An administrative act may be challenged on the following grounds:
In addition, grounds for lodging a complaint against the absence of a decision of an administrative authority are that a complainant was not issued an administrative act or that such was not served on the complainant within the prescribed time-limit (i.e. within two moths or within a shorter time-limit determined by a special regulation). Before lodging the complaint against the absence of a decision of an administrative authority, the party must file a request with the competent administrative authority that a decision be issued within the next seven days. [4]
The new Judicial Review of Administrative Acts Act (ZUS-1), which entered into force on 1 January 2007, no longer determines that a representative of the public interest is a special party in proceedings for the judicial review of administrative acts, but that a representative of the public interest may only take part in proceedings as a complainant. [6] In accordance with the former regulation of proceedings for the judicial review of administrative acts, a representative of the public interest had the position of a special party to proceedings for the judicial review of administrative acts, [7] provided that he or she notified the court of his or her participation in proceedings, [8] whereas he or she could take part in proceedings as a complainant only by filing a counterclaim. [9]
The Administrative Court in Ljubljana has two departments which specialize in taxation cases, namely:
The above-mentioned regulation that a single judge may decide certain cases (and therefore decides on the merits in a dispute) was introduced by the new Judicial Review of Administrative Acts Act (ZUS-1), which, as stated above, entered into force on 1 January 2007. In 2007, single judges at the Administrative Court decided 10.2% of all cases decided on the merits. [18]
A preliminary (i.e. temporary) injunction to suspend the enforcement of an administrative act prevents the enforcement of the administrative act until the final decision on the dispute if irreparable damage to the complainant could result from the enforcement thereof. In deciding on the preliminary injunction, the court must also consider the public interest and the benefits of the opposing parties in accordance with the principle of proportionality. [19]
A special type of preliminary injunction is the temporary regulation of the state of affairs in the disputed case until the final decision of the court if such regulation proves to be necessary particularly in instances of long-term legal relations. [20] The conditions under which such preliminary injunction may be issued are the same as the conditions for a suspensive preliminary injunction.
A formal condition for a preliminary injunction to be issued is that a complaint is lodged in time in proceedings for the judicial review of administrative acts.
The time-limits in proceedings for the issuance of a preliminary injunction are very short; the Administrative Court must decide within seven days and the Supreme Court within fifteen days. [21]
In 2007, the Administrative Court granted only 5.2% of the requests that a preliminary injunction be issued. [22]
Model proceedings are a special type of proceedings for the judicial review of administrative acts intended in instances where there exists a large number of connected or related cases so that the proceedings are simplified and decisions in individual cases adopted in a shorter time. [23] The court may decide to conduct model proceedings if more than twenty complaints were lodged against administrative acts in which the rights or obligations are based on the same or a similar state of the facts and the same legal basis. In such instances, the court conducts the proceedings (only) on the basis of one complaint, and stays the other proceedings until the decision issued in the model proceedings becomes final.
The objective of model proceedings is the economy and acceleration of proceedings. A preliminary condition for conducting such proceedings is that there are more than twenty complaints lodged against administrative acts which are based on the same or a similar state of the facts and the same legal basis. In such instances, the court may, after it has received replies to the complaints, conduct the model proceedings on the basis of one complaint, and stays the other proceedings. [24] After the decision issued in the model proceedings is final, the court decides on stayed proceedings without a hearing, however, only if the state of the facts and the legal nature of the complaints are not essentially different than the state of the facts and legal nature of the complaint decided in the model proceedings. [25] The model proceedings are reasonable only in cases which must be decided in a main hearing. In such cases the court namely conducts a main hearing only in the model case.
The Administrative Court has not yet conducted model proceedings in taxation cases.
The same Act determines the conditions under which the court of first instance may decide a case without conducting a main hearing (i.e. decides in a closed session). [27] The essential conditions for deciding in a closed session are:
In a dispute on the lawfulness of an administrative act, the court “only” reviews whether the challenged administrative act is lawful, whereas it does not decide on the merits of an administrative case. If the court does not dismiss a complaint as unsubstantiated, it grants the complaint and annuls the challenged administrative act by a judgment, and as a general rule remands the case for new deciding to the authority which issued the administrative act or submits the case to the authority which has jurisdiction. [33] Such cases are in fact disputes on the lawfulness of the administrative act. In deciding in the new proceedings, the competent administrative authority is bound by the legal opinion of the court on the application of substantive law and by its position regarding the proceedings.
In addition, if the court annuls the administrative act, it may itself, within the scope of the claim, decide on the merits by a judgment under the conditions determined by the Judicial Review of Administrative Acts Act (ZUS-1), i.e. a full jurisdictional dispute. [34] The aforementioned entails that a judicial decision entirely supersedes the annulled administrative act and thereby directly affects the individual legal relation. [35]A full jurisdictional dispute is admissible if the nature of the matter allows such and if the data collected in the proceedings provide a sound basis for such or if the court itself established the state of the facts at the main hearing. However, in taxation cases, as in judicial review of administrative acts cases, in general, courts very rarely decide in a full jurisdictional dispute. Proceedings for the judicial review of administrative acts namely constitute judicial supervision of administrative deciding (or in our case, deciding in taxation cases). A greater number of decisions issued in full jurisdictional disputes could entail the risk that the Administrative Court has assumed the position of an administrative authority.
If a complaint against the absence of the decision of an administrative authority is lodged and the court determines that it is substantiated, it grants the complaint and requires the authority to issue or serve the act on the complainant; under the conditions determined by law, it may even decide in a full jurisdictional dispute. [36]
The Judicial Review of Administrative Acts Act (ZUS-1) allows revision in the following instances:
In view of the fact that the Judicial Review of Administrative Acts Act (ZUS-1) has only been in force since 1 January 2007, the case law regarding the admissibility of revision is still not established. The Supreme Court has, however, adopted the position that a defendant does not have a legal interest to file a revision because the defendant has the position of an authority which has, in accordance with the law, jurisdiction to decide after the judicial decision becomes final. Pursuant to the position of the Supreme Court, such duty excludes a legal interest to file a revision. [40]
[1] Article 2 of the Judicial Review of Administrative Acts Act (ZUS-1, Official Gazette RS, No. 105/06).
[2] The first paragraph of Article 28 of the Judicial Review of Administrative Acts Act (ZUS-1).
[3] Article 27 of the Judicial Review of Administrative Acts Act (ZUS-1).
[4] The third paragraph of Article 5 and the second to fourth paragraphs of Article 28 of the Judicial Review of Administrative Acts Act (ZUS-1).
[5] The first paragraph of Article 17 of the Judicial Review of Administrative Acts Act (ZUS-1).
[6] The third paragraph of Article 17 of the Judicial Review of Administrative Acts Act (ZUS-1).
[7] Article 17 of the Judicial Review of Administrative Acts Act (ZUS, Official Gazette RS, Nos. 50/97 and 70/00).
[8] The third paragraph of Article 36 of the Judicial Review of Administrative Acts Act (ZUS).
[9] Article 40 of the Judicial Review of Administrative Acts Act (ZUS).
[10] The fifth paragraph of Article 17 of the Judicial Review of Administrative Acts Act (ZUS-1).
[11] The third indent of Article 16 of the Judicial Review of Administrative Acts Act (ZUS-1).
[12] Article 19 of the Judicial Review of Administrative Acts Act (ZUS-1).
[13] The first, second, and third paragraphs of Article 9 of the Judicial Review of Administrative Acts Act (ZUS-1).
[14] The forth paragraph of Article 9 of the Judicial Review of Administrative Acts Act (ZUS-1).
[15] The sixth paragraph of Article 9 of the Judicial Review of Administrative Acts Act (ZUS-1).
[16] The first paragraph of Article 13 of the Judicial Review of Administrative Acts Act (ZUS-1).
[17] The second paragraph of Article 13 of the Judicial Review of Administrative Acts Act (ZUS-1).
[18] Annual Report on the Work of the Administrative Court of the Republic of Slovenia, 2007, No. Su 07001/2008-1, dated 31 January 2008.
[19] The second paragraph of Article 32 of the Judicial Review of Administrative Acts Act (ZUS-1).
[20] The third paragraph of Article 32 of the Judicial Review of Administrative Acts Act (ZUS-1).
[21] The fifth and sixth paragraphs of Article 32 of the Judicial Review of Administrative Acts Act (ZUS-1).
[22] Annual Report on the Work of the Administrative Court of the Republic Slovenia, 2007.
[23] Androjna, Vilko, Kerševan, Erik, 2006, Upravno procesno pravo, Pravna obzorja, GV Založba, Ljubljana, p. 728.
[24] Article 43 of the Judicial Review of Administrative Acts Act (ZUS-1).
[25] Article 44 of the Judicial Review of Administrative Acts Act (ZUS-1).
[26] The first paragraph of Article 51 of the Judicial Review of Administrative Acts Act (ZUS-1).
[27] Article 59 of the Judicial Review of Administrative Acts Act (ZUS-1).
[28] These are inadmissible new facts and evidence. In accordance with Article 52 of the Judicial Review of Administrative Acts Act (ZUS-1), a complainant may state new facts and evidence in a complaint whereby he or she must explain why he or she did not state such already in the proceedings in which such act was issued. New facts and evidence may only be considered if they existed at the time of the proceedings for the issuance of the administrative act in the first instance and if the party was justifiably unable to state or submit such in proceedings for the issuance of the administrative act.
[29] Annual Report on the Work of the Administrative Court of the Republic Slovenia, 2007.
[30] The first and second paragraphs of Article 20 of the Judicial Review of Administrative Acts Act (ZUS-1).
[31] The first paragraph of Article 61 of the Judicial Review of Administrative Acts Act (ZUS-1).
[32] The second paragraph of Article 61 of the Judicial Review of Administrative Acts Act (ZUS-1).
[33] Article 64 of the Judicial Review of Administrative Acts Act (ZUS-1).
[34] Article 65 of the Judicial Review of Administrative Acts Act (ZUS-1).
[35] Grafenauer, Božo, Breznik, Janez, 2005, Upravni postopek in upravni spor, GV Založba, Ljubljana, pp. 484-485.
[36] Article 69 of the Judicial Review of Administrative Acts Act (ZUS-1).
[37] The second paragraph of Article 12 of the Judicial Review of Administrative Acts Act (ZUS-1).
[38] The first paragraph of Article 73 of the Judicial Review of Administrative Acts Act (ZUS-1).
[39] Article 83 of the Judicial Review of Administrative Acts Act (ZUS-1).
[40] Supreme Court of the Republic of Slovenia Order No. X Ips 322/2007-5, dated 18 April 2007.
[41] In accordance with the concept of subjective dispute, proceedings for the judicial review of administrative acts are primarily intended for the protection of the rights or legal entitlements of individuals (natural persons and legal entities), whereby the objective lawfulness of administrative acts is of secondary importance.
[42] The draft Judicial Review of Administrative Acts Act, first reading, 1 June 2006, EVA: 2006-2011-0008.
[43] Article 50 of the Court Rules (Official Gazette RS, No. 17/95 with amendments) in conjunction with the transitional provision of Article 40 of the Amendments to the Court Rules (Official Gazette RS, No. 16/08).
[44] Annual Report on the Work of the Administrative Court of the Republic Slovenia, 2007.