Communicated on 3 June 2020 Published on 22 June 2020

SECOND SECTION

Application no. 19162/19 UAB ,,KESKO SENUKAI LITHUANIA ” against Lithuania lodged on 3 April 2019

SUBJECT MATTER OF THE CASE

The case concerns the applicant company ’ s complaints about lack of access to court as effective remedy and breach of privacy.

Within the framework of an ongoing investigation into possible breaches of competition law, in 2018 officials of the Competition Council conducted a search at the company ’ s headquarters in Kaunas. During that search, the officials non-selectively copied and seized information from the applicant company ’ s computers and mobile telephones, including some 725,000 emails, and some 234,000 electronic documents. The applicant company states that it faced restrictions on contacting its lawyers during that process.

The applicant company then challenged the actions of the Competition Council officials. Having had its complaint dismissed by the Competition Council, the applicant company started proceedings before the administrative courts. The applicant company pleaded that the officials ’ actions breached its rights under Article 8 of the Convention, since some of the emails seized contained information of a private nature. It also argued that, should the investigation be discontinued without the Competition Council taking a decision on the merits, there would remain no possibility for the company to challenge, a posteriori , the Competition Council officials ’ procedural actions. The applicant company noted that, in comparison, within criminal proceedings all actions of the officials could be contested.

By a final ruling of 3 October 2018, the Supreme Administrative Court refused to examine the applicant company ’ s complaint. The court noted that the officials ’ actions had been only an intermediate step in the proceedings when investigating a possible violation of competition law, and that the applicant company would be able to challenge any actions by the officials once a final decision on the merits had been taken by the Competition Council.

Under Articles 6 § 1 and 13 of the Convention the applicant company complains that it did not have a possibility to challenge in court the actions of the Competition Council officials concerning the search and seizure of the confidential materials of a private nature and the restrictions on contacting its lawyers. It pleads that if the Competition Council ’ s (final) decision was to be based on unlawfully collected evidence, the applicant would have to take part in court proceedings which would not have taken place if the Competition Council officials had not exceeded their powers. As to the right to challenge in court procedural actions by the Competition Council officials, the applicant company refers to the Supreme Administrative Court ’ s practice, based on Article 32 § 1 of the Law on Competition, where that court reached opposite conclusions than those in the applicant company ’ s case.

Under Article 8 of the Convention the applicant company further complains that some of the correspondence that had been copied and seized during the search was of a private nature, without any verification of whether it was related to the subject matter of the investigation.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?

If so, did the applicant company have access to a court, for the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see, mutatis mutandis , Ravon and Others v. France , no. 18497/03, § § 28, 31 and 33, 21 February 2008, and Compagnie des gaz de pétrole Primagaz v. France , no. 29613/08, § 30, 21 December 2010; see also Société Canal Plus and Others v. France , no. 29408/08, § 40, 21 December 2010 ?

Has there been a violation of the applicant company ’ s right of access to court, as guaranteed by Article 6 § 1 of the Convention?

2. Has there been a violation of Article 13 of the Convention on account of the administrative courts ’ refusal to examine the applicant company ’ s complaints against the Competition Council ’ s officials (see Compagnie des gaz de pétrole Primagaz , cited above , § 23 )?

3. Has there been an interference with the applicant company ’ s right to respect for its private life, home or correspondence, within the meaning of Article 8 § 1 of the Convention (see Société Colas Est and Others v. France , no. 37971/97, § § 40-42, ECHR 2002 ‑ III; Wieser and Bicos Beteiligungen GmbH v. Austria , no. 74336/01, § 45, ECHR 2007 ‑ IV, and Vinci Construction and GTM Génie Civil et Services v. France , nos. 63629/10 and 60567/10, § 63, 2 April 2015, with further references )?

If so, was the interference in conformity with the requirements of the Article 8 § 2 of the Convention: was it “in accordance with the law”, did it pursue one or more of the legitimate aims set out in that paragraph and was it “necessary in a democratic society”?

Has there been a violation of Article 8 of the Convention (see, mutatis mutandis , Vinci Construction and GTM Génie Civil et Services , cited above , §§ 64-67 and 78; Gutsanovi v. Bulgaria , no. 34529/10, § § 220- 22 , ECHR 2013 ( extracts ) ; and Halabi v. France , no. 66554/14, § 68 in limine , 16 May 2019)?