REPUBLIKA SLOVENIJA
USTAVNO SODIŠČE
U-I-32/95
30/6-1995
DECISION
At a session held on 30/6-1995, in a proceeding for assessing constitutionality commenced on the
inititiative of the business company Perne d.o.o., Kranj, the Constitutional Court
reached the following decision:
1. The law on the protection of the environment is in conflict with the Constitution insofar as it does not
regulate the legal position of subjects who have the right to use or exploitation on the basis of valid
legislation, of natural resources owned by the Republic of Slovenia.
2. The law on protection of the environment is in conflict with the Constitution insofar as it does not
regulate the content of the legal institution "locational conditionality of a concession".
3. The Order on the concession for the economic exploitation of spring drinking water from the
Karavanke tunnel is revoked.
4. The National Assembly must remove the established discordance with the Constitution under points
1 and 2 of this Disposition by 1.12.1995.
5. Until the rmeoval of the established discordance with the Constitution under point 1 of the
Disposition, the Government may not commence or continue procedures for awarding concessions for
natural resources to which exist rights of a concessionary character.
Reasoning
A.
1. The initiator lodged an initiative for assessing the legality of articles 10, 15, 16 and 17 of the Order
on the concession for the economic exploitation of spring drinking water from the Karavanke tunnel
(hereinafter: the Order) and an initiative for assessing the constitutionality of the third sentence of the
seventh paragraph of article 21 of the Law on the protection of the environment (hereinafter: ZVO).
The first paragraph of article 10 of the Order is claimed not to be in accordance with point nine of the
third paragraph of article 23 ZVO, because it leaves a decision on price to the concession contract,
and ZVO determines that the concession act must also contain the payment for the concession.
Articles 15,16 and 17 of the Order determin that the cited concession shall be awarded on the basis of
a public call for tenders, which is claimed not to be in accordance with the second sentence of the third
paragraph of article 21 ZVO which excludes a public call for tenders in cases of locational
conditionality, which is said to be so in the present case. It also proposed the restraining of
implemention of article 15, 16 and 17 of the Order.
The initiator further states that ZVO determines in the third sentence of the seventh paragraph of
article 21 that an existing right of a concessionary character is a priority right which does not exclude a
public call for tenders such that the bearer of such a right would again have to apply for the award of
the already obtained right. This is claimed to be in conflict with article 155 of the Constitution.
2. The business company Perne, on the basis of a Consent to the exploitation of drinking water in the
Karavanke tunnel in region 2860-3070m, no. 03/06 of 23.10.1990, which was issued by the Public
Utilities Company Vodovod Jesenice, built a reservoir for drinking water in Jesenice, for which building
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permission was issued on 23.10.1992, and the administrative procedure for obtaining permission for
use is still in progress. In accordance with this procedure, there have been a number of fillings and on
the basis of domestic and international sales contracts, also the placing of this water on the market
under the tradename "JULIANA softened spring drinking water from the source of the Hrušica". After
the validation of ZVO, the business company Perne d.o.o. addressed an application to the Ministry for
the Environment and Planning on interest in the award of a concession for exploiting water from the
mentioned source, and the Government issued a Concession Act which in the opinion of the initiator is
not in accordance with ZVO. It proposes an assessment of ZVO because the complications in the
procedure have been caused by different interpretations of article 21 ZVO. If the expression "locational
conditionality" were better defined, two different interpretations could not ocur.
3. The Government in answer states in relation to the assessment of the legality of the Order that
water is owned by the Republic of Slovenia, so the Republic of Slovenia decides about its exploitation
sovereignly on the basis of law. The business company Perne d.o.o., in the opinion of the
Government, does not because of investment made to date automatically obtain the right to obtain the
concession without a public call for applications, but it is possible to consider that because of this it
has some advantages over other possible potential concession holders. The Consent for the
exploitation of water in the Karavanke tunnel no. 03/06 of 23.10.1990 is in no way annulled and in the
opinion of the Government, the consent still applies. In relation to determining payment, it believes that
ZVO does not determine the contents of a concession act taxanomically. In relation to the locational
conditionality of a concession, the government clarifies that this is the approach in cases when the
natural resource which is the subject of the concession relates to land owned by the potential
concession holder, or when he has some other ownership rights to this land and performs an
economic activity on it. Locational conditionality is not in the opinion of the Government applicable in
the case under consideration.
4. The National Assembly did not answer to the initiative in relation to assessing the constitutionality of
ZVO.
B.
5. At a session held on 30.3.1995, the Constitutional Court accepted the initiative for assessing the
constitutionality of the Order and until the final decision restrained implementation of its articles 15, 16
and 17. It accepted the initiative for assessing the constitutionality of ZVO in accordance with the
fourth paragraph of article 26 of the Constitutional Court Act (Official Gazette RS, no. 15/94,
hereinafter: ZUSTS).
6. The initiator's legal interest in based on the Consent for exploitation drinking water in the Karavanke
tunnel no 03/06, which was issued on 23.10.1990 by Vodovod Jesenice as the authorised body
(article 11 of the Regulations on the care of drinking water in the region of the municipality of Jesenice,
Official Gazette of Gorenjska no. 9/88). In the opinions of the Republican Directorate for the Protection
of the Environment and Water Management of 27.7.1994, the Ministry of the Economy of 18.10.1994
and the Government of 24.3.1995, the Consent is a legally valid administrative decision. The
Constitutional Court also accepts this view. The Consent is a valid administrative decision which
according to its contents gives a right of a concessionary character. Vodovod Jesenice, with the
Consent gave the initiator the exclusive right to exploit water from the Karavanke tunnel.
7. In the case being considered, it is not as the initiator believes the so-called retroactive effect of a
law, since the law is retroactively effective whenever it defines a moment prior to the validation of the
law as the moment of temporal commencement of its use. It is an encroachment into long-term legal
relations, regulated by a legally binding decision which can be abolished, annulled or changed only in
cases and according to procedures determined by law, as is determined by article 158 of the
Constitution.
8. Article 17 ZVO determines that water, mineral deposits, freely redproducing wild animals, fish and
other freely reproducing or free growing water animals and plants are the property of the Republic.
State ownership has replaced the social ownership of natural resources. The consequence of the
transfer of part of the natural resources into state ownership is that a concession is required for their
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use or exploitation on the part of other legal or physical persons, as well as their being an obligation
on the part of the State to produce a balance sheet of the natural resources, to establish both the
actual and legal state in connection with these resources. The State took over ownership of natural
resources with all their burdens and is bound to respect the existing rights of subjects in individual
natural resources. In addition to administrative tasks which relate to the use of natural resources which
the State obtained on the basis of ZVO, with the validation of the Law on state functions taken over
which had been performed until 31.12.1994 by bodies of municipalities (Official Gazette RS, no.
29/95), it also undertook those administrative tasks which had until then been performed by
municipalities on the basis of regional legislation. Legal acts (administrative decisions), from which
derive rights of subjects to the use of natural resources, now bind the State.
9. For legal relations which derive from the cited administrative decisions, until the adoption of new
regional legislation, the applicable provisions of existing regional legislation shall be used. Insofar as
the state decides to award concessions on natural resources, it must behave according to the
provisions of ZVO (concessions) and respect the applicable provisions of regional legislation insofar
as these determine the conditions of use of natural resources which the concession holder will have to
respect. In the procedure of awarding concessions for the use of natural resources, the State is bound
to respect obtained rights. To behave otherwise would be in conflict with article 2 of the Constitution,
which determines that Slovenia is a legal state.
10. ZVO determined a new legal regime for obtaining the right to use, management or exploitation of
natural resources. In the third sentence of the seventh paragraph of article 21 ZVO it is determined
that existing rights of a concessionary nature shall be respected in determining criteria for validating
priority rights. These are held by the owner of the land on which the natural resource is, but he can
validate it in obtaining a concession only on the basis of a public call for applications.
The provision that in determining criteria for validating priority rights, existing rights of a concessionary
character shall also be respected is not entirely clear, especially when there is competititon between
holders of existing rights of a concessionary character and the owner of the land. It derives from these
provisions that a holder of existing rights of a concessionary character must also make application in a
public call for applications.
With the cited provisions, ZVO does not annul their rights, but it does place them in a position, as the
initiator claims, in which they must again apply for rights which have already been recognised with a
legally binding administrative decision. The legislator should have regulated the transfer of existing
rights of a concessionary character into the new legal regime (concessionary relations) in the
transitional provisions. Since ZVO does not regulate the transformation of these relations, there is an
anti-constitutional legal void, which is in conflict with the constitutional principle of a legal state. The
Constitutional Court thus found on the basis of the first paragraph of article 48 ZUstS that ZVO is in
conflict with the Constitution.
11. The legislator is bound to regulate the position of subjects whose right to the use or exploitation of
natural resources is based on valid administrative decisions in accordance with respecting the
principle of a legal state, by 1.12.1995.
12. The Constitutional Court determined the manner of implementing the decision on the basis of the
second paragraph of article 40 ZUstS. The established discordance with the Constitution means that
the Government is bound to respect existing rights of a concessionary character and that it cannot
therefore start or continue procedures for awarding concessions of those natural resources to which
rights of a concessionary character exist until it regulates with law the way of transferring existing
rights of a concessionary character into the legal regime of concessions. Until an appropriate
legislative arrangement of transferring existing rights of a concessionary character into the legal
regime of concessions, the holder of such rights is entitled to the use or exploitation of natural
resources, and the Government is bound to allow its implementation.
13. In relation to the fact that the way of regulating existing rights determined in ZVO is in conflict with
the Constitution, the procedures for granting concessions on natural resources to which exist rights of
a concessionary character are also in conflict with the Constitution. The Constitutional Court therefore
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annulled such procedures of regulating the impugned order on the basis of the second paragraph of
article 45 ZUstS.
14. The Government, as holding responsibility for adminsitrative tasks, is bound to respect existing
rights of use or exploitation of natural resources which are based on a legally binding administrative
decision, and is bound to enable the exercise of these rights.
15. The Order determines in article 15 that concessions to natural resources shall be awarded on the
basis of a public call for applications. Articles 16 and 17 determin the publication and content of the
public call for applications and the time limits for applications. In the opinion of the initiator, the
Government should have to respect the third paragraph of article 21 ZVO, which excludes a public call
for applications whenever this is senseless because of the locational conditionality of the concession.
The legislator determined that concessions be awarded on the basis of a public call for applications,
except when this is senseless because of the locational conditionality (third paragraph of article 21), in
which it did not define this concept or its contents. Since this is a completely new legal institution, the
legislator should have defined its meaning, in order to prevent unclarities and possible different
interpretations. Since it did not do this, because of the legal void created, the impugned law is in
conflict with article 2 of the Constitution which determines that Slovenia is a legal state. The
Constitutional Court determined that the National Assembly is bound to regulate the content of the
legal institution of "location conditionality of a concession" by law, and determined a time limit for this
of 1.12.1995.
C.
The Constitutional Court adopted this resolution on the basis of articles 21 and 48 of the Constitutional
Court Act (Official Gazette RS, no. 15/74), composed of: president Dr. Tone Jerovšek and judges Dr.
Peter Jambrek, Mag. Matevž Krivic, Mag. Janez Snoj, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M.
Zupančič. The resolution was adopted unanimously.
President
Dr. Tone Jerovšek