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Slovenia / Constitutional Court of the Republic of Slovenia / U-I-157/16-12, Up-729/16-15, Up-55/17-20

Bank of Slovenia, European Central Bank. complaint against four court orders of the District Court (Okrožno sodišče) and a decision of the District Court (Okrožno sodišče), and also initiated a review of constitutionality procedure against the Criminal procedure Act (Zakon o kazenskem postopku).

Policy area:
Economic and monetary affairs
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court of the Republic of Slovenia
Type:
Decision
Decision date:
19/09/2018

Key facts of the case:

The case originated in criminal (police) investigations against high-profile functionaries and employees of the Bank of Slovenia (BS), including its Governor, in connection with the deletion of subordinated bonds. During the procedures the contested orders were issued in an attempt to perform urgent investigative measures in order to secure evidence and traces of criminal acts of abuse of official position or official rights.

 

The European Central Bank (ECB) refused access to and to give over the seized documents and demanded the cancellation of the orders as far as they apply to the documents, directly or indirectly entailing information or documents, belonging to ECB. It also demanded that the orders be repealed, which the court refused in the contested decision. BS argued that the orders were unconstitutional, as there was no judicial remedy available for the third persons, affected by such orders and the orders were not sufficiently substantiated. It also initiated the review of constitutionality procedure against the Criminal Procedure Act.

Among other things, the ECB argued, that the decision of the District Court violates its rights under Art. 47 of the Charter and suggested to the Constitutional Court to pose a preliminary question to the CJEU regarding the interpretation of Protocol (No 7) on the privileges and immunities of the European Union. It stated that the contested decision was based on facts and evidence, it had not been heard about. This was supposed to go against the right to a fair trial. Art. 47 of the Charter should be understood as an equality of arms provision and it should be understood as giving every party a right to be informed of all written and oral submissions.

 

Beforehand, the Constitutional Court stressed, that locus standi under the individual constitutional complaint procedure may only be granted to a person, who can be a holder of those rights. It found that under national legislation neither of the applicants can be a holder of the constitutional rights they invoked, as they are both legal persons governed by public law and acting ex iure imperii, and therefore lack active legitimation to initiate such proceedings. However, the Constitutional Court then considered, whether in accordance with Art. 15 of the Constitution, which stipulates, that no human right may be restricted on the grounds that the Constitution does not recognize that right or freedom or recognizes it to a lesser extent, Art. 6 of the ECHR or Art. 47 of the Charter may demand from the Constitutional Court to accept the complaint. It found that under Art. 6 ECHR public legal entities are not considered holders of the right to fair trial. With regard to the EU Charter, the question of formal requirements for a constitutional complaint is, in line with the principle of procedural autonomy, a question of national law. EU law does not demand an unlimited access to a constitutional complaint. The invocation of Art. 47 therefore does not change the fact, that the ECB (and BS) does not have a standing before the court in a constitutional complaint procedure. The Constitutional Court reached this conclusion based on national law and therefore without having to consider, whether legal persons governed by public law can be holders of rights under Art. 47 of the Charter.

Key legal question raised by the Court:

The key legal question was whether the Bank of Slovenia and the European Central Bank have locus standi before the Constitutional Court of the Republic of Slovenia in a constitutional complaint procedure, taking EU law (and the Charter) into consideration.

Outcome of the case:

The Constitutional Court decided to declare the constitutional complaints (as well as the constitutionality review initiative) inadmissible and therefore did not decide on the substance of the case. It found that EU law grants national authorities a procedural autonomy and therefore it did not have to decide whether ECB and BS could be holders of rights under Art. 47 od the Charter.