Question:

Administrative agency recognized the right to the party, i.e. exemption of payment of certain obligations (e.g. customs charges) on the basis of the request of the party and in accordance with the conditions determined by sectoral statute. Is the agency according to the provision of the Article 224 of GAPA about the execution dealing with it properly when they execute the recognized right to the party before serving it (so that they account the erase of the claim of the obligation on the day the decision on the remission is reached, this is on the day the decision is dispatched and not on the day when party accepts it or on the day the decision is served; thereby avoiding that the claim after being served would already be overdue for payment and the party would pay it and then a new decision for the reimbursement of charges would have to be issued)? Must the (accounting) right be executed when the decision is served? If so, how shall we avoid the problem of the required reimbursement of early fulfilled obligation by the party?

Answer:

Executability means state of law that is acquired by the individual decisions or other executable titles. So executable become decisions upon obligations and also the decisions upon rights. In the first case this means that the party can or even must be forced to execute the obligations from execution onwards (first day after the expiration of the partition time limit when the proceeding of the execution is carried out) and in the second case we talk about execution on the day when the party can draw the right. Undoubtedly all positive decisions become executable and change the legal position of the parties. We must distinguish the beginning of the executability from execution of a decision (Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, page 320). Executable become not only acts in which the public interest demands their forcible execution but also acts or in them recognized rights and legal benefits when the act cannot be challenged anymore by the appeal or with serving if the appeal does not stay their execution. Executability must be understood as a moment from which onwards the right or the obligation is possible to exercise.

Executability by the GAPA shall as ruled occur at the same time as the completeness of the decision (Article 224, Paragraph 2 of GAPA), unless if by GAPA itself (Article 236 of GAPA) or by the sectoral statute, to whom the GAPA is superior, is not for example defined, that the appeal does not stay the execution of a decision and becomes executable on the day of service, therefore before the completeness. The statute can also provide, that executability occurs later as completeness and namely by the GAPA if they are decisions upon obligations – this decisions become executable only with the expiration of the partition time limit (Article 224, Paragraph 4 of GAPA). Similarly the sectoral statute can bind executability on the finality of decision (e.g. building permit, invalidity pension).

For now there is no case known, where the sectoral statute would provide occurrence of the executability before the decision is served because the decision has its effects towards party only with its serving. Also in this case (customs charges) the sectoral statute (customs statute of EU) does not have that kind of provision. Being served is the condition for occurrence of externalities of the act of agency and therefore its completeness, finality and executability (after Androjna in Kerševan, Upravno procesno pravo, 2006, page 227-228; this also applies for termination of the appeal, which is exceptionally possible before serving, but even then decision shall take effect with it being served). Decision that was not served to the party legally does not exist and because of that it does not bind the party and the agency that formulated the content of the decision, nor does it give the legal basis for the recognized justification. Decision or act is considered issued only when it is being served to the (last) party and never on the day it is being dispatched. Even if sectoral statute (e.g. statute that regulates tax procedure) binds fiction of being served on the day it is being dispatched, there is time limit that must run out, for the occurrence of the fiction of being served (e.g. 15 days).

We believe that the provision of the sectoral statute and described practice of the administrative agency regarding execution of the right or executability of the decision before the day of being served to the party would be contrary to The Constitution of the Republic of Slovenia regarding right to legal remedies (Article 25 of The Constitution of the Republic of Slovenia). By the GAPA the purpose of (effective) appeal for most of the parties is in the stay of the execution. Exceptions are possible if statute provides differently, usually with the goal of public interest but in proportion (rationally) because non-suspensive means particularly with obligations a lower level of protection of the interests of the parties. However definition of executability before the use of the legal remedies is constitutionally consistent only exceptionally but still not before serving the decision which is being challenged with legal remedies.

Before serving the decision (on right or obligation) there is no legal ground for its executability (or accounting write-off charges of the party). That is possible by serving the decision if by sectoral statute or Article 236 of the GAPA disposition contains a clause that the appeal does not stay the execution of a decision or if the party terminates the right to appeal and the consequence of this is immediate occurrence of executability of the decision with serving (but not before).

The right of remission of the obligation party obtains at the most early with served decision on recognized right, therefore at fulfilment of the obligation (paying charges) before that we cannot talk that the fulfilment was unjustified. If the party settles the obligation before the decision on remission of obligation is served, agency must in accordance with sectoral statute conduct new proceeding regarding reimbursement of the subsequent exempt of the obligation. There is no other legal way or shortcut.

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