Slovenia: Do Companies Have The Right To Be Heard During A Dawn Raid?

The Slovenian courts were recently asked to rule on companies' right to be heard during unannounced investigations (so-called 'dawn raids') by the Competition Protection Agency.


The agency conducted a dawn raid due to a suspicion that the company in question was in a dominant position, during which the company allegedly refused to cooperate with the agency's officials. Based on this, the agency issued a fining decision stipulating that the company had violated its duty to cooperate and imposed a significant fine on it. The agency's allegations were largely based on the following factors:

  • Agency representatives had to wait 54 minutes to begin the inspection. 
  • They were denied access to computers. 
  • The company employees refused to give information on the location of certain documents.

Notably, the agency's report on the investigation, which was the basis for issuing the decision, neither included a detailed description of the dawn raid, nor listed or described the alleged failures.

Against this background, the company filed an action against the agency's decision, arguing that its ability to comment on the agency's findings was unlawfully limited, as the agency did not describe the alleged infringements or provide for their legal qualification in its report. By doing so, the agency violated the company's right to be heard on the facts and circumstances before the adoption of the decision, and consequently the company had no opportunity to present its opinions on the allegations, which could have shed a different light on the case.

The administrative court confirmed the agency's decision and set aside all the allegations; however, its decision was later reversed by the Supreme Court. A retrial before the administrative court followed, in which the Supreme Court's decision was incorporated accordingly and some important procedural safeguards were clarified.

Legislative framework

According to the Prevention of Restriction of Competition Act, the agency must prepare a report after completing a dawn raid. This report must include, among other things:

  • a brief description of the investigation; 
  • a list of statements given by representatives or employees; and 
  • a list of documents and other items that the agency obtained during the investigation.

Following delivery of the report, the company under investigation has 15 days to provide its comments.

In its first decision, the administrative court held that the facts established in the decision derived from the report and that the company had an opportunity to be heard by providing its comments; hence, its right to be heard was not violated. However, this position was overturned by the Supreme Court, which reviewed the agency's report in detail in order to determine whether this was sufficient to guarantee the company's constitutional rights, including the right to be heard.

Agency's report 

The Supreme Court confirmed that the company had indeed had an opportunity to provide its comments to the report. However, it looked more closely at the content and established that it did not contain a description of the alleged failures, but only a brief description of the investigation as a whole.

Although the legal prerequisites were therefore fulfilled, the Supreme Court went further and emphasised the importance of an effective adversarial proceeding before issuing a fining decision and stressed that this can be guaranteed only by giving companies an opportunity to provide their comments to the agency's description of the facts relevant to the fining decision. For this purpose, the report should include all legally relevant facts and a company should have an opportunity to review the legal relevance or special meaning of these facts. The Supreme Court also acknowledged that the purpose of the report is not only to form a basis for issuing a fine, but also to ensure that companies can actively participate in proceedings.

Further, the right to be heard includes a right for the company to indicate all the facts that support its case, rather than simply being able to declare whether a particular statement is true. Thus, the right to be heard can be exercised effectively only where the company understands:

  • the context in which the established facts will be used; and 
  • which additional circumstances regarding the facts can be presented in support of its legal position.

The Supreme Court further noted that the right to be heard not only refers to actual aspects of the case, but also legal aspects.

What next?

According to the administrative court's second decision, the agency will have to repeat the proceeding and ensure that the company's right to be heard is upheld. This means that the respective company will have an opportunity to comment on all relevant facts, circumstances and evidence.

It will be interesting to see how this decision affects future cases. Following the Supreme Court's rationale, the agency must now apply a broader interpretation to the existing provision in the Competition Act regarding the right to be heard and include further details in its investigation reports, as it would be difficult to argue that the case at hand does not set a precedent for future cases.

This article first appeared on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions