MIRS carried out 13,324 inspections in 2023 and issued 6,587 administrative and minor offence measures.[1] The scale of MIRS’s activities for parties subject to inspection makes it necessary to have a good knowledge of procedural rules and procedural rights.
The chance of being visited by a market inspector can never be neglected, but the likelihood of an inspection procedure being initiated is always dependent on factors affecting the performance of the MIRS’s work, i.e. whether the area is covered by the annual inspection plan, whether the MIRS received a complaint or notification, or whether it was the inspector’s personal observation.[2] Although the scope of MIRS’s activities and thus the substantive rules are regulated by different sectoral regulations, the procedural rules of the Market Inspection Act,[3] Inspection Act,[4] General Administrative Procedure Act[5] and Minor Offences Act[6] are common to all of them.
MIRS conducts administrative inspection and minor offence proceedings. We have outlined below some guidelines that can serve as a reference in the event of an inspection procedure. To some extent different rules and legalities apply in minor offence proceedings, but they are not discussed in this article.
1. No need to panic. The initiation of a procedure is aimed at investigating the facts and circumstances of the case, and the authority’s conduct and powers are defined by law. Inspections can be announced in advance, but not necessarily. A procedural record shall be drawn up and shall include a description of the proceedings and the content of the actions and statements made in the proceedings. If you are personally present at the procedural act, you should carefully examine the record before signing it and comment on any shortcomings or inconsistencies.
2. The consequences of (non-)cooperation. In the course of the inspection procedure, the party subject to inspection shall, at the request of the inspector, make available written explanations, documentation and a statement relating to the subject matter of the inspection within a set time limit. Failure to comply with the inspector’s request within the set time limit shall constitute a minor offence punishable by a fine: EUR 1,500 for a legal person and EUR 500 for a sole proprietor – a self-employed individual, as well as the person responsible (Article 38 of the ZIN). By deliberately failing to cooperate, the party subject to inspection may also worsen its position by being restricted at a later stage of the procedure, i.e. the appeal procedure, from adducing new facts and evidence on which the party could have relied until the decision was issued.
3. Exercise your right to be heard. The right to be heard is a fundamental postulate of a fair procedure, and the party subject to inspection must be given the opportunity to be heard on the facts and circumstances established before a decision is issued. During the inspection procedure, the party subject to inspection should be proactive in stating the facts and circumstances in their favour and in gathering material to support those facts. Both the party subject to inspection and their responsible person have the right to participate in the performance of procedural steps, such as, for example, on-spot inspections, the examination of witnesses, the appointment and examination of experts.
The right to participate is specifically regulated when exercising supervision over a legal entity or a sole proprietor. The absence of the legal or statutory representative of the legal entity, the sole proprietor or the authorized representative of the party subject to inspection is not an obstacle for the inspector to carry out all the procedural steps and to examine all the evidence, if the circumstances of the particular case so require. In such cases, however, with the exception of urgent and immediate measures, the party subject to inspection must always be served with a record and be invited to make a written or oral statement of the facts and circumstances established within a specified (reasonable) time limit before a decision is issued. Failure to do so would constitute a breach of the right to be heard, which constitutes a substantial procedural violation.
4. Mystery shopping. In 2024, the amended ZTI-1 introduced among the powers of market inspectors the mystery shopping and purchase of goods, services or samples of goods for the purposes of carrying out compliance checks directly or by means of remote communication, if necessary, with a secret identity. The possibility of mystery shopping is thus no longer reserved for cases where the signs of a minor offence or information on the offender can be established in this way, as provided for in the ZIN.
5. Administrative warning. Where a market inspector finds irregularities during an inspection procedure and determines that a warning is a sufficient measure in view of the seriousness of the act, or that a warning will achieve the purpose of the measure, they may decide to issue an administrative warning. The inspector shall warn the party subject to inspection of the irregularities and their consequences and shall set a deadline for the rectification of the irregularities. The inspector’s assessment of the sufficiency of this measure is usually based on the assumption that the party subject to inspection is aware of the unlawfulness of their conduct and of the necessity to remedy the irregularities and is therefore likely to comply with the normative requirement within the deadline.[7]
It is important to bear in mind that an administrative warning is a specific legal concept – although it is a measure imposed by the inspector as an authority, an administrative warning does not (yet) constitute a “sanction” – a warning does not have the legal nature of a final decision and does not have the legal enforceability effect of a measure imposed on a party subject to inspection by means of a decision.[8] Consequently, the party subject to inspection cannot appeal against an administrative warning in the same way as against a decision; nor is it necessary for such party to take the administrative warning into account if they consider that the findings and criticisms of the authority are not justified. The Inspectorate will then proceed with the case by adopting a decision, against which the party subject to inspection will also have the right to appeal and thus challenge the findings and allegations made by the authority.
6. Pay attention to the running and expiry of deadlines. During the procedure, there are many situations where the competent inspector sets a deadline for the party subject to inspection to do something: submit documentation, provide explanations, remedy deficiencies. In this context, it is important to pay attention to the start of the deadline, which, in the case of deadlines set by days, is calculated from the first day following the event from which it is calculated. The day of service or communication or the event from which the deadline is to be calculated is not itself to be counted in the deadline.
Practical experience shows that inspectors usually set short deadlines of a few days for actions in proceedings, sometimes as short as 2 days for a particular action. Especially in large cases, the deadline set may be too short, so check whether it can be extended by submitting a request before the expiry of the deadline in question and setting out the justifiable reasons for the extension. Some procedural deadlines are extendable. However, the deadline for the correction of irregularities found in the proceedings is a material deadline which forms an integral part of the decision on the administrative case. Such a deadline cannot, therefore, be extended by application, but its correctness and lawfulness can be challenged only by means of an appeal against the decision. In determining the deadline, the inspector must also take into account the principle of proportionality, i.e. the deadline in which the party subject to inspection who acts diligently can remedy the irregularities found.
7. The measures imposed by the inspector (may) be enforced immediately. In accordance with Article 30 of the ZIN, an appeal against an inspector’s decision does not (in principle) suspend its execution. This means that, despite an appeal being lodged as an ordinary remedy in the proceedings, proceedings for enforcement may be initiated immediately after the expiry of any deadline for the voluntary execution of the measure imposed. In such a case, you should explore whether there are circumstances on the basis of which you may seek a suspension of enforcement in the case.
This article provides a brief overview of some of the main points of reference in the case of the visit of a market inspector. Due diligence is the guiding principle in the inspection procedure; by knowing the rules of the procedure and your rights, the party subject to inspection can influence the course of the procedure.
[1] Business report of the Market Inspectorate of the Republic of Slovenia for 2023, Ljubljana, February 2024, p. 4.
[2] Ibidem.
[3] Market Inspection Act (in Slovenian: Zakon o tržni inšpekciji, Official Gazette of the Republic of Slovenia, No. 12/24, as amended – “ZTI-1”).
[4] Inspection Act (in Slovenian: Zakon o inšpekcijskem nadzoru, Official Gazette of the Republic of Slovenia, No. 43/07, as amended – “ZIN”).
[5] General Administrative Procedure Act (in Slovenian: Zakon o splošnem upravnem postopku, Official Gazette of the Republic of Slovenia, No. 24/06, as amended – “ZUP”).
[6] Minor Offences Act (in Slovenian: Zakon o prekrških, Official Gazette of the Republic of Slovenia, No. 29/11, as amended – “ZP-1”).
[7] Decision of the Supreme Court of the Republic of Slovenia I Up 267/2023 dated 21 February 2024 and Remic, M. in Kovač, P. et al: Inšpekcijski nadzor: razprave, sodna praksa in komentar zakona (Eng. Inspection: Discussions, Case Law and Commentary on the Act), Official Gazette of the Republic of Slovenia, Ljubljana, 2016, p. 247.
[8] Cf. Decision of the Supreme Court of the Republic of Slovenia I Up 267/2023 dated 21 February 2024.
