Area: Javna uprava
Competent authority: MNZ
EZU URL: .nan
Initiative ID: 188
Initiative accepted and completed: '2013-09-18'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2013-09-18'
Initiative published: '2013-09-18'
Initiative submitted: '2013-08-14'
Response from the competent authority: 'Reply from the Ministry of the Interior: you
  have sent us for comment a proposal proposing an amendment to Article 94 of the
  Law on Civil Servants. In the view of the proposer, the provisions of this Article
  are appropriate only for the army and the police and similarly organised services,
  and are explicitly harmful to all other public administration services. The petitioner
  considers that the provisions of the Article largely amount to duplication of work
  and neglect of the direct responsibility to comply with laws and regulations, both
  of the superior and the subordinate official. Furthermore, he considers that the
  Article leads directly to the politicisation of any specific decision-making, thereby
  circumventing the law. By way of introduction, we would like to clarify that the
  general labour law, in relation to the performance of work in an employment relationship,
  on the basis of an employment contract concluded between the employer and the employee,
  lays down the obligations of the employer and the obligations of the employee. The
  employer''s obligations relate to the provision of work, adequate remuneration for
  the work, safe working conditions, protection of the employee''s dignity at work
  and protection of the employee''s personal data. In addition to the obligation to
  inform, the prohibition of harmful conduct, the obligation to protect business secrets
  and the non-competition obligation, the employee''s obligations include the obligation
  to perform the work diligently. The Labour Relations Act (Official Journal of the
  Republic of Slovenia, No 21/13, hereinafter: ''the LRA''), as the general law governing
  employment relations, thus provides in Article 34(1) that an employee must comply
  with the employer''s requests and instructions in relation to the performance of
  contractual and other obligations under the employment relationship. Pursuant to
  the second paragraph of the same Article, a worker may refuse to perform work at
  the direction or request of the employer if to do so would constitute an unlawful
  act or omission. The above general labour law regime is followed by individual sectoral
  laws (1 ) and the Civil Servants Act (Official Journal of the Republic of Slovenia,
  No 63/07-UPB3, 65/08, 69/08-ZTFI-A, 69/08-ZZZavar-E, 74/09 Decree of the US: U-I-136/07-13,
  40/12-ZUJF, hereinafter referred to as the ''ZJU''). Article 94 of the ZJU provides
  for the performance of the work of a civil servant on the instructions and orders
  of a superior. The ZJU regulates the performance of work under instructions and
  orders in more detail than the ZDR, taking into account the specificities of work
  in State bodies and local authorities. Particular attention is paid to the issue
  of conduct in the event of an employee''s assessment that the execution of an order
  or instruction would be unlawful. (1)E.g. Act on the Duties and Powers of the Police
  (Official Gazette of the RS, No 15/13) at 5. "(1) A police officer shall perform
  a police task or use police powers pursuant to: - an official duty, - an order of
  the head of the police, - an order of a court, a public prosecutor or another authority
  authorised to do so by a special law.(3) A police officer shall refuse to execute
  an order or warrant if it is obvious that he would thereby commit a criminal offence.
  The police officer shall immediately inform the internal organisational unit of
  the police responsible for internal security or another competent state authority
  of the refusal. A police officer who refuses to comply with such an order or warrant
  shall not be penalised in any way.". Pursuant to Article 94(1) of the Law on the
  Protection of the Rights of the Servants of the European Communities, a public servant
  must comply with the instructions of his superior, except in cases where he is not
  bound by law to comply with the instructions of his superiors. This means, in particular,
  the conduct of administrative proceedings and the taking of decisions in administrative
  matters. As an official, an official who is authorised to conduct proceedings or
  issue a decision ''shall independently carry out actions in administrative proceedings
  and, in that context, shall establish the facts and circumstances and, on the basis
  of the established facts and circumstances, shall apply the regulations or general
  acts issued for the exercise of public authority'' (principle of independence of
  decision-making, Article 12(2) of the General Administrative Procedure Act). This
  means, in particular, that he cannot be ordered by a superior as to how he should
  decide a particular case. It is also important to add that the principle of legality
  under Article 8 of the Law on the Functioning of the European Union, under which
  a civil servant performs public tasks on the basis of legal acts, also applies.
  A public servant cannot perform a public task unless he has a proper legal basis
  for doing so in the form of the Constitution, a law or a regulation. The decision-making
  and conduct of civil servants in State and local authorities is regulated by law,
  and the principle of legal binding (i.e. being bound by legal acts) is the most
  important principle of the functioning of public administration. Therefore, a public
  servant is not obliged to carry out his/her duties if his/her superior gives him/her
  an order or instruction which would give rise to unlawful conduct. Under Article
  94(2) of the Staff Regulations, a civil servant has the right to request a written
  instruction or order if he considers that the content of an oral instruction or
  order is unclear. The possibility of requesting a written instruction or order has
  a double meaning - it enables the civil servant to obtain a clearer and unambiguous
  instruction and also makes it easier for him/her to consider it. For the superior,
  the written form makes it easier to record instructions systematically and to monitor
  the results. The provisions of Article 94(3), (4), (5) and (6) of the Staff Regulations
  deal with the problem of unlawful instructions and orders.  The ZJU gives civil
  servants the right or duty to refuse to carry out such tasks which would be contrary
  to laws and other regulations (unlawful conduct or criminal offence). A civil servant
  may not carry out public tasks which have no basis in the regulations, nor may others
  (his/her superiors) require him/her to act in breach of the regulations. We would
  also like to point out that the Integrity and Prevention of Corruption Act (Official
  Journal of the Republic of Slovenia, No 69/2011-UPB2, hereinafter: ZIntPK), which
  sets out measures and methods to strengthen integrity and transparency, to prevent
  corruption and to prevent and eliminate conflicts of interest, in order to strengthen
  the functioning of the rule of law, establishes a legal standard of integrity for
  employees in the public sector. Thus, public servants have a duty not only to refrain
  from any conduct that may harm or be detrimental to the public interest, but also,
  in accordance with their expected performance and responsibility, to do everything
  possible to prevent, even at the level of risk, the use of authority, function,
  power of attorney, or other power of decision and conduct in the field of their
  work contrary to the law, legally permissible objectives and codes of ethics.In
  view of the above, the Ministry does not support the proposal received and considers
  it unacceptable or inappropriate to be considered further.'
Text file: 188.txt
Title: Amendment of the Law on Civil Servants.
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=188
