Judicial protection against spatial planning implementing acts

The arrangement allowing for an administrative dispute against spatial planning implementing acts was in force until the recent decision of the Constitutional Court, Ref. No. U-I-327/20-16 of 20 January 2022. In this decision, the Constitutional Court ruled on a request to review the constitutionality of Article 58 of the ZUreP-2, which the Administrative Court filed. The latter held that it did not have jurisdiction to rule on actions brought against municipal spatial plans, since the review was of the legality of a general legal act under Article 58 of the ZUreP-2, which has effect against all (erga omnes), and that its decision would interfere with the public interest, the interest of third parties and the original municipal task of spatial planning (Article 140 of the Constitution). ZUreP-2 lapsed during the proceedings before the Constitutional Court, but it remains applicable until the ZUreP-3 becomes applicable (i.e. until 31 May 2022). 

In its review of the constitutionality of Article 58 of the ZUreP-2, the Constitutional Court found that spatial planning implementing acts, as defined by ZUreP-2, meet the substantive criteria for a general legal act. The Constitution has indeed divided the supervision of legal acts of the executive-administrative branch of power between the Constitutional Court and the Administrative Court. However, the Administrative Court is only entrusted with supervising the legality of individual acts, while the review of the constitutionality and legality of general administrative acts is the preserve of the Constitutional Court. Consequently, the legal regulation conferring the same competence on the Administrative Court was incompatible with the Constitution. This means that the Administrative Court no longer has jurisdiction to rule on actions brought under the repealed Article 58 of the ZUreP-2. 

However, the unconstitutionality finding may undermine the position of those claimants who relied on the repealed legal regulation, filed a lawsuit in an administrative dispute on those grounds, and who subsequently missed the deadline for filing a petition to review of constitutionality and legality of the contested provisions of the spatial planning implementing acts before the Constitutional Court. For these reasons, the Constitutional Court determined that the Administrative Court and the Supreme Court, respectively, must decide in the administrative dispute under Article 58 of the ZUreP-2 within three months of the publication of the decision of the Constitutional Court in the Official Journal of the Republic of Slovenia, taking into account the views adopted by the Constitutional Court in that decision. However, affected individuals and non-governmental organisations may, within three months of the notification of the decision of the Administrative Court or the Supreme Court, which concludes the procedure for deciding on their claim, file a petition to initiate proceedings to review the constitutionality and legality of a spatial planning implementing act in line with the Constitutional Court Act. 

A new law, the ZUreP-3, will apply from 1 June 2022. This means that until the new law applies all entities wishing to challenge spatial planning implementing acts will have (only) judicial protection before the Constitutional Court; however, once the new law applies, these entities will again have the option of challenging spatial planning implementing acts by way of an administrative dispute. However, it remains to be seen how long the regime reintroduced by ZUreP-3 will stay in force, given the Constitutional Court’s recent decision on the incompatibility of that arrangement with the Constitution. 

Also problematic is the fact that the possibility of legal protection (only) before the Constitutional Court does not guarantee sufficient and, above all, effective legal protection. In the past, demonstrating a legal interest has proven difficult, and in some cases it has not been possible at all (this applies in particular to non-governmental organisations that have filed petitions on behalf of their members to protect their interests or to assert a general social interest). It has become apparent that the Constitutional Court owing to its limited access, and conditions that petitioners must meet in order to obtain a substantive review of a spatial planning act, is not the court to provide effective legal protection as a first instance court would. It is precisely for this reason that Article 61 of the ZUreP-3 was adopted. It also aims to ensure that Slovenia complies with the requirements of the third pillar of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“Aarhus Convention”). These requirements relate to ensuring effective judicial protection of spatial planning implementation acts. 

It is clear from the foregoing that, on the one hand, the arrangement allowing for a spatial planning implementing act to be challenged before the Administrative Court is not compatible with the Constitution and, on the other hand, (mere) judicial protection before the Constitutional Court falls short of Aarhus Convention requirements. How the legislator will resolve this dilemma in the future can only be speculated at the moment. Still, the fact remains that both the current arrangement and the one to be applied by the ZUreP-3 do not fit the bill. Either from the point of view of compliance with the Constitution (in the case of the competence of the Administrative Court) or from the point of view of effective judicial protection (in the case of the competence of the Constitutional Court alone). 

Author: Manca Vrtačnik, Associate