The uncertain fate of the intervention measures in the field of construction law

Authors: Kaja Baškovič, Miha Štravs

In recent months, the Slovenian Parliament adopted several so-called intervention acts that imposed temporary measures in various areas, one of which is the construction legislation (e.g. regarding the position of accessory participants, the start of construction and the status of non-governmental organizations). More about these measures is available here.

Some of these measures came into force with the Act Determining the Intervention Measures to Contain the COVID-19 Epidemic and Mitigate its Consequences for Citizens and the Economy (ZIUZEOP) and were supposed to expire on 31 May 2020. With the subsequent intervention act, i.e. the Act on the Intervention Measures to Mitigate and Remedy the Consequences of the COVID-19 Epidemic (ZIUOOPE), the applicability of these measures was extended until 31 December 2021.

Recently, a petition to initiate the procedure for the review of the constitutionality of these measures was filed, namely regarding the measures referred to in the fourth paragraph of Article 100.d, Articles 100.e and 100.f and the second paragraph of Article 100.g of the ZIUZEOP. The contested measures can be divided into three areas:

1.   Commencement of construction on the basis of the administratively final building permit

The Building Act allows the start of construction – be it new construction, reconstruction or change – on the basis of a judicially final (binding) building permit. In order to speed up the start of construction investments, the ZIUZEOP introduced the possibility allowing the investor to start construction – at his own risk – based on the administratively final building permit (“dokončno gradbeno dovoljenje”). This allows the investor to start with construction even prior the building permit becomes judicially final (“pravnomočno gradbeno dovoljenje”).

2.   Change of the conditions to be met by non-governmental organizations in order to be allowed participation in the procedure for the issue of the building permit

The legislator also re-examined the position of non-governmental organizations that can participate in the process of issuing of the building permits from the perspective of accelerating construction investments in Slovenia after the end of the epidemic. According to its findings, the various non-governmental organisations pursue different individual interests, therefore the legislator decided to introduce stricter criteria for obtaining the status of a non-governmental organization which should ensure their wider representativeness. Under the new criteria a non-governmental organisation must:

• have at least 50 active members in case of an association (“društvo”);
• employ at least 3 persons full-time in case of an institution (“zavod”); or
• hold at least EUR 10,000 in assets in case of a foundation (“ustanova”);

in order to be allowed participation in the procedure for the issue of the building permit.

3.   Change in the status of accessory participants

ZIUZEOP stipulates that accessory participants (“stranski udeleženci”) in the procedure for issuing of an environmental approval lose their status of accessory participants if the relevant authorities have already decided on the environmental impacts of the project in a separate procedure for obtaining of an environmental approval.

The initiators of the petition for a constitutional review believe that the measures described above could significantly affect the process of issuing of the building permits as they would limit the possibility of participation of non-governmental organizations which could cause irreparable damage to the environment and nature, which is also one of the main reasons for filing this petition.

On 2 July 2020, the Constitutional Court issued a decision ref. no. U-I-184/20-27, by which the application of the contested measures will be suspended until the final decision of the court is reached. The Constitutional Court justified this suspension by the fact that “the application of potentially unconstitutional provisions would have more harmful consequences compared to non-application of potentially Constitution-compliant provisions for a certain period of time until the Constitutional Court’s final decision“.

Thus, until the final decision of the Constitutional Court, the above-mentioned intervention measures have been suspended. Until the final decision is reached, the original provisions of the Building Act will apply regarding these questions.