Request for a court order for an investigation by the Slovenian Competition Protection Agency

On 11 April 2013, the Constitutional Court of the Republic of Slovenia found that the Prevention of Restriction of Competition Act (hereinafter: the ZPOmK-1) was unconstitutional in the part that specified that an investigation (as an investigative act) can be carried out without a court order and may only be based on a resolution issued by the Slovenian Competition Protection Agency (hereinafter: the SCPA).

Based on the established unconstitutionality of the ZPOmK-1, the National Assembly adopted the amended ZPOmK-1E, which entered into force on 10 May 2014. The aforementioned act amends the ZPOmK-1 in the part involving the established unconstitutionality and specifies that the SCPA carries out an investigation at a company, against which proceedings have been initiated based on (i) the company's consent and, when required, the consent of the person whose data is under review, or based on (ii) a substantiated written order of the Ljubljana District Court in the presence of two adult witnesses.

The court issues the order within 48 hours of accepting the complete request from the SCPA, which must contain a specification of premises, the documentation and electronic devices that need to be inspected, the substantiation of grounds for the investigation, the evidence or data content that are the subject of the search, a statement of circumstances for the use of an investigative act and its manner of implementation, and also the deadline to complete the investigation. The investigation order must be served by the SPCA to the company subject to an investigation in person at the beginning of the investigation.

The aforementioned amendment introduces reasonable grounds for suspicion that a party breached the prohibition of restrictive agreements or abused its dominant position, and the likelihood that an investigation will provide evidence that are material to the proceedings, as the standard of proof applied for the issuance of a court order. The aforementioned standard of proof thus corresponds to the standard of proof for a house search (search of premises) in criminal proceedings. When inspecting electronic devices, devices associated therewith and data carriers, the SPCA must demonstrate the probability that the electronic device contains electronic data that are material to the proceedings.

Despite adressing the established unconstitutionality in the part relating to the compulsory prior judicial control of the constitutional sphere of a corporate entity's right to (communication) privacy, the issue of constitutional safeguards concerning criminal proceedings, in the context of an investigation and powers of the SPCA (also of the European Commission) with regard to the reaffirmed broad interpretation of criminal proceedings, remains unresolved. Within the context of the investigation in particular, the privilege against self-incrimination and the SPCA's power to demand an explanation from any company representative or employee during the investigation are of relevance. Furthermore, prior to the start of the proceedings, the SPCA is also entitled to address an information request to the company, whereby, in accordance with the case-law of the European Court of Human Rights (Saunders v. United Kingdom of 17 December 1996, p. 72) the privilege against self-incrimination does go beyond a mere direct confession.