To amend the provisions of the Law on General Administrative Procedure in so far as they govern the appellate authority's duty to act where the first-instance authority has failed to take account of the appellate authority's position on the correct application of the rules.

Proposal for amendment of the provisions of the Act on General Administrative Procedure (Official Gazette of the Republic of Slovenia No 24/06, 105/06 - ZUS-1, 126/07, 65/08 and 8/10) - hereinafter referred to as 'the Act on General Administrative Procedure' (hereinafter referred to as 'the Act').
A major or major bureaucratic obstacle is the length of administrative procedures. We have a concrete example where a relatively simple procedure has been taking almost five years. It is merely a stroke of luck that in the current economic crisis the client does not need this authorisation to exist. Notwithstanding this, it is unacceptable for authorised officials to behave in this way, causing damage to the economy with unprecedented ease in the current crisis, even though their salaries depend precisely on the functioning of the economy. We are therefore convinced that certain provisions of the rules of the CPA need to be amended and supplemented.
 
In a specific case, we have perceived or felt that the first-instance authority, regardless of the stage of the procedure, claims the right to interpret the rules freely. In doing so, it also claims the right to disagree with the decision of the appellate body, which is unacceptable for the functioning of the rule of law. The fact is that we have a series of vague rules that are open to interpretation in one way or another in relation to a specific case. We also have a series of bureaucrats who have never seen how particular rules play out in practice. As a result, these bureaucrats often interpret individual provisions of the regulations in their own way, to say the least, and on that basis demand all kinds of evidence. We are therefore convinced that, in order to stop this practice, it is also necessary to amend the procedural rules so that the first-instance body will only be able to apply the provisions of the regulations as it sees fit in the first round of proceedings, but will not be able to do so in the second round, as it will be entirely bound by the appellate body's guidelines. However, if the first-instance body does take a different view, the rules should make it clearer that the appellate body is obliged to rule on the merits in such a case and to inform the administrative inspectorate thereof.
 
The current rules of the Code of Administrative Offences regulate the specific cases of appeal proceedings where there is an error of fact, a material breach of the rules of procedure, where the operative part of the contested decision is unclear or contradicts the statement of reasons (Article 251(1)), and an error of assessment of the evidence, in relation to the conclusions drawn as to the facts, or an error in the application of a rule of law (Article 252(1)). They do not, however, cover a combination of all of these cases. The appellate bodies therefore avoid decisions on the merits. However, in view of the multitude of rules which are often unclear in relation to practice, we believe that this area should also be specifically regulated in the rules of the CPL, as it is crucial for the functioning of the rule of law system.
 
The lengthy decision-making process on a specific case is also inevitably linked to the problem of silence on the part of the authority, which is not adequately addressed in the rules of the CPLR in a way that would contribute to shortening the procedure. This is also why, in the face of numerous complaints of implied consent, we have not yet seen a single case where the competent authority has found that there has been implied consent and has decided the case itself. In this respect, we are convinced that, in the light of the substantive rules already in force, this institute should be supplemented accordingly. Furthermore, the rules governing the time-limit for issuing a decision should be supplemented by requiring the authority, after the expiry of the time-limit for issuing a decision, to inform the party in an appropriate manner of the reason for the failure to issue a decision.
 
If, for example, under the provisions of the law on the construction of buildings, it is possible to obtain certain consents by silence on the part of the authority, then this should also apply to simple cases of permits, for example where only the approval of technical documentation is involved. If, for example, in the field of mining, practically all permits have been abolished and these permits have been reduced to the level of certificates, then this practice could be extended to other areas. Why, for example, is it still necessary for the PGI to provide for building permits for the construction of a non-complex building, when this could be more successfully replaced by an abbreviated revision of the project documentation to check compliance with the regulations. In the field of mining, all technical documentation is subject to revision, whereas in the field of construction it is the other way round. The profession is usually better qualified to enforce the rules than the administrative authorities, especially as they are poorly paid officials who are therefore open to corrupt practices. However, there should also be a basis for all of the above in the rules of the CPA.
 
In order to remove the bureaucratic obstacles mentioned above, we propose some concrete additions and amendments to the provisions of the CPA:
 
The current provision of Article 251(3) of the ZUP:
If the second instance authority finds that the deficiencies of the first instance procedure will be more quickly and economically remedied by the first instance authority, it shall annul the first instance decision by its own decision and return the case to the first instance authority for a retrial. In such a case, the second-instance authority shall, by its decision, inform the first-instance authority of the points on which the proceedings must be completed and the first-instance authority shall comply with that decision in all respects and shall issue a new decision without delay and at the latest within 30 days of receipt of the case. The party concerned shall have the right to appeal against the new decision.
 
Proposal for an amended provision of Article 251(3) of the CPL:
The current second sentence should be amended to read: 'In such a case, the second-instance authority is obliged to warn the first-instance authority by its decision as to what the procedure should be supplemented and how to apply the specific provisions of the rules which have been incorrectly applied in relation to the issue which was the subject of the procedure, and the first-instance authority is obliged to comply with this decision and to issue a new decision without delay and at the latest within 30 days of the receipt of the case. If it does not issue such a decision within 30 days, the party concerned shall have the right to appeal against the silence of the decision and the costs of the appeal shall be borne by the authority.
 
Applicable provision of Article 252(1) of the ZUP:
If the second-instance authority finds that the first-instance decision erred in its assessment of the evidence, that an erroneous conclusion as to the facts was drawn from the facts established, or that the legal rule on the basis of which the case was decided was misapplied, or if it finds that a different decision should have been made in the exercise of its discretion, it shall set aside the first-instance decision by its own decision and settle the case itself.
 
Proposal for amendment of the provision of Article 252 of the CPL:
Add a new paragraph 2, which should read as follows:
Notwithstanding the provision of the preceding paragraph, the second-instance authority shall be obliged to resolve the case itself if the first-instance authority has not taken into account its position on the correct application of the legal rule in the re-examination procedure. In such a case, the second-instance authority must also forward its decision to the administrative inspectorate.
The second paragraph of this Article shall become the third paragraph.