FOURTH SECTION

DECISION

Application no. 34779/22
CTT – CORREIOS DE PORTUGAL S.A.
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 14 January 2025 as a Committee composed of:

 Tim Eicke, President,
 Ana Maria Guerra Martins,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 34779/22) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 July 2022 by a private-owned company based in Portugal, CTT – Correios de Portugal S.A. (“the applicant company”), which was represented by Ms S. Ribeiro Branco, a lawyer practising in Lisbon;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns alleged unfairness of proceedings instituted against the applicant company for failure to keep a complaints logbook (livro de reclamações) in some of its post office branches or for not making one available whenever requested by customers. It mainly concerns issues under Article 6 § 1 of the Convention.

2.  By a decision of 25 March 2021, the National Authority for Communications (ANACOM), in the context of administrative-offence proceedings (processo contraordenacional), ordered the applicant company to pay a combined administrative fine (coima) of 82,000 euros (EUR) for sixteen counts of breaching its obligation to have a complaints logbook available in some of its post office branches or for not making one available whenever requested by customers, as provided for in Decree no. 74/2017 of 21 June 2017 on complaints logbooks and customer service.

3.  Following an appeal for judicial review lodged by the applicant company on facts and points of law, the Lisbon Competition Court (Tribunal da Concorrência, Regulação e Supervisão) held a hearing in the presence of the applicant company’s representative at which it took evidence from witnesses. On 14 October 2021 it upheld the decision of ANACOM but lowered the total fine to EUR 30,000.

4.  The applicant company challenged that decision before the criminal division of the Lisbon Court of Appeal by means of an appeal on points of law. The applicant company argued in particular that the Lisbon Competition Court had not taken cognisance of the documents it had provided. It also contested the assessment made of the witness evidence. Furthermore, the applicant company challenged technical aspects of the judgment.

5.  By a judgment of 3 February 2022, the Lisbon Court of Appeal, sitting as a three-judge bench, upheld the judgment of the Lisbon Competition Court. It found that the applicant company had had access to a court with full jurisdiction in respect of ANACOM’s decision, in accordance with Article 6 § 1 of the Convention, after submitting its claims documents and evidence from witnesses in support. The Lisbon Court of Appeal noted that those witnesses had been heard by the competition court and that all the evidence and arguments submitted had been analysed. It concluded that the applicant company had benefited from adversarial proceedings and that the competition court’s interpretation of the law was correct.

6.  One of the three judges on the Court of Appeal’s bench, however, gave a dissenting opinion, expressing the view that the clients who had wanted to use the complaints logbook should have been heard as witnesses.

7.  The applicant company raised objections of nullity regarding the Lisbon Court of Appeal’s judgment (see paragraph 5 above), which were dismissed by a judgment of that court of 10 March 2022.

8.  The applicant company lodged an appeal with the Constitutional Court, disputing the limited jurisdiction of the Court of Appeal in administrative‑offence proceedings such as the present one, primarily in the face of a manifest error in the assessment of the evidence by the first-instance court. On 18 March 2022 the appeal was rejected by a summary decision, on the grounds that the Lisbon Court of Appeal’s judgment had stated that it had not found any ostensible error in the assessment of the evidence.

9.  Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant company complained of unfairness in the proceedings, in particular the lack of impartiality of the Lisbon Competition Court. It also claimed that it had not had access to a court of full jurisdiction in the administrative proceedings brought against it, in breach of its right to an effective remedy guaranteed by Article 13 of the Convention.

THE COURT’S ASSESSMENT

10.  The Court does not consider it necessary to examine whether the applicant company has locus standi under Article 34 of the Convention (see, Slovenia v. Croatia (dec.) [GC], no. 54155/16, §§ 61-62 and 78, 18 November 2020) given that its complaints are in any case inadmissible for the reasons set out below.

11.  The Court notes that the applicant company’s complaint brought under Article 6 §§ 1 and 3 (d) of the Convention concerning the alleged lack of impartiality of the Lisbon Competition Court (see paragraph 9 above) was not put forward by the applicant company before the Lisbon Court of Appeal (see paragraph 4 above) or any other domestic authority (see paragraphs 7 and 8 above). It follows that in so far as this complaint is concerned, domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. This complaint must therefore be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

12.  The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaint raised by the applicant company under Article 13 of the Convention (see paragraph 9 above) only from the standpoint of Article 6 § 1 of the Convention (right of access to a court).

13.  The Court reiterates its established case-law, to the effect that in ascertaining whether there was a “criminal charge”, regard must be had to three criteria commonly known as the Engel criteria – the legal classification of the offence under national law, the very nature of the offence, and the nature and degree of severity of the penalty that the person concerned risks incurring (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22, and Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, §§ 75-83, 22 December 2020).

14.  In the present case the conduct that the applicant company was accused of was classified as “administrative” under the relevant legislation (see paragraphs 1 and 2 above). As to the nature of the offence, the provisions at issue were intended to guarantee the protection of consumers’ rights, a matter usually protected by civil and administrative law. Nevertheless, the criminal division of the Lisbon Court of Appeal accepted jurisdiction in relation to the appeal on points of law at the domestic level (see paragraph 4 above). Furthermore, the Court considers that the fines imposed were essentially punitive, in order to prevent reoffending, and, given their amount, they were of undeniable severity.

15.  In the light of the above, the Court considers that the proceedings in which the applicant company was fined concerned the determination of a “criminal charge”, rendering Article 6 of the Convention applicable (compare A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, § 44, 27 September 2011; Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 101, 4 March 2014; Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia, no. 47072/15, §§ 45-46, 23 October 2018; and, by way of example, Meo ‑ Serviços de Comunicações e Multimédia S.A. v. Portugal (dec.) [Committee], nos. 22936/16 and 52347/16, § 15, 28 March 2023).

16.  The general principles concerning the right to a review by a “judicial body that has full jurisdiction” of any decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6 § 1 of the Convention have been summarised in Schmautzer v. Austria (23 October 1995, § 36, Series A no. 328-A); Gradinger v. Austria (23 October 1995, § 44, Series A no. 328-C); A. Menarini Diagnostics S.R.L. (cited above, §§ 63-67); and Grande Stevens and Others (cited above, § 139).

17.  According to the case-law cited above, the defining characteristics of a “judicial body that has full jurisdiction” include the power to quash in all respects, on questions of fact and law, the decision of the body below. In the present case, the applicant company had access to two levels of judicial jurisdiction. The Lisbon Competition Court had jurisdiction to examine all questions of fact and law relevant to the dispute before it, whereas the Lisbon Court of Appeal was limited to reviewing points of law concerning the judgment delivered by the Lisbon Competition Court (see paragraphs 3 and 4 above).

18.  As to the extent of the review carried out by the domestic courts, the Court notes that the applicant company was able to submit its arguments and provide evidence, in particular documents and witnesses in its appeal against ANACOM’s decision before the Lisbon Competition Court, which then held a public hearing and took evidence from these witnesses. Furthermore, that court analysed the applicant company’s arguments and gave reasons for its judgment, which do not appear unreasonable, arbitrary or inconsistent with the principles underlying the Convention. Moreover, the Lisbon Competition Court assessed the proportionality of the sanction and lowered the global fine to EUR 30,000 (see paragraphs 3 and 5 above, and compare European Air Transport Leipzig GmbH v. Belgium, nos. 1269/13 and 4 others, § 64, 11 July 2023).

19.  In view of the above, the Court considers that the Lisbon Competition Court was indeed a “body with full jurisdiction” with the power to quash on questions of fact and law ANACOM’s decision, thus justifying the fact that the second-instance court was limited to a review on points of law. The extent of the review carried out by the domestic courts, at two levels of jurisdiction, was sufficient.

20.  In view of the foregoing consideration, the Court finds that the complaint concerning the lack of access to a court with full jurisdiction under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 February 2025.

 Simeon Petrovski Tim Eicke
 Deputy Registrar President