Text file: 11964.txt
author: Od besed k dejanjem
downvotes: 3
end consideration date: 2020-08-28
id: '11964'
number comments: 10
number views: 976
proposal type: Competent authority response
response: "Response from the Ministry of Public Administration\nBy way of introduction,\
  \ we would like to clarify that, pursuant to Article 42(4) of the Constitution of\
  \ the Republic of Slovenia (Official Gazette of the Republic of Slovenia, No. 33/91-I,\
  \ 42/97 - UZS68, 66/00 - UZ80, 24/03 - UZ3a, 47, 68, 69/04 - UZ14, 69/04 - UZ43,\
  \ 69/04 - UZ50, 68/06 - UZ121,140,143, 47/13 - UZ148, 47/13 - UZ90,97,99 and 75/16\
  \ - UZ70a, hereinafter referred to as the Constitution), the explicit prohibition\
  \ to be a member of a political party is imposed on professional members of the\
  \ defence forces and the police.\nThe Law on Civil Servants (Official Journal of\
  \ the Republic of Slovenia, No. 63/07 - Official consolidated text, 65/08, 69/08\
  \ - ZTFI-A, 69/08 - ZZavar-E and 40/12 - ZUJF, hereinafter referred to as the ZJU)\
  \ defines the concept of the public sector in Article 1, by stating that the public\
  \ sector includes:\n State authorities and local community administrations, public\
  \ agencies, public funds, public institutions and public economic institutions,\
  \ other public law persons, if they are indirect users of the State budget or the\
  \ budget of a local community.\nThus, public enterprises and companies in which\
  \ the State or a local community has a majority share or a dominant influence are\
  \ not part of the public sector under this Law. Institutions of the broader public\
  \ sector (such as public undertakings and companies in which the State has a majority\
  \ shareholding or dominant influence) are generally regulated in terms of their\
  \ content and organisation by various sectoral laws, by-laws and other acts adopted\
  \ on the basis of the law (such as the statutes of a company).\nThe principles of\
  \ professionalism, transparency and equality must be followed in the selection of\
  \ candidates for employment in the civil service. Under Article 122 of the Constitution,\
  \ recruitment to the administrative service may be made only on the basis of a public\
  \ competition, except in the cases provided for by law. On this legal basis, the\
  \ rules governing the recruitment of civil servants in State and local authority\
  \ administrations are governed by the ZJU, which lays down two principles in particular\
  \ in the area of recruitment:\n the principle of equal accessibility (Article 7\
  \ of the ZJU), according to which the recruitment of civil servants is carried out\
  \ in such a way as to ensure equal accessibility of posts to all interested candidates\
  \ on equal terms and conditions and to ensure the selection of the candidate best\
  \ qualified to perform the duties of the post; and the principle of public competition\
  \ (Article 27 of the ZJU), which constitutes a legal mechanism ensuring the consistent\
  \ implementation of the principle of equal accessibility. According to this principle,\
  \ officials are selected through a public competition, which is open and transparent.\n\
  The public competition implies the implementation of the principle of equal accessibility\
  \ of the post for officials in State and local authorities. It is a mechanism that\
  \ ensures a more objective selection of officials and allows unsuccessful candidates\
  \ to appeal and seek judicial redress. The essence of a public competition is competition\
  \ between those who meet the conditions of the competition. The selection procedure\
  \ of the open competition tests the qualifications of the candidates and selects\
  \ a candidate according to predefined criteria. The candidate who has proved himself/herself\
  \ in the selection procedure to be the most suitable or best qualified to perform\
  \ the duties of the post shall be selected.\nThe criterion of professionalism is\
  \ also a prerequisite for the appointment of the most senior officials in the civil\
  \ service, i.e. officials holding the posts of Directors-General and Secretaries-General\
  \ in ministries, heads of constituent bodies of ministries, heads of government\
  \ departments and heads of administrative units. The principles of equality, transparency\
  \ and professionalism should be followed both in the selection of candidates for\
  \ recruitment to civil service posts and in the appointment of top officials to\
  \ these posts. The current legal framework aims to ensure transparency in the selection\
  \ process of all officials, including officials in senior positions, and thus to\
  \ improve the quality and professionalism of the civil service.\nThe selection of\
  \ officials at the highest levels of the civil service is carried out by the Civil\
  \ Service Council, which is also responsible for setting the standards of professional\
  \ competence, the selection criteria and the methods for verifying the qualifications\
  \ of candidates for senior civil servant posts, in accordance with the Civil Service\
  \ Act. A post as an official may not be filled without a prior public competition\
  \ and a procedure before a special competition board. Under the current rules, the\
  \ appointment to the highest level posts of officials may not be made if the person\
  \ concerned has been found to be unqualified or if he or she does not fulfil the\
  \ conditions for the post laid down in the internal organisation and systematisation\
  \ of posts Act. The final choice shall be left to the official, who shall select\
  \ the one he considers most suitable from among the candidates suitable for the\
  \ post. The official may at any time consider that none of the candidates proposed\
  \ is suitable for the post in question.\nThe Standards of Professional Competence\
  \ with Selection Criteria and Methods for the Examination of the Competence of Civil\
  \ Servants, adopted by the Council of Civil Servants at its meetings of 8.11.2010,\
  \ 9.12.2013 and 11.4.2016, serve as a tool or tool for the Special Selection Boards\
  \ in the process of assessing the suitability of candidates, while ensuring a uniform\
  \ approach to the selection of candidates. The competency standards are divided\
  \ into two main strands, with each strand being subdivided into two further elements:\n\
  \ Experience and managerial skills a.) the extent and quality of work and management\
  \ experience and the ability to lead and manage b.) the value of a vision for the\
  \ development of the organisational unit or body. c.) knowledge of the field of\
  \ work and understanding of the mission and role of the organisational unit or body\
  \ in the system. d.) knowledge of resource planning and use.\nThe Council of Officials\
  \ is also the sole authority for appointing special selection boards, which determine\
  \ on a case-by-case basis, in a specific competition procedure, which candidates\
  \ fulfil the conditions for the post and which candidates are suitable for the post\
  \ in the light of their professional qualifications. The Head of State, as the proposer\
  \ of the specific competition, shall propose to the Council of Officials the launching\
  \ of the specific competition. The Civil Service Council shall, by special decision,\
  \ appoint a special selection board in accordance with Article 178(2) of the Staff\
  \ Regulations. As a general rule, the special selection board shall be composed\
  \ of three members and shall consist of a chairman and two members, or a maximum\
  \ of five members (chairman and four members).\nAll applications for posts under\
  \ the responsibility of the Council of Officials shall be collected at the Ministry\
  \ of Public Administration. The components of the application and their content\
  \ are laid down in the text of the call for applications and in the Standards of\
  \ Competence. After the closing date for applications, the Ministry of Public Administration\
  \ will determine which candidates meet the conditions for the post on the basis\
  \ of the applications submitted and whether the applications are timely and complete.\
  \ The expert service of the competent ministry shall draw up a table on the procedural\
  \ prerequisites and eligibility, which it shall forward to the members of the special\
  \ selection board, together with all the complete and timely applications from the\
  \ candidates. All candidates who have submitted a complete application on time and\
  \ whose application shows that they fulfil the conditions of the special competition\
  \ shall be included in the selection procedure for the special competition. The\
  \ selection procedure shall test the suitability of the candidate to perform the\
  \ duties of the post by examining the documentation submitted by the candidate in\
  \ the selection procedure and by interviewing the candidate on the basis of the\
  \ Standards of Proficiency. The Special Selection Board shall assess which of the\
  \ eligible candidates are suitable for the post in the light of their fulfilment\
  \ of the Standards of Proficiency. In doing so, it assesses the candidate's experience\
  \ and managerial skills and expertise.\nCandidates who fulfil the conditions of\
  \ the competition and who, having regard to the Standards of Proficiency, are suitable\
  \ for the post shall be placed in alphabetical order on a list which the chairman\
  \ of the special selection board shall forward to the head of the authority which\
  \ initiated the competition. The special selection board shall issue a special decision\
  \ in accordance with Article 64(1) of the Staff Regulations to those candidates\
  \ and to candidates who are not included on the list because, in the opinion of\
  \ the special selection board, they are unsuitable for the post in the light of\
  \ their fulfilment of the Standards of Proficiency. The reasons for the decision\
  \ on the suitability or unsuitability of the candidate shall also include the reasons\
  \ for the assessment of the candidate contained in the evaluation form. Candidates\
  \ have no right of appeal against those decisions but may bring an administrative\
  \ dispute before the competent administrative court.\nFrom the list of suitable\
  \ candidates, the official to whom the official holding the post is responsible\
  \ shall, at his or her discretion, select the candidate he or she considers most\
  \ suitable and either appoint him or her himself or herself (in the case of the\
  \ head of an administrative unit) or propose him or her to the Government for appointment\
  \ (in the case of any other post referred to in paragraph 4 of Article 60(4) of\
  \ the Staff Regulations). If the Head of State considers that none of the candidates\
  \ on the list is suitable to fill the post, he may, pursuant to Article 64(2) of\
  \ the Staff Regulations, request the Council of Officials to repeat the procedure\
  \ or, subject to the provisions of Article 178 of the Staff Regulations, appoint\
  \ a special selection board himself.\nA post of an official under the ZJU cannot\
  \ therefore be filled without a prior public competition and a procedure before\
  \ a special competition board. The final choice is indeed left to the official,\
  \ who chooses the one he considers most suitable from among the candidates suitable\
  \ for the post, but the official may always consider that none of the proposed candidates\
  \ is suitable for the post. It is essential that, under the current rules, no one\
  \ may be appointed to a top official post who has not been found to be professionally\
  \ suitable, still less someone who does not fulfil the basic conditions for the\
  \ post laid down in the internal organisation and establishment plan.\nPursuant\
  \ to Article 2 of the Act on the system of remuneration in the public sector (Official\
  \ Journal of the Republic of Slovenia, No 108/09 - Official consolidated text, 13/10,\
  \ 59/10, 85/10, 107/10, 35/11 - ORZSPJS49a, 27/12 - Decree of the European Union,\
  \ 40/12 - ZUJF, 46/13, 25/14 - ZFU, 50/14, 95/14 - ZUPPJS15, 82/15, 23/17 - ZDOdv,\
  \ 67/17, 84/18), office-holders are persons who have acquired a mandate to perform\
  \ an office:\n by general election (MP, mayor, municipal councillor), by election\
  \ or appointment in the National Assembly of the Republic of Slovenia (minister,\
  \ ombudsman), and other persons elected or appointed as functionaries by the legislative,\
  \ executive (secretary of state) or judicial authorities and mayors in accordance\
  \ with the law.\nIt should be clarified that officials who have acquired a mandate\
  \ to exercise their functions in the above-mentioned manner are not public servants\
  \ and do not belong to the civil service system.\nThe Government of the Republic\
  \ of Slovenia considers that the current arrangements for the appointment of officials\
  \ to the highest positions in State bodies and local authorities are adequate, that\
  \ the individual authorities operate in a transparent and lawful manner in the management\
  \ of recruitment procedures, and that the current arrangements also provide adequate\
  \ legal protection for unsuccessful candidates, in which the lawfulness of the conduct\
  \ of the competition procedure and the correctness of the selection process are\
  \ reviewed.\nWith regard to the reintroduction of the civil service civil service\
  \ examination, we would like to clarify that the introduction is linked to a change\
  \ in the law, namely the Law on the Labour Code, which is not currently on the work\
  \ programme of the Government of the Republic of Slovenia. Past practice has shown\
  \ that an adequate level of professionalism of civil servants is not ensured solely\
  \ by testing their knowledge in professional examinations, but primarily through\
  \ continuous training and further training. For this reason, emphasis should be\
  \ placed on training and, in the case of newly recruited civil servants, on induction,\
  \ which used to be the subject of a professional examination for appointment to\
  \ a grade.\nCompulsory training for appointment to a grade is laid down in Article\
  \ 89 of the Staff Regulations.After appointment to a grade, a civil servant must\
  \ undergo training, to be given by his/her superior, covering the following subjects,\
  \ no later than one year from the date of conclusion of the contract of employment:\n\
  \ constitutional arrangements, the system of legislative, executive and judicial\
  \ powers and the relations between them, local self-government, the system of public\
  \ finances, the institutions of the European Union and its legal system, administrative\
  \ procedure and administrative litigation, and the operation of public administration\
  \ bodies.\nParticipation in training in the above subjects is compulsory for civil\
  \ servants and counts as part of their regular duties.\n \nResponse from the Ministry\
  \ of Justice\nThe Ministry of Justice agrees with the above principles for the selection\
  \ of candidates and applies them in all procedures in its field of work, as well\
  \ as implementing them in legislation in its field of work. In addition to the conditions\
  \ of competence, professionalism, relevant education and experience, and the necessary\
  \ special skills, the Ministry has set personal suitability as an additional condition\
  \ for appointment to the office of judge, prosecutor and for officials of the Commission\
  \ for the Prevention of Corruption.\nAccording to the Ministry, the current public\
  \ service legislation already requires compliance with most of the principles set\
  \ out in the proposal, but the Ministry has no direct influence on their practical\
  \ implementation. Indirectly, the Ministry influences the implementation of the\
  \ above by strengthening, through sectoral legislation, the supervisory institutions\
  \ and the institutions of prosecution and trial, in order to detect in time any\
  \ anomalies in the system (the Integrity and Prevention of Corruption Act, which\
  \ regulates the functioning of the Commission for the Prevention of Corruption,\
  \ the Criminal Procedure Act, the Courts Act, the Public Prosecutor's Office Act).\n\
  As regards the part of the proposal concerning the prohibition of members of political\
  \ parties from holding managerial positions in the public administration and state-owned\
  \ enterprises for two years after the expiry of their mandate, we would like to\
  \ clarify that, while membership of political parties may be a barrier to certain\
  \ public sector jobs (e.g. the Police and the Slovenian Armed Forces), such a prohibition\
  \ must be specifically justified. A general prohibition would unduly interfere with\
  \ the freedom to work enshrined in Article 49 of the Constitution. Membership of\
  \ a political party is not a gainful activity, which means that such a ban would\
  \ prevent individuals who are members of political parties from working in the public\
  \ sector (at least in managerial positions).\nThe Integrity and Prevention of Corruption\
  \ Act regulates the prohibition of membership and activities (Article 27) and incompatibility\
  \ of office (Article 26) for public officials. In our view, these two institutions\
  \ are adequately regulated to prevent conflicts of interest that would adversely\
  \ affect the functioning of the State. Some sectoral laws also have specific provisions\
  \ on incompatibility of functions; this further protects the interests of the public\
  \ sector against conflicts of interest (e.g. the Law on Members of Parliament, the\
  \ Law on Local Self-Government, the Law on the Court of Auditors, etc.). The arrangements\
  \ are adequate and, in the opinion of the Ministry, do not require any changes."
response date: 2020-10-05
response due date: null
sent date: 2020-07-30
title: Non-partisan governance (non-political staffing)
upvotes: 72
url: https://predlagam.vladi.si/predlog/11964
