Slika prikazuje detajl in sicer del lesenega stebra.

Number: U-I-474/18
Date: 15 December 2020

Decision of the Constitutional Court No. U-I-474/18, dated 10 December 2020

Upon the request of the National Council, the Constitutional Court reviewed the provisions of the Public Finance Act (hereinafter referred to as the PFA) that regulate (1) the inclusion of the proposed financial plans of direct budget users in the draft of the state budget; (2) measures to balance the budget during a fiscal year; (3) the inspection supervision carried out by the Ministry of Finance over the implementation of the PFA and other public finance regulations by non-governmental users; and (4) the authorisation of the Minister of Finance to issue detailed instructions regarding the end of the fiscal year for the central and local government budgets no later than by 30 September of the current year, insofar as these provisions refer to the National Council, the Constitutional Court, the Court of Audit, and the Human Rights Ombudsman.

It established that these are constitutionally determined authorities that are ensured by the Constitution an autonomous and independent position, an element of which is financial (i.e. budgetary) independence. This independence is (inter alia) ensured by these authorities proposing to the National Assembly by themselves the determination of an appropriate amount of funds in the state budget for their effective and undisturbed operation, such that they independently decide on the expenditure of the allocated funds, and such that the expenditure of these funds is supervised by another – equally autonomous and independent – authority such as the Court of Audit, which is independent of state power. The Constitutional Court established that it does not follow from the Constitution that influence by the executive power on the financial independence of autonomous and independent constitutional authorities is admissible, which entails that the amount of funds for the operation of these authorities must not depend on the Government but only on the National Assembly, which is the general representative authority. In order for these independent constitutional authorities to be able to exercise their constitutional role, in the procedure for drafting the state budget adopted by the National Assembly they must have a position that is constitutionally equivalent to that of the Government.

The Constitutional Court concluded that Article 20 of the PFA, which enables the Government to request that necessary alignments of proposed financial plans submitted by independent constitutional authorities be carried out and requires these authorities to align their proposals with those of the Government, causes them to yield to the will of the line ministry, which is part of the executive power. Since this Article interferes with the right of independent constitutional authorities to formulate a proposal regarding the funds necessary for their operation independently of the Government, it establishes their financial dependence on the executive power. In the assessment of the Constitutional Court, this finding cannot be changed by the fact that while the Government by itself formally proposes a different financial plan for independent constitutional authorities, it includes the proposal submitted by these constitutional authorities in the reasoning of [its own] draft state budget. In this respect, the Constitutional Court stressed that the financial independence of autonomous and independent constitutional authorities does not entail that in the procedure for including proposed financial plans in the draft state budget the Government or the competent ministry thereof should not be allowed to warn the independent constitutional authorities of possible departures from the fundamental economic starting points for drafting a budget in their financial plans. Namely, in order for the state power as a whole to be able to operate, it is necessary for the authorities in different branches of power to cooperate, as it is also necessary for the Government and the other independent constitutional authorities to cooperate. However, the Government must not require independent constitutional authorities to submit to its policies and interests when drafting the budget. Therefore, the Constitutional Court decided that Article 20 of the PFA, insofar as it refers to the National Council and the Constitutional Court, is inconsistent with the second sentence of the second paragraph of Article 3 of the Constitution, that insofar as it refers to the Human Rights Ombudsman, it is inconsistent with the first sentence of Article 159 of the Constitution, and that insofar as it refers to the Court of Audit, it is inconsistent with the third paragraph of Article 150 of the Constitution.

As regards the measures to balance the budget during a budget year (Article 40 of the PFA), the Constitutional Court established that the provisions intended for the adoption of urgent temporary measures by the executive power in the event of significant imbalances in the budget caused by unforeseen events (the first and the third through seventh paragraphs of Article 40 of the PFA) merely provide for temporary measures with a strictly determined time of validity that apply equally to all direct budget users, with regard to which the measures are to be determined in cooperation therewith, i.e. also in cooperation with the constitutional authorities that are independent of the Government. Therefore, such regulation does not reduce the financial independence of the autonomous and independent constitutional authorities, which are also independent of the Government. Conversely, the provision that allows the Government to also determine that under conditions involving the temporary suspension of individual expenditures direct budget users must obtain the prior consent of the Ministry of Finance to enter into any contract (the second paragraph of Article 40 of the PFA) – i.e. independent constitutional authorities as well – prevents the National Council, the Constitutional Court, the Human Rights Ombudsman, and the Court of Audit from determining by themselves the use of funds for their operations provided from the state budget. This authorisation allows the executive power to intensively and inadmissibly interfere with the work of the autonomous and independent constitutional authorities; therefore, insofar as the authorisation refers thereto, it is inconsistent with the constitutionally guaranteed financial independence of these authorities.

In the assessment of the Constitutional Court, observance of the financial independence of the National Council, the Constitutional Court, the Human Rights Ombudsman, and the Court of Audit can only be ensured by a regulation determining supervision over the expenditure of budgetary funds that is performed by an autonomous and independent state authority, or, insofar as the Court of Audit is concerned, by an institution independent of state power. The statutory regulation that authorises public officials of the Ministry of Finance to carry out that ask (Article 103 in conjunction with the first and second paragraphs of Article 102 of the PFA) does not meet that requirement and is thus unconstitutional.

The Constitutional Court also established that neither the first paragraph of Article 95 of the PFA, which authorises the Minister of Finance to adopt rules annually regarding the end of the implementation of the state and local government budgets for an individual fiscal year, nor any other provision of the PFA includes any framework or guideline for the issuance of more detailed implementing regulations by the Minister of Finance. Therefore, the Constitutional Court decided that the first paragraph of Article 95 of the PFA, to the extent to which it was subject to [constitutional] review, is inconsistent with the second paragraph of Article 120 of the Constitution.