Reference no.: |
U-I-13/00 |
Objavljeno: |
Official Gazette RS, No. 108/01 and OdlUS X, 209 | 13.12.2001 |
ECLI: |
ECLI:SI:USRS:2001:U.I.13.00 |
Act: |
Act on the National Fund of Farm Land and Forests of the Republic of Slovenia Act (Official Gazette RS, Nos. 10/93, and 1/96) Decree on Concession for the Use of Forests Owned by the Republic of Slovenia (Official Gazette RS, No. 34/96), Arts. 7.3, 9 Decree Amending the Decree on Concession for the Use of Forests Owned by the Republic of Slovenia (Official Gazette RS, No. 70/00) |
Operative provisions: |
The petition for the commencement of the proceedings to review the constitutionality and legality of Art. 17.9 of the Act on the National Fund of Farm Land and Forests of the Republic of Slovenia (Official Gazette RS, Nos. 10/93 and 1/96), is dismissed. The petition for the commencement of the proceedings to review the constitutionality and legality of Arts. 7.3 and 9 of the Decree on Concession for the Use of Forests Owned by the Republic of Slovenia (Official Gazette RS, No. 34/96), is dismissed. Decree Amending the Decree on Concession for the Use of Forests Owned by the Republic of Slovenia (Official Gazette RS, No. 70/00), is not inconsistent with the Constitution and the statute. |
Abstract: |
The Fund is obliged, beside the Act, to observe the regulation prescribed in the concessionary act of the Government. Therefore, Art. 17.9 of the Act on the National Fund of Farm Land and Forests of the Republic of Slovenia (ZSKZ), which authorizes the Found to determine the amount of the rent or indemnity for the concession and the amortization period of the investments into the land and permanent plantations, is not inconsistent with the Constitution. An issue of the valorization value of a purchase price is an economic, i.e. technical, issue. Therefore, it does not represent an abstract original norm, which has to be regulated by a statute. The challenged provision of ZSKZ in the part that authorizes the Found to determine the measures and conditions of including a purchase price into a rent or an indemnity for a concession is not inconsistent with the principle of the separation of powers determined in Art. 3.2 of the Constitution. Forests as natural goods and natural recourses demand different measures to assure their economic, social and environmental function, as demanded by housing property (Art. 67 of the Constitution). Determining the amount of a concessionary duty does not mean the interference with any of the petitioners" constitutional rights. Therefore, the request to examine the authorizing norm determined in Art. 17.9 of ZSKZ with the same strictness as the provision of Art. 11 of the Housing Act, is unfounded. Also the assumption of the petitioners that the owner or the Found could abuse the authority to their detriment to annually determine the scope and dynamics of the exploitation of forests and as a consequence diminish the scope and dynamics of their work, is unfounded. In their opinion this is inconsistent with the principle that Slovenia is a social state (Art. 2 of the Constitution) as in that case it would act contrary to the tasks in the public interest. Concession or lease relations are different in contents, which substantiates a different regulation of indemnities for a concession or lease. For that reason, the statement of the petitioners to be in an unequal position with the lessees, inconsistent with Art. 14 of the Constitution, is unfounded. As the petitioners were not deprived of the acquired rights to maintain forest roads, the provision of the Decree is not inconsistent with the principle of the separation of powers (Art. 3.2 of the Constitution) and with Art. 87 of the Constitution. A regulation by which a grantor of concession in the case of force majeure or a manifestly changed market price of wooden assortment changes the annual program of forest exploitation, does not change the concessionary relations into the relations determined in the contract for work, but modifies assumed obligations of the concessionary relations. The petitioners are still allowed to exploit forests, therefore, the Decree is not inconsistent with Art. 21 of the Environment Protection Act. Furthermore, the challenged provision is also not inconsistent with the principle of the separation of powers (Art. 3.2 of the Constitution) and Art. 87 of the Constitution. The challenged provision of the Decree determines a level of the recognized expenses of work and not the basic wages of forest workers, thus not rights and duties of employers and employees as determined in the Contract. Therefore, it cannot be inconsistent with the Contract. With the introduction of a special public law regime of the management and exploitation of forests the legislature, on the basis of Art. 70.2 of the Constitution, has already restricted free economic initiative. The freedom of competition in the case of concessionary activities can only refer to the proceedings of granting a concession (in the discussed case the privilege existed in the proceedings), however, not to the free competition in the management of the activity, thus the provision of the Decree is not inconsistent with the principles of free economic initiative, pursuant to Art. 74 of the Constitution. |
Password: |
Temporary injunction, decree, dismissal. Forests, forestlands, management. Forests, forestlands, concession for the use of forests owned by a state. Amending concession relations. Imposing new duties on the concessionaries. Constitutional principle, separation of powers. Constitutional principle, a social state. Constitutional principle, a state governed by the rule of law. Public interest / Public benefit / General benefit. Natural goods, exploitation. Property, economic, social, environmental function. Constitutional Court, jurisdiction, procedure, a lack of jurisdiction to review the constitutionality and expediency of a new regulation. Constitutional principle, equality before the law. Constitutional rights and freedoms, acquired rights. National Assembly, legislative competence. Constitutional rights and freedoms, freedom of economic initiative. Competition, unfair competition. Dissenting opinion of a Constitutional Court judge. |
Legal basis: |
Constitution, Arts. 2, 3, 14, 70, 74, 87, 121 Forest Act (ZG), Arts. 5, 8, 38 Environment Protection Act (ZVO), Arts. 21, 23 Constitutional Court Act (ZUstU), Art. 21, 26.2 |
Document in PDF: |
|
Type of procedure: |
review of constitutionality and legality of regulations and other general acts |
Type of act: |
statute |
Applicant: |
Company Postojna Forestry, Inc., Postojna and others |
Date of application: |
19.01.2000 |
Date of decision: |
13.12.2001 |
Type of decision adopted: |
decision |
Outcome of proceedings: |
dismissal |
Document: |
AN02488 |
