1. General Facts on Proceedings for the Judicial Review of Administrative Acts

Proceedings for the judicial review of administrative acts may be initiated before the Administrative Court against final administrative acts by which administrative authorities (or in taxation cases, tax authorities) have decided the rights, obligations, or legal entitlements of individuals, legal entities, or other entities who can be parties to proceedings in which such acts are issued. [1]

This entails that in proceedings for the judicial review of administrative acts, challenged acts are those decisions which contain a decision on the merits, i.e. which determine the content of parties’ rights or obligations or dismiss the parties’ claims that their rights or legal entitlements be recognized. As a general rule, such decisions are first instance administrative (taxation) decisions by which the rights or obligations of parties were decided. In addition, also second instance decisions by which the appellate authority (in instances of taxation cases, the appellate authority is the Ministry of Finance) itself decides on the merits of the case such that the appeal is granted and the first instance decision is changed, contain the decision on the merits.

A complaint must be lodged within 30 days of the serving of the administrative act by which the proceedings were concluded. [2]

2. Grounds for a Complaint

An administrative act may be challenged on the following grounds:

• the erroneous application of substantive law,
• the severe violation of procedural provisions,
• the erroneous or incomplete determination of the state of the facts,
• if there exist reasons due to which an administrative act may be declared void. [3]

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]

3. Parties to Proceedings

• A complainant in proceedings for the judicial review of administrative acts is a person who was a party or intervener in proceedings in which an administrative act was issued. [5]
  

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]

• A defendant in proceedings for the judicial review of administrative acts is the state, local community, or other legal entity which issued an administrative act by which deciding was concluded. [10] In taxation cases, the defendant is the state, represented by the Ministry of Finance, i.e. the authority which issues second instance decisions by which it decides on the appeals of parties (taxable persons) against decisions of first instance tax authorities.

• Finally, also affected persons [11] (i.e. persons who could be directly adversely affected if a challenged administrative act was annulled or amended, or persons whose rights or direct entitlements stemming from a law could be interfered with by the regulation of the disputed relation) [12] have the position of parties to proceedings for the judicial review of administrative acts, however, they do not participate in all proceedings for the judicial review of administrative acts. As a general rule, the affected persons do not participate in taxation cases.
  

4. The Organization of the Administrative Court of the Republic of Slovenia

The Administrative Court of the Republic of Slovenia has its seat in Ljubljana and three external departments in Maribor, Celje, and Nova Gorica. [13]

External departments have jurisdiction according to the residence or seat of the complainant. [14] Taxation cases, except cases concerning personal income tax and cases determined in the Civil Tax Act (i.e. cases concerning inheritance tax, tax on gifts, property tax, and gambling tax), are decided by the Administrative Court in Ljubljana. [15]

The Administrative Court in Ljubljana has two departments which specialize in taxation cases, namely:

• a department for public finance, which decides in cases concerning direct taxes and which employs six judges and two legal assistants, and
• a department for customs and other taxes, which employs four judges and one legal assistant.
  

5. The Composition of the Court

In taxation cases, as in other judicial review of administrative acts cases, the Administrative Court decides in panels of three judges unless the law provides otherwise. [16] The Judicial Review of Administrative Acts Act (ZUS-1) also provides that judicial review of administrative acts cases may be decided by a single judge [17] in the following cases:

• if the value of the matter in dispute in cases in which rights or obligations of parties are expressed in monetary terms does not exceed 20,000 EUR and the case does not concern an important question of law,
• if procedural orders are challenged in proceedings for the issuance of an administrative act (e.g. an order rejecting an appeal, an order reopening proceedings),
• if the case concerns a simple state of the facts and the law,
• if the challenged administrative act has such deficiencies that it cannot be reviewed.

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]

6. Preliminary Injunction

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]

7. Model Proceedings

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.

8. Deciding at a Main Hearing or in a Closed Session

In accordance with the Judicial Review of Administrative Acts Act (ZUS-1), the court of first instance (i.e. the Administrative Court) decides after the main hearing is concluded. [26]

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:

• if the (relevant) state of the facts which was the basis for issuing an administrative act is not disputed by the complainant or defendant,
• if it evidently follows just from the complaint, challenged act, and administrative case files that the complaint must be granted and the administrative act annulled, and an intervener with an opposing interest did not participate in the proceedings for the judicial review of administrative acts,
• if the state of the facts is disputed by the complainant or defendant, but the parties are alleging only such new facts and evidence which, in accordance with the Judicial Review of Administrative Acts Act (ZUS-1), the court may not take into consideration [28] or the alleged new facts and evidence are not relevant for a decision,
• if there is a dispute between the same parties and the state of the facts and the legal basis are similar, and the court has already decided on such matter by a final decision.

At the main hearing the court takes evidence and enables the parties to state allegations and, inasmuch as such is necessary, allows them to orally explain their opinion on the application of substantive law.

In 2007, of all cases decided on the merits by the Administrative Court, 4.5% were decided after a main hearing was conducted. [29]

9. The (Non)Participation of Experts in Proceedings and the Taking of Evidence

While deciding in proceedings for the judicial review of administrative acts, the Administrative Court does not in general call experts from relevant fields. The Administrative Court may, however, call expert witnesses if it assesses that expert knowledge which the court does not possess is needed in order to determine or clarify a certain fact. Available data shows that in taxation cases the Administrative Court called an expert witness in only one case. 

Furthermore, it must be added that the court establishes or reviews the state of the facts within the framework of the allegations contained in the complaint, whereby the court is not bound by evidence submitted by the parties and may take all evidence which could contribute to the clarification of the case and to a lawful and correct decision. [30]

10. The Manner of Deciding of the Court of First Instance

The Administrative Court decides a dispute by a judgment, and questions which refer to proceedings by an order. [31] A panel of judges adopts a judgment or an order by a majority vote. [32]

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]

11. Legal Remedies Against Judgments of the Court of First Instance

The Supreme Court of the Republic of Slovenia decides appeals and revisions against judgments of the courts of first instance. [37]

An appeal against a judgment of the Administrative Court is allowed only if the court itself has established a different state of the facts than was established by the defendant and has changed the challenged administrative act on such basis. [38] Appeals against judgments of the Administrative Court are thus very limited. In a great majority of cases the judgments of the Administrative Court become final upon their issuance. The parties to proceedings may file a revision against a final judgment of the court of first instance within 30 days of the day the judgment was served on them.

The Judicial Review of Administrative Acts Act (ZUS-1) allows revision in the following instances:

• if the value of the challenged part of the final administrative act, or final judgment if the court decided on the merits, exceeds 20,000 EUR, in cases in which the rights or obligations of parties are expressed in monetary terms,
• if the case concerns an important question of law, or if the decision of the court of first instance departs from the case law of the Supreme Court regarding the question of law which is essential for a decision, or if the case law of the court of first instance regarding such question of law is not unified and the Supreme Court has not yet decided on such,
• if a decision which is challenged in proceedings for the judicial review of administrative acts has severe consequences for a party to proceedings. [39]

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]

12. Conclusion and Evaluation of the Situation

In the present paper it has been mentioned several times that in Slovenia the new Judicial Review of Administrative Acts Act (ZUS-1) entered into force at the beginning of 2007, which substantially changed the concept of proceedings for the judicial review of administrative acts hitherto applied (the former Act determined an obligatory two-instance deciding in proceedings for the judicial review of administrative acts, the concept of subjective dispute [41] was not emphasized to the same extent, etc.). The objective of the legislature was primarily to increase the efficiency of deciding in proceedings for the judicial review of administrative acts and to shorten judicial proceedings, i.e. to ensure the right to a trial within a reasonable time. [42]

The Administrative Court is indeed reducing court delays, i.e. cases which are older than 18 months and which were not decided this year (in 2009 the time-limit which defines court delays will be decreased to 12 months and in 2010 to six months), [43] nevertheless the duration of deciding in proceedings for the judicial review of administrative acts is still a serious problem. In the field of taxation, the number of new cases filed before the Administrative Court did decrease (by 10.9%) in 2007, [44] however, increasingly more demanding cases filed with the Administrative Court and the application of European Union law and the case law of the European Court of Justice pose great challenges to the administrative judiciary.