Intervention measures to encourage significant investments after the COVID-19 epidemic

Authors: Maruša Polak, Miha Hočevar, Nataša Pipan Nahtigal

On 29 May 2020, the Slovenian Parliament adopted the Intervention Act to Remove Obstacles to the Implementation of Significant Investments to Start the Economy After the COVID-19 Epidemic (hereinafter “Act”). Its purpose is to accelerate kick-start of significant investments in the Republic of Slovenia as soon as possible after the COVID-19 epidemic ends, which should enable accelerated commencement of economic activity and growth in key investment sectors of the Slovenian economy.

The new Act sets out the criteria for determining significant investments and is aimed at regulating faster coordination and efficient operation of public authorities in procedures for obtaining permits, opinions and decisions on the basis of sectoral regulations, as well as at setting out conditions to remove obstacles to efficient implementation of significant investments. The Act entered into force on 31 May 2020 and applies to investments that are to be determined by 31 December 2021 as significant investments on the basis of this Act.

1. IDENTIFICATION OF SIGNIFICANT INVESTMENTS

The Act applies to all investments that will be determined as significant investments by the Government of the Republic of Slovenia, on the basis of a proposal by the Minister of the Environment and Spatial Planning. A coordination group as described below will classify such significant investments into three priority lists.

The legal criteria for labelling an investment as “significant investment” are as follows:

• Such investment must implement objectives of national strategic policies and programs, and objectives of strategic policies and programs of the European Cohesion Policy for the periods 2014-2020 or 2021-2027, and other financial mechanisms of the European Union for the period 2021-2027 in the field of transport, energy, economic development infrastructure, environment, agriculture, housing, health care, home care, construction of sheltered housing, education, sports and science, defence, public administration, culture, internal and foreign affairs and justice;
• The value of each significant investment must exceed EUR 5 million, with the exception of investments of the third priority list, where the threshold is set at EUR 25 million;
• Each investment must be ready for implementation, so that it is possible to start implementing it by the end of 2020 (for investments from the first priority list) or the end of 2021 (for investments from the second priority list), respectively;
• Appropriate financial resources for the implementation of each investment have to be ensured by the end of 2020 (for investments from the first priority list) or the end of 2021 (for investments from the second priority list), respectively; and
• Investments of the third priority list must be included in the strategic documents of individual ministries, must require the preparation of a national spatial plan and their planned value must be at least EUR 25 million.

The total estimated financial value of significant investments is EUR 500 million.

2. COORDINATION GROUP

A coordination group will be established by the Minister of the Environment and Spatial Planning who will also adopt rules of procedure for operation of such group. The task of the coordination group will be primarily to coordinate procedures for obtaining opinions, approvals, permits and decisions related to significant investments on the basis of sectoral laws in order to accelerate implementation of significant investments.

The coordination group should not conduct individual decision-making or opinion-giving procedures and should only try to coordinate simultaneous implementation of procedures, as the required decisions will still be adopted by the competent administrative authorities. It is unclear how the coordination of procedures should take place, as there are limits to interference in administrative proceedings, on the basis of the principle of legality and the principle of autonomy of administrative authorities in conducting the procedure and deciding on the case.

3. ACCELERATING THE IMPLEMENTATION OF SIGNIFICANT INVESTMENTS

Pursuant to the Act, all significant investments are considered to be made for the public benefit and must be addressed as a matter of priority by the competent authorities. This applies regardless of the source of financing of an individual investment, which may also include private funds or private funds combined with public sources of funding. Additionally, court proceedings relating to legal protection in construction permit issuance procedures will be considered urgent and priority matters, in order to obtain a final decision as quickly as possible.

The Act foresees priority issuance of opinions, approvals, permits or other acts of state authorities or bodies exercising public powers that are necessary for the implementation of significant investments. If an authority has to decide on several priority matters, the priority criterion is the ranking of the respective investment on the priority list and the source of funding, in the following order: private funds, international funding mechanisms (development funds and banks), budget funds and earmarked budget funds and dedicated funds, public finance resources of municipalities, funds from the European Cohesion Policy and other European financial mechanisms, and national public funding resources.

If the locally competent authority will not be able to ensure priority treatment of a significant investment, the Government of the Republic of Slovenia shall at the initiative of the coordination group be competent to decide on the transfer of territorial jurisdiction.

4. LIMITATIONS IN PUBLIC PROCUREMENT PROCEDURES

The Act stipulates the mandatory application of the European Commission Guidance on the participation of third country bidders and goods in the EU procurement market. According to this guidance, public procurement in the Member States should be open to tenderers from European countries and (currently 19) countries with which the European Union has signed international or bilateral agreements on free trade. Companies from third countries that are not signatories to the WTO Agreement on Government Procurement, e.g. Turkey, Bosnia and Herzegovina, and China, will thus likely be excluded from public procurement procedures, as tender specifications will not allow their participation. It is not clear whether the application of European guidance based on this Act is obligatory only for public procurement procedures related to significant investments or for all public procurement procedures in Slovenia, and it is also not clear if exclusion of such third-country bidders is mandatory under the Act.

Additionally, when participating in public procurement procedures for significant investments, all construction contractors and subcontractors in the construction industry (Eurostat NACE classification, group F) will be obliged to apply the then applicable Collective Agreement for construction activities with the same employee rights as those of the employees of the Collective Agreement for construction activities.