The Competition and Consumer Protection Act P 19/17
On 16 January 2019 at 10.00 a.m., the Constitutional Tribunal considered a question of law referred by the Court of Appeal in Warsaw (the 6th Division – Civil Matters) with regard to the Competition and Consumer Protection Act.
The Constitutional Tribunal adjudicated that Article 105n(4), second sentence, of the Competition and Consumer Protection Act of 16 February 2007 is inconsistent with Article 78 in conjunction with Article 45(1) of the Constitution of the Republic of Poland.
The Constitutional Tribunal discontinued the review proceedings as to the remainder.
The ruling was unanimous.
The court referring the question of law challenged the constitutionality of the provision of the Competition and Consumer Protection Act of 16 February 2007 pursuant to which there was no possibility of appealing against a court's decision permitting the search of premises and belongings in investigation proceedings and antitrust proceedings. Such a legal solution – in the opinion of the court referring the question of law – did not respect basic constitutional guarantees within the scope of the right to a fair trial.
After considering the content of the question of law, the Constitutional Tribunal deemed that the main higher-level norm for the review should be Article 78 of the Constitution in conjunction with Article 45(1) of the Constitution.
The Constitutional Tribunal agreed with the stance presented by the court referring the question of law that the protection of the rights of economic operators required providing an effective judicial review, not limited within its remit merely to the issue of the legality of a search applied as a procedural means. Although, in the course of antitrust proceedings, a competent court may examine the lawfulness of the decision ordering a search, issued by the President of the Office of Competition and Consumer Protection, the court is not authorised to verify whether the scope of the search was properly specified, and also there is no possibility of referring to the actual circumstances that constituted the basis of filing an application for the permit to carry out the search.
The lack of the possibility of filing an appeal indirectly concerns a procedural means that, by its nature, severely interferes with the realm of the rights of an economic operator. Actions taken during a search infringe the freedom of economic activity as well as the constitutionally protected right to one’s private life and right of ownership to a greater extent than in the case of a standard inspection carried out by an administrative authority on the basis of legal provisions on economic operators. Due to the nature of that interference and the category of cases it concerns, it is justified to resort to standards provided for the criminal procedure as regards the protection of the rights of searched persons or other persons whose rights may be infringed as a result of the search. In the Tribunal’s opinion, this requires striking a balance between the effectiveness of proceedings, which is determined by the public interest, and the need to guarantee the right to defence as well as protection against arbitrary interference in the private activity of an economic operator and against the disproportionality of selected inspection measures.
The Presiding Judge of the adjudicating bench was Judge Leon Kieres, and the Judge Rapporteur was Judge Justyn Piskorski.