Constitutional Court
Statistical data: 1 January 1997 - 30 April 1997
Number of decisions
The Constitutional Court had 12 (plenary) sessions during this period,
in which it dealt with 141 cases in the field of protection of constitutionality
and legality (cases denoted U- in the Constitutional Court Register) and
with 39 cases in the field of protection of human rights and basic freedoms
(cases denoted Up- in the Constitutional Court Register and submitted to
the plenary session of the Court; other Up- cases were processed by chambers
of three judges at sessions closed to the public). There were 295 U- and
343 Up- unresolved cases from the previous year at the start of the period
(1 January 1997). The Constitutional Court accepted 121 U- and 138 Up-new
cases in the period covered by this report.
In the same period, the Constitutional Court resolved:
Important decisions
Identification: SLO-1997-1 -001
a) Slovenia / b) Constitutional Court / c) / d) 09.01.1997 / e) U-l-23/96
/ f) / g) Uradni list RS (Official Gazette), no. 5/97; Odiocbe in sklepi
Ustavnega sod/sea (Official Digest of the Constitutional Court), VI, 1997
/ h) Pravna praksa, Ljubljana, Slovenia (abstract).
Keywords of the systematic thesaurus:
General Principles - Separation of powers.
General Principles - Legality.
Institutions - Legislative bodies - Relations with the executive
bodies.
Institutions - Executive bodies - Application of laws - Delegated
rule-making powers.
Institutions - Public finances - Taxation - Principles.
Keywords of the alphabetical index:
Tax, sales tax on services / Regulating statutory matters by executive
regulation / Implementing statute by executive regulation.
Headnotes:
In view of the Constitution and the provisions of the Sales Tax Act,
the obligation to pay tax on trade in services may be introduced only by
statute. Rules, as executive regulations, must be in compliance with the
Constitution and may not contain provisions for which there is no statutory
basis, in particular they may not independently determine rights and obligations
such as the introduction of an obligation to pay sales tax.
Summary:
The first paragraph of Article 34. b of the Regulations on the use
of the Sales Tax Act was severed.
Article 147 of the Constitution determines that the State shall prescribe
taxes, customs and other levies by statute.
The ZPD (Sales Tax Act) regulates the sales tax system and introduces
obligations to pay tax on trade in products and tax on trade in services
(Article 1), and determines tax levels and the sales tax tariffs on products
and services on which sales tax is levied. The tariff is an integral part
of the Act (Article 2).
In the framework of provisions regulating the obligation to pay tax
on the sale of services, Article 23 of the ZPD prescribes general tax bases
for all kinds of service. Under these statutory provisions, the basis for
tax on the sale of services is the amount paid for performing the service,
which does not include tax on the sale of services paid in money or in
kind or in return for other services (first paragraph, which considers
the amount of payment as the entire gross payment), which also includes
necessary expenses (cost of materials and other services) that the provider
of the service bore in connection with providing the service and with which
he charges the user of the service, unless the Act provides otherwise (Article
23.2). Article 24 enumerates eleven cases in which the tax basis is determined
otherwise. Under the provisions of point 3 of Article 24, the tax basis
on the sale of services for agency, mediation, representation and commission
services is the commission in addition to other payments earned.
The provision of the impugned first paragraph of Article 34.b of the
Regulations, referring to point 3 of the first paragraph of Article 24
of the ZPD, adopts the statutory definition of tax basis for the calculation
or payment of sales tax on agency, mediation, representation and commission
services, so that for determining the tax basis at the level of the commission
or other payment it adds two conditions:
- the person ordering the agency, mediation, representation or commission
services must be aware of the level of commission and
- the commission must be clear from the account rendered.
As the claimant properly noted, in relation to the statutory arrangement,
the conditions cited raise the statute-determined tax bases to the level
of "the amount paid for performing the service" as the "entire gross payment"
under the first paragraph of Article 23 ZPD for the calculation and payment
of sales tax for all tax payers who have received higher payments than
the amount of the commission in connection with agency, mediation, representation
or commission services, and who do not meet the above conditions, with
the result that their tax burden is increased.
Executive regulations must comply with the Constitution and statutory
law and may not themselves contain provisions for which there is no statutory
basis; in particular they may not independently determine rights and obligations
such as an obligation to pay sales tax.
Under Article 120.2 of the Constitution, administrative bodies are
bound in their work, which also involves the issuing of regulations within
their jurisdiction, by the framework defined by the Constitution and statutory
law, and especially to constitutional and legal foundations (the principle
of legality), and they do not have the right to issue regulations without
relevant legal basis. The principle of the separation of powers, and the
obligation of administrative bodies to remain within the framework determined
by the Constitution and statutory law, excludes the possibility for administrative
bodies to adopt or regulate statutory matters independently.
Supplementary information:
Legal norms referred to:
Articles 3, 120, 147 of the Constitution.
Articles 1, 2, 23, 24, 79 of the Sales Tax Act (ZPD).
Articles 26,45.3 of the Constitutional Court Act (ZUstS).
Cross-references:
In its reasoning, the Constitutional Court refers to its cases no.
U-l-38/95 (OdIUS IV, 64), Bulletin 1995/2 [SLO-1995-2-010] and no. U-l-73/94
(OdIUS IV, 51).
Languages: Slovene, English (translation by the Court).
Identification: SLO-1997-1 -002
a) Slovenia / b) Constitutional Court / c) / d) 16.01.1997 / e) U-l-273/96
/ f) / g) Uradni list RS (Official Gazette), no. 13/97; Odiocbe in sklepi
Ustavnega sodisca (Official Digest of the Constitutional Court), VI, 1997/h)
Pravna praksa, Ljubljana, Slovenia (abstract).
Keywords of the systematic thesaurus:
General Principles - Rule of law - Public interest.
General Principles - Proportionality.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Economic, social and cultural rights -
Commercial and industrial freedom.
Keywords of the alphabetical index:
Freedom of enterprise, restriction / Public benefit / Medicinal products,
trade / Educational background, responsible person.
Headnotes:
The provision in the Constitution on free enterprise protects individual
freedom and at the same time allows the legislature to prescribe special
restrictive conditions with respect to the carrying out of specific activities
to ensure the protection of public benefits.
Restrictions on the freedom of involvement in business activities are
justified if they are indispensable for the safeguarding of public benefits
and if a measure selected interferes as little as possible with the freedom
of enterprise. Restrictions can be subjective (educational background,
experience, personality characteristics etc.) or objective in nature (equipment,
procedures etc.), and in this respect the constitutional principle of proportionality
of measures designed to safeguard public benefits applies. The measure
must be one that protects public benefits against obvious or highly probable
damage or risk, which cannot be prevented by any less restrictive measure.
The safeguarding of public benefits is indispensable, particularly where
the health and life of humans are at risk. Wholesale trade in medicinal
products is also comprised in this category, thus the measure introduced
by the present statute is not in conflict with the Constitution.
Summary:
The Court rejected an application contesting the constitutionality
of Article 64.1.2 of the ZZdr (Medicinal Products Act).
Under Article 74 of the Constitution, free enterprise shall be guaranteed.
The establishment of businesses must be regulated by statute. The Constitution
also provides that business activities in conflict with public interest
may not be pursued. An extremely liberal understanding of entrepreneurship
would not be in conformity with the Constitution, therefore the legislature
may restrict certain forms of business (monopolies, cartels); and if such
a measure is in the public interest (human health and life, protection
of nature, consumers, employees etc.), it may impose special subjective
and/or objective conditions with respect to some business activities. The
imposition of special conditions with a view to protecting important general
assets and rights of others is also in conformity with Article 15.3 of
the Constitution.
Thus, constitutional rights may be restricted by statute if the legislature
has established, on the balance of public interests and individual rights,
that the restriction is indispensable. In enacting a restriction, the legislature
must choose a measure which will ensure the effective protection of public
benefits and which will, in the given circumstances, interfere as little
as possible with constitutionally guaranteed rights. A measure employed
by the legislature for the purpose of restricting constitu-tional rights
in the public interest must be proportionate with the interference with
the constitutional rights. For these may be interfered with only to the
extent which is indispensable to ensure special protection. A measure introduced
by the legislature to restrict a constitutional right is justified if,
from the nature of the particular activity, it follows that the activity
requires specific knowledge, skills and personality characteristics for
it to be carried out, without which harmful consequences or a hazardous
situation could result for the buyer of the goods manufactured or supplied.
Therefore the operators of some activities must normally meet certain conditions
in order to carry out these activities. This is true for health care and
pharmacy activities. The rate of social development and knew findings (new
substances, environmental protection, safety as regards legal transactions,
etc.), however, demand that the legislature extend the prescribing of conditions
also to other activities. In this respect, the legislature must, on the
basis of forecasts and probability judgements, formulate the restricting
provision so that it will be tailored to actual requirements and circumstances.
Such restricting provisions as have been enacted in the public interest
must be appropriate from an objective viewpoint and tailored to the aim
pursued in accordance with the principles of a social state governed by
the rule of law (Article 2 of the Constitution).
By the disputed provision the legislature has prescribed that legal
entities and natural persons engaging in the wholesale of medicinal products
must appoint a person responsible for the receipt and dispatching of medicinal
products and the examination of documents. Such person must have in addition
to a Bachelor of Science degree in pharmacy, also completed specialisation
studies in the field of the testing of medicinal products. The Constitutional
Court agrees with the applicant that the disputed part of Article 64 of
the ZZdr enacts a restriction imposing conditions relating to the carrying
out of business operations of legal entities and natural persons, wholesale
traders in medicinal products, but it finds that the statutory restriction
is not in conflict with the Constitution. For it is in the public interest
for the manufacture of and trade in medicinal products to be organised
in such a way as to ensure the safety of consumers of medicinal products.
The trade in medicinal products is a primarily pharmaceutical activity,
and the freedom of trade is essentially subordinated to safety in pharmaceutical
activities. The Constitutional Court considers that the condition - that
traders engaging in the wholesale of medicinal products must appoint a
person responsible for the testing of medicinal products -has been enacted
in conformity with the nature of medicinal products, because such goods
could be dangerous to human health and life. The enacted measure would
reduce to the minimum the possibility of damage occurring as a result of
the use of medicinal products.
Supplementary information:
Legal norms referred to:
Articles 2, 15, 74 of the Constitution. Articles 26, 21 of the Constitutional
Court Act (ZUstS).
Languages: Slovene, English (translation by the Court).
Identification: SLO-1997-1 -003
a) Slovenia/b) Constitutional Court/c)/cf) 30.01.1997 /e) U-M 39/94
/f)/g) Uradni list RS (Official Gazette), no. 10/97; Odiocbe in sklepi
Ustavnega sodisca (Official Digest of the Constitutional Court), VI, 1997/h)
Pravna praksa, Ljubljana, Slovenia (abstract).
Keywords of the systematic thesaurus:
General Principles - Proportionality.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights – Right to private
life.
Fundamental Rights - Civil and political rights - Non-retrospective
effect of law.
Fundamental Rights - Economic, social and cultural rights -
Freedom to choose one's profession.
Keywords of the alphabetical index:
Personal data, protection / Detective activities, conditions for issuance
of a license / Constitutional Court, review of appropriateness of a statutory
provision / Competition clause.
Headnotes:
Statutory provisions are not in conflict with the Constitution:
- when among conditions for the issuance of a license for detective
work they require inter alia that during the two preceding years the applicant
should not have carried out the tasks of a public law enforcement official
of the Ministry of the Interior or of intelligence and security agencies;
- when they require firms registered for carrying out detective work
to obtain the relevant licenses also for its employees who have previously
engaged in such activity.
Summary:
The Court stated that Article 8.1.4 and Article 29 of the ZDD (Detectives'
Activities Act) are not in conflict with the Constitution.
The contested provision in Article 8 of the ZDD provides that, to be
able to carry out detective work, a detective must have the requisite license,
which may be issued by the relevant Chamber upon request, inter alia if
during the two preceding years the applicant has not carried out the tasks
of a public law enforcement official of the Ministry of the Interior or
of intelligence and security agencies. Such provision restricts the freedom
of work granted in Article 49 of the Constitution.
The freedom of work as defined in Article 49 may be exercised directly
on the basis of the Constitution in accordance with Article 15 of the Constitution.
Under Article 15.3 of the Constitution, human rights and fundamental freedoms
shall only be limited by the rights of others and in cases determined by
the Constitution. As the Constitution does not expressly mention a possibility
for the freedom of work under Article 49 of the Constitution to be limited
by statute, the Constitution only allows the restriction of this right
for reasons of protection of the rights of others.
Such restriction is only permissible in observance of the principle
of proportionality, according to which such a measure must be:
a. adequate for the constitutionally admissible legislative aim
to be attained;
b. indispensable, meaning that the said aim is not attainable by a
less restrictive measure; and
c. proportionate on the weighing-up of one constitutional right
against another.
The first question which arises is what rights of other persons in
the instant case require protection by way of limitation. Although this
has neither been specified by the applicants nor by the National Assembly,
at least two constitutional rights can be identified as having been interfered
with: the right to privacy and personal rights under Article 35 of the
Constitution, and the right to the protection of personal data under Article
38 of the Constitution. Individuals who carry out the tasks of public law
enforcement officials come into possession of information related to personal
status and relations, frequently also by the use of special methods and
techniques which are determined by the Constitution and statute as admissible
interference with the right to privacy and with some other rights (inviolability
of the home, privacy of correspondence) when this is in the public interest.
The use of such information in performing the work of private detective,
however, constitutes an absolutely inadmissible interference with the right
to privacy and with personal rights. The same also applies to the protection
of personal data, because in carrying out their work public law enforcement
officials come into possession of information in personal data files, which
is permissible if it is in the public interest but not so when used in
the work of a private detective.
The disputed provision of the ZDD prohibits former public law enforcement
officials from carrying out private detective work anywhere in Slovenia.
This prohibition in fact leads to the proscription of the use for detective
work of information and contacts obtained or established during one's former
employment.
Such a measure is also indispensable, since there is no other way to
achieve the desired objective. It would be impossible to implement and
verify a more prohibition against the use by private detectives of information
and contacts acquired in the course of their former employ-ment as a law
enforcement officer. It is quite logical to expect that a private detective
will use all the skills and knowledge at his or her disposal in the course
of performing his or her work, therefore the use of information and contacts
from previous employment can be prevented only by prohibiting him or her
from being involved in such activity for a certain period of time after
which the information and contacts will have become obsolete and therefore
of little or no use.
This measure is also in compliance with the requirement of proportionality.
The right to the protection of privacy and of personal rights, as well
as the right to the protection of personal data, are important constitutional
rights. The violation of these rights, which may occur in the course of
detective work using information and contacts acquired during previous
employment, can be quite serious. The mere possibility of a serious violation
of these rights is proportionate with limiting the freedom of work of former
law enforcement officials. This limitation is only temporary, two years
being the shortest possible period of limitation for it to be effective,
following which former public law enforcement officials can obtain a license
for carrying out detective work.
The disputed Article 29 of the ZDD requires firms already registered
for carrying out detective work to obtain relevant licenses also for those
employees who are already engaged in such activity. As already decided
by the Constitutional Court in the case U-l-67/95 (OdIUS V, 38), if a law
or regulation sets conditions for carrying out an activity, this does not
imply the retrospective effect of this law or regulation even if it requires
that the said conditions be fulfilled also by persons who have carried
out such activity at the moment of the law or regulation coming into force.
This is particularly the case when the statute provides a reasonable time
period to fulfil such conditions, such as the one-year period in the present
case undoubtedly is.
Supplementary information:
Legal norms referred to:
Articles 15, 35, 38, 49 of the Constitution.
Articles 23, 24, 26, 40 of the Constitutional Court Act
(ZUstS).
Cross-references:
In stating the reasons for this Decision the Constitutional Court refers
to its decisions U-l-201/93 of 07.03.1996 (OdIUS V, 7) and U-l-51/90 of
14.05.1992 (OdIUSS I, 33).
For reasons of joint consideration and adjudication, the Constitutional
Court decided by ruling of 18.01.1996 to join the case U-l-65/95 to the
case under consideration.
Languages:
Slovene, English (translation by the Court).
Identification: SLO-1997-1 -004
a) Slovenia / b) Constitutional Court / c) / d) 30.01.1997 / e) U-l-304/95
If) I Q) Uradni list RS (Official Gazette), no. 11/97; Odiocbe in sklepi
Ustavnega sodisca (Official Digest of the Constitutional Court), VI, 1997
/ h) Pravna praksa, Ljubljana, Slovenia (abstract).
Keywords of the systematic thesaurus:
Institutions - Executive bodies-Territorial administrative decentralisation
- Municipalities.
Institutions - Army and police forces - Army.
Fundamental Rights - Civil and political rights -Non-retrospective
effect of law - Civil law.
Fundamental Rights - Civil and political rights - Right to property
- Nationalisation.
Keywords of the alphabetical index:
Municipality, constitutional position / Property, public / Defence,
national / Municipal assets, nationalisation.
Headnotes:
Under the new social order, the field of defence is entirely within
the competence of the State, therefore it is understandable and not contrary
to the Constitution for the legislature, which is responsible for the transformation
of socially-owned property into public or other forms of property, to have
transferred weapons and equipment that previously belonged to certain municipal
bodies to the Ministry of Defence thereby transferring their ownership
to the State. By so doing the legislature did not undermine the constitutional
position of municipality, since the latter has no competencies in the field
of defense. Since the transfer and nationalisation of property have only
been in force from the effective date of the relevant statute, the prohibition
against the retrospective effect of statutory law has not been infringed.
Summary:
Article 110.1 and Article 110.2 of the Defence Act are not in conflict
with the Constitution.
Article 5 of the Enabling Statute for the Implementation of the Constitution
of the Republic of Slovenia envisage the interim role of municipalities
in defence matters pending the implementation of the Constitution and the
gradual transfer of competencies from the municipality to the State. In
accordance with the Defence and Protection Act, municipalities were then
responsible for organising, securing and financing much of the Republic
of Slovenia's defence system under instructions from the Republic authority
competent for defence matters in accordance with Article 5 of the Enabling
Statute. The contested provisions of the Defence Act affect those defence
matters for which part the municipalities were responsible, i.e. weapons,
equipment, records and documentation of liaison units and information centres
among others.
In so far as each individual municipality had secured the weapons and
equipment for the purposes covered by both disputed provisions already
prior to the proclamation of the Constitution of the Republic of Slovenia,
those goods were socially-owned property managed by a municipality, and,
it is for this reason if for nothing else, that one cannot speak of the
municipal property or of a municipality as having been deprived of property
rights with regard to those goods. As the new constitutional system no
longer recognises socially-owned property, the task of the legislature
is to assign by statute an appropriate owner to each particular part of
socially-owned property. In doing so the legislature must ensure, when
the ownership of goods intended for public use is concerned, interalia
the continuity and good husbandry in the management of specific tasks of
the State. The disputed Article 109.2 assigned to an owner the above-mentioned
part of socially-owned property - this being a matter falling within the
competence of the legislature; as the new constitutional system has made
defense a matter which is entirely within the competence of the State,
the selection of the owner is also in conformity with the Constitution.
With the coming into force of the Defence Act, defense matters came
entirely within the competence of the State (Article 3.5 of the Act), including
the tasks (and employees, Article 111) where (or by whom) the items under
the disputed provisions were used. In accordance with the legal nature
of public property, public property assigned for specific tasks follows
such tasks, and the competence for using and managing such specific part
of public property is also transferred together with such tasks.
The measure envisaged by the disputed provisions does not interfere
with the constitutional position of municipality, because, in accordance
with the Constitution, new municipalities as local self-government units
do not have any such tasks or powers, the implementation of which could
be hindered by the disputed provisions.
Supplementary information:
Legal norms referred to:
Article 5 of the Enabling Statute for the Implementation
of the Constitution (UZIU).
Articles 21, 23 of the Constitutional Court Act (ZUstS).
Languages: Slovene, English (translation by the
Court).
Identification: SLO-1997-1 -005
a) Slovenia / b) Constitutional Court / c) / d) 06.02.1997 / e) U-l-322/96
/ f) / g) Uradni list RS (Official Gazette), no. 11 /97; Odiocbe in sklepi
Ustavnega sodisca (Official Digest of the Constitutional Court), VI, 1997
/ h) Pravna praksa, Ljubljana, Slovenia (abstract).
Keywords of the systematic thesaurus:
General Principles - Rule of law - Certainty of the law.
Institutions - Executive bodies - Territorial administrative
decentralisation - Municipalities.
Institutions - Public finances - Taxation - Principles.
Fundamental Rights - Civil and political rights -Non-retrospective
effect of law - Taxation law.
Keywords of the alphabetical index:
Local government regulation, retrospective effect / Ordinance of an
Urban Municipality / Property tax / Acquired rights.
Headnotes:
A local government ordinance which imposes an increase in property
tax applying to a period prior to its coming into force conflicts with
the constitutional prohibition of retrospective effect of legal acts.
Summary:
The provision in Article 2 of the Ordinance on Property Tax in Celje
Urban Municipality, which reads: "and shall be applied starting with 1
January 1996" shall be severed ab initio.
The disputed Article provides that the Ordinance shall come into force
on the first day following the date of its publication in the Official
Gazette, that is, on 8 June 1996, and shall apply from 1 January 1996.
On 3 December 1996 the Municipal Council of Celje Urban Municipality passed
an Ordinance on amendments and supplements to the Ordinance on property
tax in Celje Urban Municipality (Official Gazette, no. 75/96, which was
published on 20 December 1996 - hereinafter: "the amending Ordinance"),
by which Article 1 of the disputed Ordinance was amended. The amending
Ordinance came into force 8 days after its publication in the Official
Gazette, and its application was to commence on 1 January 1997. However,
with this ordinance the Municipal Council of Celje Urban Municipality did
not repeal ab initio the provision of the disputed Ordinance which dealt
with its application. With the amending Ordinance, the Municipal Council
of Celje Urban Municipality modified only Article 1 of the disputed Ordinance
(which is not contested by the applicant), and set as the date of commencement
of application a time period following the date of its coming into force,
which is in conformity with Article 155.1 of the Constitution.
According to Article 155.1 of the Constitution, no statute, regulation
or other legislative measure shall be interpreted as having retrospective
effect. The fact that the disputed Ordinance came into force on 8 June
1996, and that its application started from 1 January 1996, means that
property tax was increased not only prospectively, from its coming into
force, but also retrospectively.
The prohibition of retrospective effect is one of the basic concrete
realisations of the constitutional principle of a state governed by the
rule of law (Article 2 of the Constitution). Legal certainty does not exist
if one cannot trust the law in force and if one cannot rely on laws and
regulations in force. Everybody has the right to trust in the law in force
and to direct his or her acts and expectations in conformity with the law
in force. A regulation which increases obligations retrospectively weakens
such trust and thus decreases legal certainty. Retroactive effect, it is
true, is allowed in exceptional cases, but is reserved just for statute,
if the latter provides that a specific provision of it shall have retrospective
effect, but only if this is in the public interest and provided that no
acquired rights are thereby infringed (Article 155.2 of the Constitution).
Consequently, local government regulations can never have retrospective
effect.
This decision of the Constitutional Court repeals ab initio the disputed
portion of Article 2 of the Ordinance and in so far as it had retrospective
effect, that is, solely with respect to the period of interference of the
regulation with the past, and in the said period, solely in reference to
the difference represented by the increase in property tax. Those who suffered
a loss or disadvantage on the basis of the repealed provision may, in accordance
with Article 46 of the Constitutional Court Act (ZUstS), request restoration
of the former position.
Supplementary information:
Legal norms referred to:
Articles 2, 155 of the Constitution.
Articles 24, 26, 45, 46 of the Constitutional Court Act
(ZUstS).
Languages: Slovene, English (translation by the
Court).