Ústavní soud k povinnostem ÚOHS před provedením místního šetření

In March 2019, ÚOHS conducted on-site inspections at the premises of several betting companies ("complainants") regarding possible violations of competition rules, specifically concerning suspicions of cartel formation among the complainants and several other anti-competitive offenses. The investigation was initiated primarily based on a complaint from another betting company.

The complainants filed a constitutional complaint, arguing that ÚOHS did not have sufficiently serious indications to conduct the on-site inspection and that ÚOHS had a duty to verify the received complaints, or that this verification should have been evident from the file. The Constitutional Court subsequently upheld the complaint and overturned the lower court rulings.

In its ruling ref. no. IV. ÚS 386/24, the Constitutional Court reminded that although on-site inspections are crucial for the protection of competition (as in many cases they represent the only effective tool for ÚOHS to obtain evidence), they must always meet the conditions of legality and constitutionality to avoid so-called "fishing expeditions," where ÚOHS conducts inspections arbitrarily without specific suspicion and blindly tries to capture as much evidence as possible.

In the case at hand, ÚOHS did not have sufficient initial indications to start the investigation, and therefore did not pass the suitability test. The Constitutional Court acknowledged that "competitive" or anonymous complaints can represent a relevant source of indications of anti-competitive behavior, but emphasized that they must be approached cautiously, as their nature can significantly affect the credibility of the information, and to comply with legal procedures, it is necessary to verify the content of the complaint in a qualified manner and adequately record this process.

The Constitutional Court summarized that ÚOHS had only unverified complaints from competitors, along with two newspaper articles that only concerned one of several suspicions. ÚOHS either did not verify these initial indications at all or did not record them in a procedurally correct manner, leading to the unreviewability of its procedure. The on-site inspection as a whole was therefore found to be illegal and constituted an unreasonable interference with the constitutionally guaranteed rights of the complainants.

The full text of the Constitutional Court's ruling is available HERE.

Authors:

Vladimír Petráček

František Schirl

Johanna Roháčková