Reference no.:
Access to Public Information
In Decision No. U-I-52/16, dated 12 January 2017 (Official Gazette RS, No. 5/17), upon the request of the Supreme Court, the Constitutional Court decided on the constitutionality of the statutory regulation contained in the Access to Public Information Act that provides everyone the right to obtain data regarding certain contracts from business entities under the dominant influence of public law entities (in particular, the state or municipalities). The entities required to disclose such data are (a) companies under the direct or indirect dominant influence of the state, municipalities, or other public law entities, and (b) banks that benefitted from measures to strengthen the financial stability of banks determined by the Act Regulating Measures of the Republic of Slovenia to Strengthen the Stability of Banks. The data that were accessible to the public under the challenged regulation concerned the fundamental information regarding contracts related to consulting, intellectual property, and other intellectual services (i.e. the type of contract, the contracting parties, the contract value, the date the contract was concluded, and its duration). The Constitutional Court reviewed whether the absolute and indiscriminate access to these data was constitutional, as the regulation enabled everyone, without any exceptions or any weighing of conflicting interests, to access information regarding the affected entities’ contracts related to consulting, intellectual property, and other intellectual services. These entities were furthermore required to enable access to data that had been created before the challenged Act came into force. The Constitutional Court reviewed the challenged statutory regulation from the perspective of free economic initiative (the first paragraph of Article 74 of the Constitution), the principle of trust in the law (Article 2 of the Constitution), and the principle of equality before the law (the second paragraph of Article 14 of the Constitution). The review especially focused on the perspective of free economic initiative; however, an unconstitutionality was not established.
With regard to the review from the perspective of free economic initiative, the Constitutional Court clarified with precedential effect that the first paragraph of Article 74 of the Constitution also protects business confidentiality and business secrecy. This right thus also protects business secrecy referring to information and data of a business nature that (a) concern the business operations or activity of a business entity, that (b) are not publicly known, and (c) whose content is such that there exists a probability that its free accessibility or the accessibility thereof to a business competitor would cause significant damage to the business entity. As the challenged regulation interfered with the right to free economic initiative, the Constitutional Court had to decide whether the interference was grounded in a public interest and whether the interference was in accordance with the general principle of proportionality (Article 2 of the Constitution).
The Constitutional Court identified the public interest in enabling such broad access to data concerning certain contracts of business entities that are under the dominant influence of public law entities in values such as reducing the risk of corruption, fostering conscientious, honest, diligent, and financially efficient business operations and management, and increasing the transparency of the operations of companies with connections to the public sector. As the public interest justifying the statutory regulation was thus not in dispute, the Constitutional Court had to establish whether the weight of the interference with free economic initiative was proportionate to the weight of the public interest. When assessing the proportionality of the interference, the Constitutional Court took into account that already from the outset (i.e. in an abstract sense) the free economic initiative of companies that are controlled by public law entities (as well as of banks that have endured on the market primarily due to state aid) does not carry the same weight and importance as the free economic initiative of entities that are controlled by private law entities. The fundamental premise is that the more a company is public, the less protection it enjoys in the framework of the right determined by the first paragraph of Article 74 of the Constitution. However, in the assessment of the Constitutional Court, the negative effects of the challenged regulation were limited due to specific circumstances that distinguished the case at issue from Case No. U-I-201/14, U-I-202/14 (Decision dated 19 February 2015, Official Gazette RS, No. 19/15). Firstly, as the challenged Act does not require the publication of the relevant data on the internet, an interested applicant must file a request, which in practice results in a narrowing of the circle of those who become acquainted with the data concerning the disclosed contracts. Secondly, as the regulation does not call for the disclosure of only data that by their very nature tarnish the business reputation of the relevant entities, one cannot speak of a non-discriminatory “naming and shaming” – in other words, the provisions contain no retributive or “quasi punitive” tendencies. It is, thirdly, of particular importance that the challenged Act requires the disclosure of contracts concerning auxiliary and supporting operations, and not of the contracts that constitute the core of an entity’s operations, and therefore, precisely due to the auxiliary and supporting character of the relevant contracts, as a general rule their disclosure will not have significant adverse effects on the entity’s competitiveness and market performance.
In light of the limited adverse effects of the challenged regulation and the significant expected public benefits attached to the efficient, honest, and diligent management of public funds, the Constitutional Court held that the benefits exceed the weight of the interference with the constitutional right to free economic initiative. Consequently, the statutory regulation is not inconsistent with the Constitution.
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Supreme Court
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establishment – it is not inconsistent with the Constitution/statute