/p>\n 29.\u00a0\u00a0Article 299 of the Criminal Code (Official Gazette no. 55\/2008, with further amendments) provides, in so far as relevant, as follows:<\/p>\n \u201c(1) Whoever, by force or threat of imminent use of force, prevents an official from performing an official act intended to becarried out within the scope of hisofficial duties … shall be sentenced …\u201d<\/p>\n
\nPaulo Pinto de Albuquerque,
\nFaris Vehabovi\u0107,
\nIulia Antoanella Motoc,
\nGeorges Ravarani,
\nMarko Bo\u0161njak,
\nP\u00e9ter Paczolay, judges,
\nand Marialena Tsirli, Section Registrar,<\/p>\n