Area: Poslovni SOS
Competent authority: MOP
EZU URL: .nan
Initiative ID: 518
Initiative accepted and completed: '2015-04-16'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-03-30'
Initiative published: '2015-03-30'
Initiative submitted: '2015-03-25'
Response from the competent authority: "COMMUNICATION FROM THE Ministry of the Environment\
  \ and Spatial Planning: we have informed the Ministry of the Environment and Spatial\
  \ Planning of a communication from a user who has subsequently provided us with\
  \ documentation showing that she has been fined for an offence under Article 34(1)(12)\
  \ of the UNCRC. We were therefore only able to highlight that case from the point\
  \ of view of examining the appropriateness of the legal regulation as regards the\
  \ proportionality of the setting of a minimum fine for an offence in relation to\
  \ the gravity of the offence. Article 34 of the Real Estate Brokerage Act provides\
  \ that a real estate company shall be liable to a fine of between EUR 12,500 and\
  \ EUR 250,000 for an offence if it:1.provides real estate brokerage services contrary\
  \ to Article 3 of this Act;2.charges a fee for real estate brokerage contrary to\
  \ Article 5 of this Act;3.fails to insure liability for damages in accordance with\
  \ Article 6 of this Law;4.the written contract on real estate brokerage does not\
  \ contain all the elements referred to in Article 13(4) of this Law;5.fails to lay\
  \ down general terms and conditions of business and fails to comply with Article\
  \ 15 of this Law;6.advertises in violation of Article 16 of this Law;7.fails to\
  \ ensure the protection of the principal's interests in accordance with Article\
  \ 17 of this Law;8.does not provide for the protection of the principal's interests\
  \ in accordance with Article 17(4) of this Law;9.does not provide for the protection\
  \ of the principal's interests in accordance with Article 17(4) of this Law;10.\
  \ 8.does not ensure impartiality in real estate brokerage in accordance with Article\
  \ 20 of this Law;9.does not warn the principal in writing about the conflict of\
  \ interests referred to in Article 21 of this Law;10.does not identify any material\
  \ and legal defects in the real estate, does not identify the actual and legal condition\
  \ of the real estate and does not warn in writing about the identified or potential\
  \ defects pursuant to Article 23 of this Law;11.does not provide the principal with\
  \ the information referred to in Article 21 of this Law;12.does not provide the\
  \ principal with the information referred to in Article 21 of this Law;13.does not\
  \ provide the principal with the information referred to in Article 21 of this Law;14.\
  \ 11.the document referred to in Article 24, paragraph 1 of this Law is not drawn\
  \ up by a university-graduate lawyer; 12.a fee for mediation is requested in violation\
  \ of Article 25 of this Law.We have asked the Ministry of Environment and Spatial\
  \ Planning to consider its position/explanations regarding the subject legal regulation\
  \ or the possibilities for its amendment.2RESPONSE FROM THE MINISTRY OF ENVIRONMENT\
  \ AND SPACE:With regard to your proposal concerning the amendment of Article 34\
  \ of the Law on Real Estate Brokerage (ZNPosr, Official Gazette of the Republic\
  \ of Slovenia, No. 72/06, 49/11), in the part that sets the minimum fine for an\
  \ offence committed by a real estate company, we would like to reply as follows:Article\
  \ 34 of the ZNPosr imposes a fine in the range of \u20AC12,500 to \u20AC250,000\
  \ for an offence committed by a legal person - a real estate company. Please note\
  \ that in your case the amount of the minimum fine is excessive and totally disproportionate\
  \ to the offence committed, as has been pointed out to us on several occasions.\
  \ The Ministry of the Environment and Spatial Planning is grateful for such initiatives\
  \ and will certainly consider the possibility of lowering the minimum fine for offences\
  \ committed by real estate companies when the legislation on real estate brokerage\
  \ is amended (which is not foreseen this year). 3. TIRS' POSITION:We have also asked\
  \ the Market Inspectorate of the Republic of Slovenia (TIRS), as the enforcer of\
  \ the regulation, for its position on the entrepreneur's communication in order\
  \ to take further action on the perceived problem and thus on the impact on the\
  \ possible amendment of the Law on Real Estate Brokerage in the part related to\
  \ the criminal provisions.  We received the following position from the TIRS: \"\
  The Market Inspectorate of the Republic of Slovenia has been monitoring the Law\
  \ on Real Estate Brokerage since its entry into force in 2003. However, the Market\
  \ Inspectorate of the Republic of Slovenia has been the offence enforcement authority\
  \ since 2005, when it has also been imposing sanctions in accordance with the provisions\
  \ of the Offence Act, and we therefore have data on the offence decisions since\
  \ 2005 at our disposal. From 2005 up to and including 4 May 2015, 21 infringement\
  \ measures have been issued for infringements of Article 25 of the Real Estate Mediation\
  \ Act. Due to the nature of the infringement, inspections under that Article are\
  \ mainly carried out on the basis of reports from users of real estate mediation\
  \ services. In 2003, when the Law on Real Estate Brokerage was adopted, the real\
  \ estate market was very lively, real estate prices were high and, consequently,\
  \ the earnings of real estate companies were also high, and the fines were therefore\
  \ adapted to the market situation at that time. However, since the situation has\
  \ since changed to a large extent, as property prices have fallen significantly,\
  \ property turnover has fallen sharply and many property companies have gone out\
  \ of business, we believe that the fines imposed are too high and that it would\
  \ certainly be sensible to consider reducing at least the minimum level of the fine,\
  \ not only for this offence, but also for the other offences provided for in this\
  \ law. In comparison with the fines set out in the regulations under the jurisdiction\
  \ of the Market Inspectorate of the Republic of Slovenia, it can be said that the\
  \ levels of fines set out in the Law on Real Estate Brokerage are significantly\
  \ different from the levels of fines set out in other regulations.\" MJU NOTE: We\
  \ have already forwarded the above mentioned clarification to the MoI for its comments,\
  \ and at the same time we have also proposed the inclusion of the measure with the\
  \ proposed title: Reduction of the (minimum) prescribed rates of fines for all offences\
  \ prescribed in the Law on Real Estate Brokerage in the Single Document for Ensuring\
  \ a Better Regulatory and Business Environment (ED), which presents the commitments\
  \ of the Government of the Republic of Slovenia with concrete definitions of measures,\
  \ proposed solutions, promoters and deadlines for their implementation. The measures\
  \ are unified and derive from eleven strategic documents, which are grouped in a\
  \ meaningful way in sixteen areas, pursuing the objective of creating a better business\
  \ environment and raising the competitiveness of the Slovenian economy. Reporting\
  \ is also standardised across all documents, with reports on the implementation\
  \ of the single document being submitted to the Slovenian Government three times\
  \ a year."
Text file: 518.txt
Title: Market inspection decision
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=518
