U-I-208/99

Reference no.:
U-I-208/99
Objavljeno:
Official Gazette RS, No. 6/2000, Official Gazette RS, No. 12/01 and OdlUS X, 11 | 19.01.2001
ECLI:
ECLI:SI:USRS:2001:U.I.208.99
Act:
Act on Conclusion of Ownership Transformation and Privatization of Legal Entities Owned by the Slovenian Development Corporation (Official Gazette RS, No. 30/98) (ZZLPPO), Arts. 6, 13.2, 18, 19, 20, 27, 51.1 and 11, 63
Operative provisions:
Arts. 6, 13.2, 18, 19, 20 and 27, 51.1 and 11 and 63 of the Act on Conclusion of Ownership Transformation and Privatization of Legal Entities Owned by the Slovenian Development (Official Gazette RS, No. 30/98) are not inconsistent with the Constitution. Art. 51. 4 and 9 of the same Act are inconsistent with the Constitution for the reasons determined in the reasoning of this decision. The National Assembly must remedy the inconsistency determined in the previous indent within six months from the publication of this decision in the Official Gazette of the Republic of Slovenia. Until the remedying of the unconstitutionality determined in Indent 2 of the disposition of this decision, the optional time limit determined in Art. 51.9 of the same Act cannot begin to run.
Abstract:
There is no conflict of rights in the case of property for which there exists no duty of return. Thus, the petitioners substantially refer to the anticipation that the resources will remain among the resources of the legal entity and that the owners of the company will be able to privatize also that part of the property for which it will be subsequently determined that its return to denationalization claimants is denied.

Art. 20 of the Ownership Transformation of Companies Act (hereinafter ZLPP) has regulated time limits for the implementation of the ownership transformation of a company.

This provision could be relevant concerning the question of separated resources only if their subsequent privatization meant also the ownership transformation of the company. Since the text of this provision referred to the owners of the company, the only logical interpretation is that the regulation determined in Art. 13.3 was not bound by the time limit for ownership transformation determined in Art. 20 of ZLPP.

Concerning the fact that ZLPP has not made it possible for privatization claimants to privatize property, i.e. to acquire the ownership right to company resources, also Art. 13.3 could not mean the ownership transformation of property in such a manner. Since the ownership transformation of the company has already been completed, also the privatization of these resources following the company's ownership transformation procedure is no longer possible. The previous regulation was thus non-achievable in that part in which it did not determine an appropriate manner of the privatization of separated resources in cases in which the ownership transformation of the company had already been completed. The legislature had thus a legitimate reason to change and accommodate a manner of the subsequent privatization of property to the new regulation of conclusion of ownership transformation.

Merely by determining that separated property (either resources or capital) becomes the property of the Slovenian Development Corporation, the challenged Art. 6.1 and Art. 51.1 of the Act on Conclusion of Ownership Transformation and Privatization of Legal Entities Owned by the Slovenian Development (hereinafter ZZLPPO) could not interfere with the ownership legal position of the petitioners. Therefore, the mentioned provisions are not inconsistent with Art. 33 of the Constitution.

Conditions for the privatization of separated property are determined by the regulation in Art. 51 of ZZLPPO and not by Arts. 13.2, 18, 19, 20 and 27 of the same Act. Since Arts.

13.2, 18, 19, 20 and 27 do not change the legal position of the petitioners, they are not inconsistent with Arts. 2 and 155 of the Constitution.

By means of the interpretation of other provisions of the Act it is not possible to ascertain which provisions of Arts. 18 to 20 are to be applied in each individual case. Besides Art. 51.4 of ZZLPPO also does not determine that in each concrete case the determination of the value of separated property and the determination of a selling price depend on the conditions under which the company has carried out ownership transformation.

Thus, the persons determined in the previously valid Art. 13.3 of ZLPP would be, according to the new regulation, in a worse position also if it were clear which parts of the provisions of Arts. 18 to 20 are to be applied. The rights to discounts regrading the purchase are namely not the contents of the mentioned provisions.

The legislature did not have a substantiated reason for the mentioned interference. Merely the circumstance that ownership transformation is concluded prior to denationalization procedures cannot be a reason to justify the legislature's interference with the legal position of the rightful persons pursuant to the previous regulation. The challenged regulation also means an interference with the anticipated rights of parties to transitional procedures. Accordingly, Art. 51.4 is contrary to Arts. 2 and 33 of the Constitution, since it does not determine that the determination of the value of the separated property and the determination of the selling price depend on the conditions under which the company has carried out its ownership transformation. This means that the financial effect of this method should be comparable to beneficial effects if the resources were not separated and were included in the ownership transformation of the company.

In cases in which the value of separated resources is unproportionally higher than the value of the property of the transformed entity, the privatization method determined in Art.

51.9 of ZZLPPO can as a rule mean a liquidity shock for the company in spite of the determination of the price which would consider the conditions under which the company has carried out its ownership transformation. The final taking away of basic resources from the property of the legal entities which, following legislation, continue to appear at the market with their work means an interference with the existing property rights of these legal entities, can mean an interference with the right of the social security of workers employed there and means an interference with freedom of enterprise, for it can reduce competition and the ability to obtain income. Since the challenged regulation in the mentioned cases does not actually enable companies to preserve separated property in the framework of their resources, if there is no reason for their return to denationalization claimants, the legislature interfered also with the legal position of the companies, without having a sound reason for that. Therefore, such regulation is also contrary to Arts. 2 and 33 of the Constitution insofar as it prevents the companies from keeping their separated resources with their property.
Password:
Public interest.
Statute, legislature, field of discretion.
Constitutional Court, temporary injunction.
Constitutional Court, determination of a manner of the implementation of a Constitutional Court decision.
Ownership, ownership transformation of companies.
Company, privatization.
Principles of a State governed by the rule of law.
Right to private property and inheritance.
Anticipated rights.
Statute, retroactivity.
Retroactivity, statute.
Constitutional Court, determination of a time limit for the norm-giver to adjust its norms with the Constitution (Art. 48 of ZUstS).
Constitutional Court, determination of a manner of the implementation of a Constitutional Court decision.
Principle of legal certainty.
Principle of trust in the law.
Principle of proportionality.
Freedom of enterprise.
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Ownership Transformation of Companies Act (ZLPP), Arts. 9 to 16, 20
Constitutional Court Act (ZUstS), Arts. 40.2, 48
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Metalka trgovina, Inc., Ljubljana and others
Date of application:
20.09.1999
Date of decision:
19.01.2001
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Document:
AN02282