5.  The applicant company is a private media company whose registered office is in Ljubljana.
6.  On 10 August 2011 the Competition Protection Office (“the Office”) initiated proceedings against the applicant company under section 23 of the Prevention of the Restriction of Competition Act (hereinafter “the Competition Act”, see paragraph 25 below), following a complaint from two television stations that the applicant company had abused its dominant position.
7.  On 10 August 2011 the Office issued an order to inspect the premises, which contained a warning that if the inspection was obstructed an order imposing a fine amounting to 1% of the applicant company’s annual turnover in the preceding business year could be issued.
8.  On 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’s premises at 9.05 a.m. Mr V., the applicant company’s director, had not been present and none of the applicant company’s 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 a.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 in a 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 a.m., after the arrival of the police, the officers again entered the applicant company’s premises. At 10 a.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.
9.  On 6 October 2011 the applicant company commented on the inspection report, maintaining that nobody had raised their voices at the officers or had asked them to leave the company’s premises. According to their comments, Mr P. had only asked the officers to wait in the reception area for the person on 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.
10.  By an order of 21 February 2012 the Office fined the applicant company 105,000 euros (EUR), 0.2 % of the company’s annual net turnover in the preceding year, for obstructing the inspection on 11 August 2011. The obstruction had been Mr P.’s unwillingness to 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 fizično omogočena) 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’s 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’s conduct had been outside the officers’ control and could have resulted in the destruction of incriminating evidence. Referring to the EU Commission’s 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.
11.  On 22 March 2012 the applicant company brought an action and an application for an interim measure against the above order (see paragraph 10 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 someone on whom they could serve the orders and had been subsequently politely asked to wait in the reception area. The applicant company’s 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.
12.  Meanwhile, in 2013 the Competition Protection Agency (“the Agency”) took over the Office’s tasks and assumed full control of all its pending matters.
13.  On 26 November 2013 the Supreme Court dismissed the applicant company’s 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 that they 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’s premises secure 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’s 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’s 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 31(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.
14.  On 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.
15.  On 15 September 2015 the tax authorities enforced the collection of the imposed fine from the applicant company.
16.  Meanwhile, 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.
17.  On 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.
18.  On 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 the imposition of a fine.
19.  On 24 May 2013 the applicant company brought an action against the Agency’s 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.
20.  On 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.
21.  On 30 June 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.
22.  On 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 those involved 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 had committed a minor offence under section 73(1) of the Competition Act (see paragraph 25 below), imposing a fine of EUR 4,994,491 on the applicant company and several thousand euros on each of the responsible individuals.
23.  On 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 impugned decision, did not constitute a minor offence.
24.  On 18 September 2015 the Ljubljana Higher Court dismissed an appeal by the Agency and upheld the first-instance judgment.