FIFTH SECTION

DECISION

Application no . 62020/11 RUTAR MARKETING D.O.O. against Slovenia

The European Court of Human Rights ( Fifth Section ), sitting on 15 April 2014 as a C ommittee composed of:

Ann Power-Forde , President, Boštjan M. Zupančič , Helena Jäderblom , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 8 September 2011 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company , Rutar Marketing d.o.o. , is a limited liability company registered in Slovenia. It was represented before the Court by Mr R. Grilc , a lawyer practising in Klagenfurt .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant company , may be summarised as follows.

3. The applicant company sells furniture. On 27 February 2008 it was fined 3,000 euros (EUR) by the Market Inspectorate of the Republic of Slovenia (hereinafter “the Inspectorate”) for selling a bed without appropriate instructions in Slovenian, although such instructions were included in German, English, Dutch and French. The Inspectorate ’ s decision stated that the applicant company had thereby violated section 33 of the Consumer Protection Act.

4. On 7 March 2008 the applicant company made an application for judicial review in which it alleged that the Inspectorate had wrongly applied the relevant law, arguing that the product in question was accompanied by a voluminous eight-page instruction manual, which was composed “almost entirely” of sketches showing how to assemble the bed, save for the front-page note in German, English, Dutch and French, informing the consumers that these were assembly instructions. The applicant company argued that such instructions were in line with section 33 of the Consumer Protection Act, which had been amended to incorporate the case-law of the European Court of Justice determining that information to consumers could be conveyed by the use of pictograms, signs, sketches, and so on. Referring to judgments C-217/99, C-51/93, C-33/97 and C-85/94 of the European Court of Justice, the applicant company concluded that any other requirements would be at variance with Article 30 of the Treaty establishing the European Community (hereinafter “the TEC”). Lastly, the applicant company complained about the amount of the fine.

5. On 7 December 2009 the Ljubljana Local Court dismissed the applicant company ’ s application for judicial review, reasoning that the decisive facts of the case had been correctly established by the Inspectorate and that no violation of substantive or procedural provisions could be found. The local court pointed out that, although the instructions for use could be drawn up in the form of either texts or pictograms or sketches, in so far as text was used, it had to be in Slovenian. However, the instructions for use at issue submitted by the applicant company, and accepted as evidence, did not support the company ’ s view that they were composed almost entirely of sketches, as it was evident that those sketches were complemented by text which was not drawn up in Slovenian. Moreover, as regards the amount of the fine, which in the applicant company ’ s opinion was too high, the local court emphasised that the amount imposed was the statutory minimum, and that it had been for the Inspectorate to assess whether to use the rules on mitigation of sentence or on the petty offence exception.

6. On 5 February 2010 the applicant company lodged a constitutional complaint against the local court ’ s judgment, reiterating the submissions regarding the content of the instructions for use at issue. It added that the local court should have properly taken into account the case-law of the European Court of Justice, in particular its judgment no. C-33/97, which imposed on the Member States a requirement to allow the use of symbols and pictograms in such instructions, and authorised the national courts to determine in each individual case whether the means used provided full information to the consumers. The applicant company alleged that the local court had not examined the question whether the sketches themselves enabled sufficient understanding of the instructions, and in that regard argued that the text was, in fact, completely superfluous. The applicant company added that if the local court had not been able to reach a conclusion on whether the sketches sufficed for the assembly of the product, or whether the wording of section 33 of the Consumer Protection Act was at variance with the European legislation, it should have, of its own motion, lodged a reference for a preliminary ruling before the European Court of Justice. In the applicant company ’ s opinion, the fact that the local court had failed to lodge such a reference constituted a violation of its right to judicial protection.

7. Moreover, the applicant company complained that the impugned judgment had been rendered without an oral hearing, and by a court that had not met the requirements of an independent and impartial tribunal established by law. Namely, the local court had allegedly merely reproduced the decision of the Inspectorate without conducting any proceedings, scheduling an oral hearing or taking any evidence. Thereby, according to the applicant company, its right to an effective remedy had also been violated.

8. On 4 March 2011 the Constitutional Court rejected the applicant company ’ s constitutional appeal as inadmissible pursuant to Section 55b (1) (3) in conjunction with Section 55a (2) (4) of the Constitutional Court Act, applying the statutory presumption that no significant consequences had been incurred by the applicant company in the case involving a minor offence.

B. Relevant European Union law

9. The TEC , as in force until 1 December 2009, included the following provisions:

Article 28

“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”

Article 234

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of this Treaty;

(b) the validity and interpretation of acts of the institutions of the Community and of the ECB [European Central Bank];

(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

10. The TEC was amended and re-named Treaty on the Functioning of the European Union (hereinafter “the TFEU”) when the Treaty of Lisbon amending the Treaty on European Union and the TEC entered into force on 1 December 2009. Article 28 of the TEC became Article 34 of the TFEU ; and the former Article 234 became Article 267.

C . Relevant domestic law and practice

1. Consumer Protection Act

11. Section 33 of the Consumer Protection Act reads as follows:

“(1) For goods which, for their correct use, require a certain procedure or which, if used incorrectly, could cause a danger to the user or to other people, or could pollute the environment, the producer shall provide instructions for use. Instructions for use can also be attached or imprinted on the goods or respectively, on its packaging. Instructions for use may be in writing, in picture or sketch form or a combination of the three.

(2) Instructions shall be provided in a language which consumers may easily understand and which enable the correct use of a product. In so far as the goods are intended for sale in the territory of the Republic of Slovenia, the entire instructions for use shall be drawn up in Sloven ian .

(3) Enterprises selling goods to consumers shall also be obliged to include instructions for use.”

2. Minor offences proceedings

12. The relevant provisions of the Minor Offences Act are set out in Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011).

3. Admissibility criteria in the constitutional complaint procedure

13 . The relevant principles and case-law regarding the admissibility of constitutional appeals in minor offences proceedings are set out in Bradeško and Rutar Marketing d.o.o. v. Slovenia ((dec.), no. 6781/09, §§ 15-18 and 33, 7 May 2013).

4. Decision Up-858/09, U-I-199/09 of the Constitutional Court

14 . In its decision of 15 April 2010, the Constitutional Court reviewed a decision of the Supreme Court dismissing the plaintiffs ’ appeal against the rejection of their application to be granted international protection. Establishing that the Supreme Court had failed to address some of the plaintiffs ’ essential allegations, one of which was their complaint that the provisions of domestic law did not conform to the EU requirements and their proposal that a preliminary ruling be sought from the European Court of Justice, the Constitutional Court found that the plaintiffs ’ right to the equal protection of rights under Article 22 of the Constitution had been violated.

COMPLAINTS

15. The applicant company complained under Article 6 of the Convention that the Ljubljana Local Court had failed to lodge a reference for a preliminary ruling before the European Court of Justice . Moreover, the impugned judgment had been rendered without an oral hearing, and by a court that had not met the requirements of an independent and impartial tribunal established by law. Furthermore, the applicant company argued that its constitutional appeal had been unfairly rejected as not entailing a violation of its constitutionally guaranteed rights or freedoms which would have had significant enough consequences.

16. Lastly, under Article 13, the applicant company complained that the domestic courts had denied it an effective remedy to challenge the fine imposed on it by the Inspectorate by failing to properly address the merits of its case.

THE LAW

17 . The applicant company, reiterating the reasons adduced in its constitutional complaint (see paragraph 6 above), argued that the Ljubljana Local Court had been required to lodge, of its own motion , a reference for a preliminary ruling before the ECJ , which it had failed to do. Furthermore , the applicant company complained that its right to a fair trial had been violated, as , despite the criminal nature of the minor offences proceedings , the local court had failed to conduct an oral hearing and thereby provide it with the possibility of explain ing that the sketches showing the assembly steps were entirely sufficient for the understanding of the instructions for use. In addition, in the applicant company ’ s opinion, the manner in which the local court had conducted the proceedings, merely reproducing the Inspectorate ’ s decision without taking any evidence or conducting a hearing, had failed to ensure the minimum requirements of independence and impartiality of a tribunal established by law. Moreover, arguing that violations of human rights and fundamental freedoms should not be differentiated according to the gravity of their consequences, the applicant company critic ised the Constitutional Court for having used this, in its view, unacceptable criterion for rejecting its constitutional complaint and pointed out that such differentiation allowed for possible abuses, as it enabled the authorities to consider any deficiencies as insignificant and refuse to deal with them.

18. Lastly, the applicant company complained that the domestic courts had ignored its arguments and failed to recognise that the case had entailed a question of EU law. In its opinion, the combined effect of the mere reproduction of the Inspectorate ’ s decision by the local court and the subsequent rejection of its constitutional complaint without examining its merits violated its right to an effective remedy.

19. The applicant company relied on Articles 6 and 13 of the Convention . However, the Court will examine the complaints solely under Article 6, which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

20 . As regards, firstly, the alleged failure of the Ljubljana Local Court to request a preliminary ruling, t he Court reiterates that the Convention does not guarantee, as such, any right to have a case referred to the ECJ for a preliminary ruling under Article 2 67 of the TFEU , and that in any event, the applicant company did not request that the matter be brought before the ECJ.

21 . Secondly, as regards the applicant company ’ s complaint about the lack of an oral hearing, the Court reiterates that the general principles concerning this issue are outlined in Jussila v. Finland ([GC], no. 73053/01, §§ 40-45, ECHR 2006 ‑ XIII) and Flisar v. Slovenia (no. 3127/09 , §§ 33-35 , 29 September 2011). In the present case, the applicant company ’ s main complaint before the local court w as based on the alleged wrong appli cation of the law; the Inspectorate ’ s findings on the facts were not challenged and the instructions for use at issue were attached to its application and accepted as evidence by the local court . Having regard to this, the Court considers that the issues raised in the applicant company ’ s application for judicial review did not call for an oral presentation of arguments; also the company ’ s argument to the effect that the text in the instructions was in any event unnecessary for the understanding of the assembly process could have been made – but was not – in its written application. Moreover, the applicant company did not propose that any additional evidence be taken by t he local court or that an oral hearing be conducted (see, conversely , Milenović v. Slovenia , no. 11411/11 , § 31, 28 February 2013 ). In these circumstances, the Court finds that the Ljubljana Local Court was justified in dispensing with an oral hearing.

23. As regards the remaining complaints, the Court finds, in the light of all the material in its possession that they do not disclose any appearance of a violation of the Articles relied on by the applicant.

24. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Ann Power-Forde              Deputy Registrar President