Constitutional Court Ruling On Lawfulness Of Anti-Trust Inspections

The Slovenian Constitutional Court has declared the competition authority's regime of inspections to be not in line with the Slovenian Constitution. The Court set the Parliament a one year deadline to change the Slovenian Prevention of Restriction of Competition Act ("PRCA") in this respect.

Until the lapse of this period, the provisions of the PRCA remain in force and the Slovenian Competition Protection Agency ("the Agency") is still entitled to carry out inspections of undertakings based on an order issued by the Agency itself, just as the current regime anticipates.

PRCA on Dawn Raids

Under the current regime put into force by the PRCA, the Agency is entitled to carry out inspections of undertakings that are subject to Agency's proceedings based on an order for inspection issued by the Agency.

Inspections are the Agency's main tool for acquiring evidence and may be conducted against the will of the undertaking concerned. The Agency has full investigative powers and may access all premises related to business and inspect all data carriers.

There is no hierarchy between different investigative prerogatives of the Agency and it does not have to specify which exact business premises it plans to search or which documents shall be of relevance. No judicial protection is allowed against the Agency's order on inspection and the parties may only test its lawfulness together with the final decision on the infringement before the Supreme Court.

On the other hand, the Agency may conduct inspections of private premises only on the basis of a court order.

Challenge by the Supreme Court

In its challenge, the Supreme Court argued that the system as it is goes against at least three basic human rights guaranteed by the Slovenian Constitution, namely (i) the inviolability of dwellings, (ii) protection of the privacy of correspondence and other means of communication, as well as (iii) the right to legal remedies.

While the Constitutional Court has not assessed the last claim due to lack of reasoning, it has decided to test the first two in order to adopt a stance on how far the right to privacy extends with regard to legal persons, an issue that has so far not been clarified by Slovenian jurisprudence.

Argumentation of the Constitutional Court

The Constitutional Court began its reasoning on the premises that the constitutional order is built on the values that in essence pertain to an individual - an independent human being. However, the right to free...