IV. ÚS 386/24
Before conducting an on-site inspection, the Office for the Protection of Competition (the Office) is obliged to properly assess complaints received from competing entities, as well as anonymous submissions that suggest a breach of competition law. It must also record in the administrative file – in a way that allows for review – indications that sufficiently justify the necessity of carrying out the inspection. This also applies to indications in the form of information known to the Office from its own official activities.
In March 2019, the Office carried out an on-site inspection at the complainants' business premises in connection with a suspected breach of competition law. The Office suspected that the complainants and the company FORTUNA GAME a.s. had formed a cartel of betting operators and committed a total of six anti-competitive infringements, allegedly taking place since at least 2013. The inspection was based primarily on a submission from SAZKA, a.s. – a competitor of the complainants – which the company later supplemented. The complainants subsequently challenged the on-site inspection by filing an action for protection against unlawful interference. They primarily argued that the inspection constituted a disproportionate interference with their constitutionally guaranteed rights. According to them, the Office did not have sufficient indications to justify the on-site inspection. The materials at the Office's disposal could not, in their view, give rise to reasonable suspicion warranting the inspection in the scope in which it was carried out. The Regional Court found that the on-site inspection as a whole constituted unlawful interference and ordered the Office to refrain from using the contents of the documents obtained during the inspection. The Office lodged a cassation complaint against this judgment. The Supreme Administrative Court upheld the cassation complaint and, by the judgment now challenged by constitutional complaint, quashed the decision of the Regional Court and returned the matter for further proceedings. The Regional Court, bound by the legal opinion expressed in the cassation judgment, issued a new ruling and dismissed the complainants' action. The complainants then filed a second cassation complaint against this new ruling, which the Supreme Administrative Court rejected. It stated that it was bound by its original legal opinion expressed in the first judgment and that the remainder of the complainants' arguments lacked merit.
The complainants filed a constitutional complaint seeking the annulment of the two judgments of the Supreme Administrative Court and one judgment of the Regional Court concerning the on-site inspection carried out by the Office. They argued that these rulings had violated their constitutionally guaranteed rights to the inviolability of the home, the confidentiality of correspondence, and judicial protection.
The Fourth Panel of the Constitutional Court (Justice Rapporteur Zdeněk Kühn) upheld the constitutional complaint and annulled the judgments of the Supreme Administrative Court of 29 November 2023 (Ref. No 7 As 199/2022-61), of the Regional Court in Brno of 31 May 2022 (Ref. No 31 A 70/2019-290), and of the Supreme Administrative Court of 26 January 2022 (Ref. No 7 As 438/2019-56).
The key issue in the case was the constitutional assessment of the on-site inspection. The case concerned the obligation of the Office to assess complaints submitted by competitors of the undertakings under investigation or anonymous submissions. The complainants denied that the Office had had sufficiently serious indications of possible anti-competitive conduct to justify the inspection. In their view, the Office was obliged to assess the complaint received from SAZKA, as well as the anonymous submission, and this assessment should have been clearly reflected in the administrative file.
The Constitutional Court agreed with the complainants that the on-site inspection, in its entirety, represented a disproportionate interference with their constitutionally guaranteed rights. The Court found that the Office did not have sufficiently serious indications of potential anti-competitive behaviour to justify conducting an on-site inspection at the complainants' premises.
The Office had only unverified complaints submitted by competitors (and supplements thereto), along with two newspaper articles, which related to just one of the five suspicions. It relied predominantly on the two aforementioned complaints, the contents of which were either not verified at all or assessed in a procedurally flawed manner, rendering the Office's actions unreviewable. The references to knowledge acquired from the Office's own official activity were wholly vague. These submissions therefore could not serve as a sufficient basis for such a broad on-site inspection at the complainants' premises. In this respect, the Office failed to meet the requirements imposed on it by the constitutional order, and its inspection was thereby rendered unreviewable.
Justice Milan Hulmák dissented.