Area: Javna uprava
Competent authority: MJU, MP
EZU URL: .nan
Initiative ID: 1095
Initiative accepted and completed: '2021-01-20'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2021-01-06'
Initiative published: '2021-01-06'
Initiative submitted: '2021-01-06'
Response from the competent authority: "Answer from the Ministry of Justice:We would\
  \ like to clarify that the purpose of obtaining the declaration referred to in Article\
  \ 35(5) of the Integrity and Prevention of Corruption Act[1] (hereinafter referred\
  \ to as the ICPC Act) that the tenderer, a natural person or a business entity,\
  \ is not related to an official and, to the best of its knowledge, is not related\
  \ to a family member of the official in the manner set out in Article 35(1) is primarily\
  \ to provide the public sector entity with an additional opportunity to check for\
  \ potential conflicts of interest and restrictions on business. Despite the existing\
  \ controls and possibilities of obtaining information, the public sector entities\
  \ in which officials hold office often conclude contracts which violate the business\
  \ restrictions and, consequently, the nullity of the concluded contracts.The declaration\
  \ is provided for in Article 35(5) of the ICPPL when concluding a public-private\
  \ partnership or in a public procurement procedure, or, if no public procurement\
  \ procedure has been carried out, before the conclusion of the contract. The term\
  \ \"contract\" can be understood in two ways, which has led to a number of questions\
  \ in practice regarding the implementation of the obligations under this paragraph.\
  \ Thus, according to the general law of obligations, the term \"contract\" can mean\
  \ any agreement of wills, including oral agreements, but, according to the common\
  \ understanding, the same term can also mean an instrument in which an agreement\
  \ of wills is expressed. Since a purely grammatical interpretation of the statutory\
  \ text is not sufficient in a specific case, it is necessary to resort to a purposive\
  \ interpretation. The obligation to sign a declaration of intent whenever there\
  \ is an agreement to do so, including in the case of purchases made via websites,\
  \ using a (company) credit card, purchases made by purchase order, etc., would lead\
  \ to an absurd situation where the normal functioning of the public sector would\
  \ be virtually impossible. The latter is not the intention of the provision in question.\
  \ According to its intended interpretation, the law therefore only applies to contracts\
  \ concluded in writing and signed by representatives of both parties. According\
  \ to the Ministry of Justice, therefore, a written declaration need not be required\
  \ or made in cases of purchases by purchase order, debit card or cash where no procurement\
  \ procedure has been carried out in accordance with the PPL or no written contract\
  \ signed by representatives of both parties has been concluded.\r\n[1] Official\
  \ Journal of the RS, No 69/11 - officially consolidated text and 158/20."
Text file: 1095.txt
Title: Removal of the declaration on the restriction of business under the new Article
  35(5) of the ICPC Act
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=1095
