FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32559/96
by FORTUM OIL AND GAS OY
against Finland
The European Court of Human Rights (Fourth Section), sitting on 12 November 2002 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 28 May 1996,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Fortum Oil And Gas Oy, is a limited liability company registered in Finland. It forms part of the Fortum Group which was founded through the merger of the limited liability company Neste Oy (which lodged the application initially; henceforth “Neste”) and Imatran Voima Oy. Before the Court the applicant company is represented by Mr Marc van der Woude, a lawyer practising in Brussels, Belgium. The respondent Government were represented by their Agents, Mr Holger Rotkirch, then Director-General for Legal Affairs in the Ministry for Foreign Affairs, and Mr Arto Kosonen, Director in the same Ministry.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a multinational company specialising, inter alia, in the wholesale of petrochemical products, as was Neste at the time of relevance to the case. In light of submissions lodged by another company in the field – Suomalainen Energiaosuuskunta (“SEO”) – the Competition Office (kilpailuvirasto, konkurrensverket), on 11 October 1993, initiated proceedings before the Competition Council (kilpailuneuvosto, konkurrensrådet), requesting that Neste be ordered to cease abusing its dominant position on the Finnish market for motor engine fuel. In the view of the Competition Office the reductions in Neste’s wholesale prices discriminated against some of its clients, thereby violating the 1992 Act on Competition Restrictions (laki kilpailunrajoituksista, lag om konkurrensbegränsningar 480/1992). The Competition Office therefore requested that Neste be ordered to cease and desist from applying certain pricing criteria.
In a further submission of 11 February 1994 the Competition Office requested that an administrative fine (seuraamusmaksu, påföljdsavgift) be imposed. As a new fact the Competition Office referred to Neste’s unwillingness to concede that it had been violating the relevant provisions and accordingly to change the price of fuel sold to SEO.
On 16 June 1994 the Competition Council held that Neste had abused its dominant position on the relevant market but found no reason to impose a fine on the company. Neste, SEO and the Competition Office all appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). Neste maintained that it did not hold a dominant position on the market in question and in any case had not been abusing it. SEO appealed in so far as the Competition Council had accepted certain of Neste’s criteria for price differentiation. The Competition Office contended that a fine should have been imposed.
On 9 and 14 September 1994 Neste forwarded to the Competition Office its interpretation of the Competition Council’s decision as to the pricing criteria to be applied in light of the latter’s decision. On 17 October 1994 the Competition Office replied that its interventions were limited to questions of principle. It could therefore not pronounce itself on Neste’s proposed interpretation regarding the acceptable pricing criteria.
On 14 and 30 November 1994 Neste again drew the Competition Office’s attention to its difficulties in interpreting the Competition Council’s decision.
In a submission to the Supreme Administrative Court dated 26 June 1995 Neste demanded equality of arms in the proceedings. Reference was made to a telephone conversation between Neste’s representative and a legal officer of the Supreme Administrative Court from which it had transpired that a secret memorandum of the Competition Office dated 19 June 1995 had been filed with the Supreme Administrative Court. The memorandum discussed Neste’s conduct following the Competition Council’s decision. The document had been released to Neste by the Competition Office itself on 22 June 1995 following Neste’s request.
In a further submission to the Supreme Administrative Court dated 24 July 1995 Neste challenged the accuracy of the Competition Office’s memorandum, including the conclusions drawn. Neste again objected to the Supreme Administrative Court’s failure to hear it formally in respect of the Competition Office’s observations and apparently other memoranda.
By decision of 30 November 1995 (reported in its 1995 Yearbook A, p. 246) the Supreme Administrative Court, without commenting on Neste’s procedural objections of 26 June and 24 July 1995, upheld the Competition Council’s decision in large part. The court found, inter alia, that Neste, being in a dominant position on the relevant market, could in principle have objectively justifiable grounds for treating its clients differently according to certain criteria. In the case under examination Neste had not, however, shown any convincing grounds for differentiating between its clients on any ground other than on the basis of the volume of fuel purchased. By applying other pricing criteria Neste had accordingly abused its dominant position.
Having concluded that a fine should have been imposed on Neste, the Supreme Administrative Court referred the fixing of its amount to the Competition Council. It further ordered that Neste’s conduct after 16 June 1994, in respect of which the court had received “substantial new information”, was to be taken into account. The court declined to examine itself what significance should be given to that information.
The Supreme Administrative Court’s case-file indicates that it deliberated on 22 and 30 May as well as on 14 June 1995.
On 4 December 1995 the Competition Council confirmed to the parties that the sole question which remained to be decided was the size of the fine to be imposed on Neste. In January 1996 the Competition Office proposed a fine in the amount of FIM 100,000,000 (approximately EUR 16,819,000). This proposal was rejected by the Competition Council. The Competition Office then filed a new proposal in which the amount of the fine was maintained but on different grounds.
In the beginning of 1996 Neste’s representative found in the Supreme Administrative Court’s case-file a copy of further observations drawn up by the Competition Office and dated 6 March 1995. They bore a stamp indicating that they had been received by the Supreme Administrative Court on 8 March 1995. The Competition Office had forwarded a copy to the Competition Council but not to Neste. The observations sought to refute Neste’s arguments by highlighting the salient points of a 1994 decision of the European Commission in the case Texaco v. Norsk Hydro which the Competition Office argued supported the Competition Council’s decision of 16 June 1994. The Supreme Administrative Court had not forwarded a copy of the observations to Neste.
Following an oral hearing the Competition Council, by decision of 30 October 1996, fixed Neste’s fine at FIM 2,000,000 (about EUR 336,000). It noted that Neste’s pricing practice from 1 January to 8 February 1993 had clearly discriminated against SEO and had been found to be unlawful under the 1992 Act. While the prohibited pricing practice had not been significant in nature, it had not been so insignificant as to justify a waiver of the fine.
As regards Neste’s conduct from 17 June 1994 to 30 November 1995 the Competition Council found that it had not deviated to such an extent from its decision of 16 June 1994 as to justify the imposition of a fine. In addition, Neste’s attempts to obtain approval of its amended pricing practice had been in vain, since the Competition Office had failed in its obligation to direct and supervise the implementation of that decision. Accordingly, no fine was imposed for Neste’s conduct during that period.
An ordinary appeal to the Supreme Administrative Court was not attempted by Neste.
On 5 July 2000 the Supreme Administrative Court refused, in extraordinary proceedings, the applicant company’s request for an annulment of its decision of 30 November 1995 in the ordinary proceedings under the 1992 Act. The court found that no procedural error had taken place and reasoned, inter alia, that in so far as it had ordered that the fine to be imposed on Neste should take account of its conduct between the Competition Council’s decision of 16 June 1994 and the court’s decision of 30 November 1995, it had not become evident that the court had based itself on material in respect of which Neste had not been heard. Moreover, the court had expressly declined to draw any conclusion as to whether the supplementary information received by it should be taken into account when considering the amount of the fine to be imposed.
As of 30 April 2000 the State owned 75.38 % of the applicant company’s shares. As of 28 June 2002 its ownership had decreased to 60.77%.
B. Relevant domestic law
1. Competition legislation
The 1992 Act prohibits abuse of a dominant market position such as the application of pricing criteria which are unreasonable or likely to restrict competition (section 7 (4)). An entrepreneur found to have violated sections 4-7 of the 1992 Act shall be fined for competition infringement, unless the conduct is considered insignificant or a fine would be unjustified for the purposes of protecting competition. The fine shall be fixed in light of certain considerations and must remain within certain limits. At the relevant time the fine – payable to the State – was to be imposed by the Competition Council upon proposal of the Competition Office. The Competition Council was also competent to order that the conduct prohibited by sections 4-7 of the 1992 Act be discontinued (section 8, as in force until partly revoked by Act no. 303/1998 and partly amended by Act no. 1529/2001). An appeal lay open to the Supreme Administrative Court inter alia against an order that certain conduct should cease and against the imposition of a fine (section 21, as in force at the relevant time). At the relevant time those appeal proceedings were governed by the 1950 Act on the Appeals Procedure in Administrative Matters (laki muutoksenhausta hallinto-asioissa, lagen om ändringssökande i förvaltningsärenden 154/1950).
As from 2002 the fine shall be imposed – and any injunction be upheld – by the Market Court (markkinaoikeus, marknadsdomstolen) on the proposal of the Competition Office. The Competition Office may issue an interim injunction to the effect that a certain business conduct should cease immediately. It may also impose interim conditions seeking to remedy a competition restriction. At the relevant time such an injunction or condition was to be brought before the Competition Council within a week (section 14). It must now be brought before the Market Court within the same period (Act no. 1529/2001).
The Competition Council (abolished by Act no. 1531/2000) consisted of nine members appointed by the President of the Republic for three years on proposal by the Council of State. During their mandate members had the same right to remain in office as that enjoyed by judges. They acted with judicial responsibility, had to swear a judicial oath and were obliged to step down from a case in the same circumstances as a judge. The hearings of the Competition Council were held in camera and the case-files were non-public, unless otherwise decided. The decisions were public unless otherwise decided for particular reasons (Act no. 481/1992, as subsequently amended).
2. Hearing of parties to administrative proceedings
At the time of the proceedings before the Supreme Administrative Court, domestic law contained no general provisions on the manner in which parties to administrative proceedings were to be heard in writing. Even in the absence of such provisions it was considered an essential feature of fair administrative proceedings that all parties were properly heard. The hearing requirement was considered to include the right of a party to be informed of a matter affecting him or her, of the progress of the proceedings and of any evidence adduced. It entitled a party to submit observations on any evidence adduced by other parties but only if that evidence could affect the outcome of the case. Whenever such evidence had been adduced, the court could not rely on it unless the other party had been heard. A party needed not be heard when a certain claim was not examined on its merits or was rejected immediately.
The Act on the Supreme Administrative Court (74/1918) provided, inter alia, that the court could request an opinion or other observations for the purpose of seeking evidence. The cases were dealt with by respecting “lawful court procedure” (sections 14-15).
As from 1 December 1996 the Act on Administrative Court Procedure (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996) applies to proceedings before the Supreme Administrative Court. It contains explicit provisions on the hearing of parties. Provisions on parties’ right to be heard can also be found in section 21 (2) of the Constitution (Suomen Hallitusmuoto, Regeringsform för Finland 731/1999; section 16 (2) of the former Constitution as amended by Act no. 969/1995).
3. Publicity of documents
According to section 2, subsection 1 of the Act on Publicity of Official Documents (laki yleisten asiakirjojen julkisuudesta, lag om allmänna handlingars offentlighet 83/1951), as in force at the relevant time, any document prepared and issued by an authority as well as any document sent or handed in to an authority and remaining in its possession was to be deemed an official document. Under section 9, however, a document could be ordered to be kept secret by Decree, for example when this was deemed necessary in order to safeguard business activities.
The Decree on Certain Exceptions to the Publicity of Official Documents (asetus sisältävä eräitä poikkeuksia yleisten asiakirjain julkisuudesta, förordning innefattande vissa undantag i fråga om allmänna handlingars offentlighet 650/1951) stipulated, inter alia, that documents containing information about commercial or industrial activities, the pursuit of a trade or profession or about the financial position of a private person were to be kept secret, unless the concerned company or person consented to disclosure (section 1).
On the one hand, a party within the meaning of section 19 of the Act on Publicity of Official Documents (whose interest, right or obligation the matter concerned) had the right to obtain information even from a document not designated as publicly accessible, if that information could influence, or could have influenced, the consideration of the case. On the other hand, it was possible to withhold from a party information appearing even in an document of the aforementioned nature, if disclosure thereof would have been contrary to a particularly important public or private interest.
The 1951 Act and Decree were replaced, on 1 December 1999, by a new Act on the Public Character of Activities Conducted by Public Authorities (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet 621/1999) which contains comparable provisions on private economic interests and on parties’ right of access to documents.
According to the Act on the Competition Office (711/1988), the Office shall publish its findings to the extent deemed appropriate. Information regarded as a business or professional secret shall not be disclosed, unless the concerned party has consented thereto (section 3).
COMPLAINTS
1. The applicant company complains that Neste was denied a fair hearing within the meaning of Article 6 § 1 as well as Article 6 § 3 (a) and (b) of the Convention in the course of the ordinary proceedings before the Supreme Administrative Court. The documents produced by the Competition Office on 6 March and 19 June 1995 were not formally communicated to Neste. Neither was Neste fully informed of the accusations against it, which hampered its effective defence. In line with the Court’s autonomous interpretation of Article 6 and given the important fine eventually imposed, the proceedings against Neste involved the determination of a “criminal charge”.
2. The applicant company further complains that Neste was unable to have the Supreme Administrative Court’s decision of 30 November 1995 reviewed by a higher tribunal in so far it had ordered, in the first and the last resort, that the fine to be imposed should take account of Neste’s conduct between the Competition Council’s decision of 16 June 1994 and the decision of the Supreme Administrative Court.
Moreover, the Competition Council’s decision had not clearly prohibited Neste from continuing the practice found to have violated the 1992 Act while the appeal proceedings were pending. Neste could therefore legitimately expect that its appeal would have the effect of suspending the enforcement of the Competition Council’s decision. Given the Supreme Administrative Court’s order that Neste’s pricing practice in the course of the appeal proceedings should also be taken into account, the amount of the fine became dependent on the duration of those proceedings.
The applicant company invokes Article 2 of Protocol No. 7 in isolation, Article 6 of the Convention in conjunction with Article 2 of Protocol No. 7, and Article 1 of Protocol No. 1 in isolation.
3. The applicant company finally complains under Article 7 § 1 of the Convention that the criminal offence of which Neste was “convicted” and sanctioned was not formulated with sufficient precision in the 1992 Act. Prior to the case against Neste there was no jurisprudence determining the practice proscribed by that legislation which had furthermore been subject to several amendments. Despite several attempts Neste was unable to obtain direction by the Competition Office as to the manner in which the company should change its practice so as to conform with the Competition Council’s decision and the 1992 Act. Given that the criteria for fixing the fine changed from one of the Competition Office’s proposal to another, the final amount could not be based on foreseeable criteria.
THE LAW
1. The applicant company complains that Neste was denied a fair hearing within the meaning of Article 6 §§ 1 and 3 (a) and (b) of the Convention in the course of the ordinary proceedings before the Supreme Administrative Court which ended with its decision of 30 November 1995. The documents produced by the Competition Office on 6 March and 19 June 1995 were not formally communicated to Neste. Neither was Neste fully informed of the accusations against it.
Article 6 reads, in so far as relevant to the present case, as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence; ...”
The Government accept that the applicant company may claim status as a “victim” within the meaning of Article 34 of the Convention, of a violation of the rights set forth in the Convention and its Protocols. Under domestic law state-owned companies are not exercising public authority and are essentially comparable with privately-owned companies, both company types being governed by the Act on Limited Liability Companies and other legislation. Nor is the applicant company under any specific government control which could lead to another conclusion.
The Government do not contest the applicability of Article 6 and concede that the Competition Office’s memoranda of 6 March and 19 June 1995 were not communicated to Neste, having been submitted to the Supreme Administrative Court of the Competition Office’s own motion. The two memoranda contained sensitive business information and were secret under domestic law. In competition law proceedings the parties often submit voluminous documentation of their own motion, rendering it difficult for the court to decide the case. Had the court received such further observations at its own request, Neste would have been heard.
The Government argue that at any rate, Article 6 was not violated as the memoranda had no bearing on the Supreme Administrative Court’s decision of 30 November 1995. The memorandum of 19 June 1995 mainly assessed the activities of Neste after 16 June 1994, when the decision of the Competition Council had been rendered. The Supreme Administrative Court, however, in leaving open the question of the fine to be imposed for the period between the Competition Council’s decision and its own, explicitly declined to examine the relevance of the further evidence which it had received concerning Neste’s market conduct. The memorandum of 6 March 1995 contained no such new information or evidence which could have affected the outcome of the proceedings ending on 30 November 1995. As the contents of the memoranda were largely identical and eventually Neste was able to comment on the one dated 19 June 1995 before the Supreme Administrative Court’s decision was rendered, the company effectively commented on both. In so far as the court referred the case back to the Competition Council, Neste had a further opportunity to present its views on the matter.
The Government furthermore note that in refusing Neste’s annulment request the Supreme Administrative Court found that no procedural error had taken place in the proceedings ending on 30 November 1995. The court expressly found that its decision of that date had not been based on evidence in respect of which Neste had not been heard.
The applicant company contends that Article 6 § 1 has been violated. The two memoranda concerned the very core of the case brought against Neste and their contents were not identical. It is up to every court to organise its procedure and registry so as to enable the handling of complex cases involving voluminous documentation. In this case the Supreme Administrative Court did not just err in failing to communicate the memoranda: one of its legal officers refused to disclose the second memorandum of 19 June 1995 despite Neste’s request. Even though the court had already deliberated on the case prior to receiving that memorandum, it may have influenced the final drafting of the decision, whereas the case had been deliberated on by the time Neste was able to comment on that document. The business secrets contained in the memoranda concerned Neste directly and should have been communicated to it of the court’s own motion.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant company further complains that Neste was unable to have the Supreme Administrative Court’s decision of 30 November 1995 reviewed by a higher tribunal in so far it had ordered that the fine to be imposed by the Competition Council should take account of Neste’s conduct between 17 June 1994 and 30 November 1995. Moreover, the Competition Council’s decision had not clearly prohibited Neste from continuing the practice found to have violated the 1992 Act while the appeal proceedings were pending. Neste could therefore legitimately expect that its appeal would have the effect of suspending the enforcement of the Competition Council’s decision. Given the Supreme Administrative Court’s order that Neste’s pricing practice in the course of the appeal proceedings should also be taken into account, the amount of the fine became dependent on the duration of those proceedings.
The applicant company invokes Article 2 of Protocol No. 7 in isolation, Article 6 of the Convention in conjunction with Article 2 of Protocol No. 7, and Article 1 of Protocol No. 1 in isolation.
Article 2 of Protocol No. 7 reads as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court reiterates that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. Any restrictions contained in domestic legislation on the right to a review guaranteed by this provision must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see Krombach v. France, no. 29731/96, § 96, ECHR 2001-II).
The Court has already assumed that Article 6 applies to legal persons in the same way as it does to individuals and that a company may be regarded as having been “charged with a criminal offence”, within the autonomous meaning of that expression for the purposes of Article 6 (see, among other authorities, the Corigliano v. Italy judgment of 10 December 1982, Series A no. 57, § 34).
For the purposes of the present complaint the Court will assume that the Competition Council’s decision of 16 June 1994 in which Neste was found to have violated the 1992 Act amounted to a “conviction” of a criminal offence, within the autonomous meaning of that expression for the purposes of Article 2 of Protocol No. 7.
The Court considers, given the composition of the Competition Council and the judicial safeguards spelled out in the law by which it was governed, that it may be considered a “tribunal” within the meaning of Article 2 of Protocol No. 7. As there is no reason to doubt that the Supreme Administrative Court meets the same requirements of a “tribunal”, the applicant’s “conviction” was reviewed by a higher instance in accordance with Article 2 of Protocol No. 7.
Even assuming that the Competition Council’s decision of 16 June 1994 did not constitute a “conviction of a criminal offence” by a “tribunal” within the meaning of Article 2 of Protocol No. 7, the Court notes that the Supreme Administrative Court, in its decision of 30 November 1995, not only upheld the finding that Neste had violated the 1992 Act but also ordered that a fine should be imposed on the company – in an amount to be determined by the Competition Council. That decision of the Supreme Administrative Court can at any rate be regarded as a “conviction” by a “tribunal”, within the autonomous meaning of that expression for the purposes of Article 2 of Protocol No. 7.
The Court notes, moreover, that although no fine had been imposed by the Competition Council, the Competition Office’s appeal to the Supreme Administrative Court had sought to have such a fine imposed. Under Article 2 § 2 of Protocol No. 7 the right guaranteed therein may be subject to exceptions in certain exhaustively enumerated cases. The Supreme Administrative Court’s conclusion that a fine should be imposed on Neste can be equated with a “conviction” “following an appeal against acquittal”.
In the same context the Court would further note that the Supreme Administrative Court reserved, for the Competition Council’s assessment, the weight to be given to the fact that Neste had pursued its pricing practice in the course of the appeal proceedings. The Court will assume that the Competition Council’s decision of 30 October 1996 – in which the amount of the fine was fixed – amounted to the imposition of a “sentence” on Neste, within the meaning of Article 2 § 1 of Protocol No. 7. Prior to that decision the Competition Council held an oral hearing at which Neste had ample opportunity to present argument in respect of the amount of the fine. The Court finally notes that Neste chose not to appeal to the Supreme Administrative Court against the “sentence” imposed by the Competition Council.
In the overall circumstances there is thus no indication that Article 2 of Protocol No. 7 was violated.
As for the remainder of the complaints under this head, the Court will examine them below under Article 7 of the Convention.
No further issue arises under Article 6 of the Convention or Article 1 of Protocol No. 1 to the Convention.
It follows that this complaint is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant company finally complains under Article 7 § 1 of the Convention that the criminal offence of which Neste was “convicted” and sanctioned was not formulated with sufficient precision in the 1992 Act. Neste was also unable to obtain directions from the Competition Office as to the manner in which the company should change its practice so as to conform with the Competition Council’s decision of 16 June 1994 and the 1992 Act. Given that the criteria for fixing the fine changed from one of the Competition Office’s proposal to another, the final amount was not based on foreseeable criteria.
Relying on various provisions (see point 2), the applicant company has further complained that the Competition Council, in its decision of 16 June 1994, did not clearly prohibit it from continuing, while the appeal proceedings were pending, the pricing practice found to have violated the 1992 Act. Neste could therefore legitimately expect that its appeal would have the effect of suspending the enforcement of the Competition Council’s decision. Moreover, given the Supreme Administrative Court’s subsequent order that Neste’s pricing conduct in the course of the appeal proceedings should also be taken into account, the amount of the fine became dependent on the duration of those proceedings.
The Court finds that all these grievances are most appropriately examined under Article 7 § 1 of the Convention which reads as follows:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
Article 7 embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to the detriment of an accused, for instance by analogy. From these principles it follows that an offence and the sanctions provided for it must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Baskaya and Okcuoglu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 36 and 39, ECHR 1999-IV with further references).
The scope of the notion of foreseeability depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to physical or legal persons carrying on a business activity, as such persons are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails. Finally, however clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. It is in the first place for the national authorities, notably the courts, to interpret and apply national law (ibidem).
For the purposes of this complaint the Court will again assume that the Supreme Administrative Court’s conclusion, in its decision of 30 November 1995, that a fine should be imposed on Neste for its violation of the 1992 Act, constituted a “conviction” of a criminal offence, within the meaning of Article 7 § 1 of the Convention.
The Court notes that the 1992 Act prohibits abuse of a dominant market position such as the application of pricing criteria which are unreasonable or likely to restrict competition. An entrepreneur shall be fined for competition infringement, unless the conduct in question is considered insignificant or a fine would be unjustified for the purposes of ensuring competition. The 1992 Act also afforded the Competition Council the competence to order that the proscribed conduct be discontinued.
The Court finds that the applicable law was sufficiently foreseeable. With the benefit of appropriate legal advice, Neste – a multinational company with a large expertise at its disposal – could reasonably be expected to be able to appreciate at the material time that it ran a real risk of being found in violation of the 1992 Act and of being financially sanctioned therefor. The Competition Council’s decision of 16 June 1994 was sufficiently clear in setting out the pricing practice found to have violated the 1992 Act. It follows from that decision and from the terms of the 1992 Act that Neste was reasonably able to appreciate that any conduct pursued contrary to the terms of the Competition Council’s decision could be taken into account when the amount of a possible fine was to be determined. In these circumstances Neste could not have expected that its appeal to the Supreme Administrative Court would in itself enable the company to ignore the terms of the Competition Council’s decision until final judgment had been rendered.
Nor does the Court find any support for the contention that the amount of the fine could not be foreseen, given the refusal of the Competition Office to take a position as to whether Neste’s proposed conduct in light of the Competition Council’s decision of 16 June 1994 was permissible or not. At any rate, in fixing the fine far below the amount proposed by the Competition Office, the Competition Council eventually took account of Neste’s efforts to change its pricing practice after the Competition Council’s first decision. As a further mitigating factor, the Competition Council noted that Neste’s attempts to obtain approval of those changes had been futile, since the Competition Office had failed in its obligation to supervise the implementation of the Competition Council’s decision by providing proper direction. As a result, no fine was imposed for Neste’s conduct from 17 June 1994 to 30 November 1995. Neither can the applicant company in these circumstances argue convincingly that the amount of the fine became dependent on the duration of the appeal proceedings to Neste’s detriment.
In the overall circumstances the Court is satisfied that the Supreme Administrative Court’s interpretation of the relevant law did not go beyond what could be reasonably foreseen in the circumstances. Nor is there any indication that the principle “nullum crimen sine lege” embodied in Article 7 of the Convention was violated in any other respect.
It follows that this complaint is also manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant company’s complaint concerning the fairness of the proceedings;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy