Question:

When issuing an act by the sectoral statute named »certificate« (e.g. certificate of existence of the permit of use by Article 197 of the Construction Act) is this administrative matter or is this only certificate by the special declaratory proceeding (Article 180 of the GAPA)?

Answer:

When is it considered an administrative matter, taking into account the sectoral statute or not, the GAPA defines with the material definition by Article 2 of the GAPA. This provision provides that administrative matter shall signify deciding upon the rights, obligations or legal benefits of natural persons or legal entities or some other parties in the field of administrative law. Furthermore the provision says it shall be considered that the matter concerns an administrative matter if it is determined by regulation that, with regard to a certain matter, the agency conducts an administrative proceeding, decides in the administrative proceeding and issues an administrative decision, or if such a conclusion follows from the character of matters in order to protect the public interest (formal definition of the administrative matter). If the administrative matter cannot be determined from the procedural signs then we use the material definition of the administrative matter and with it subsidiary use of all the GAPA rules except if the individual procedural issue is regulated differently, when deciding the party’s right or legal benefit in relationship to authority that leads to conflict of the public interest and at least one of the private interest (Jerovšek in Kovač, Upravni postopek in upravni spor, 2010, page 14).

Article 197, Paragraph 4 of the Construction Act (CA, Official Gazette of the RS, 110/2002 and amendments) basically provides, when the permit of use is considered as issued directly by the sectoral statute. Furthermore it defines which agency, usually the administration unit, may on request by the party issue certificate that the object has the permit of use if evidence was submitted with request and if all conditions are met by the act. Subsequently the article explicitly provides which evidence besides certificates and other documents is considered. They are the statements of expert witnesses, witnesses and conduct views of objects in accordance with the regulations that regulate administrative procedure. Therefore special statute defines conducting a proceeding of the special declaratory proceeding. According to the provisions it must be considered that issuing of »certificate« by the sectoral statute, by material definition of the special declaratory proceeding is for the »real« administrative procedure and not only for issuing certificate in terms of the GAPA. (Though by the Article 180 of the GAPA through preliminary conduct of special declaratory proceeding). Whenever it is clear from the diction of the sectoral statute (as in Article 197 of CA-1 including with CA-1A) that the competent agency in procedure must evaluate all the conditions that must be meet through the declaratory proceeding and the taking of evidence in the specific case and consequently establishing the legal consequence. This is deciding on the merits regarding the administrative-legal relationship and it is not only the statement of previously recognized right directly by the act, as it applies for certificate in the spirit of GAPA.

This is administrative procedure, because the party regarding this act as the declaratory decision obtains the right (permit to use) that is otherwise recognized by the statute, however the competent agency in the individual and precise matter must verify true state of facts and reach a positive decision only if this is in accordance with the legal state, considering (potential) collision of interest. Since the sectoral statute clearly establishes legal consequences of the »certificate«, this at least confirms existence of legally recognized operating permit (considered as permit of use). So this kind of »certificate« can be at least a declaratory decision (for more about the difference between the certificates and declaratory decisions see Androja and Kerševan, Upravno procesno pravo, 2006, page 356 and 387). We believe this kind of certificate that is a source of justification regardless of the name of the legislator, by its legal nature or in terms of the GAPA and of the Administrative Dispute Act (ADA-1) is the decision or (substantive) specific and single act.

That the sectoral statute provides for the title »certificate« does not mean, that by its true legal nature this file is only certificate within the meaning of the GAPA, as analogy also applies for other types of acts (e.g. sectoral statute decides on the merit with »order« or »consent«, then this act is within the meaning of the GAPA decision and not process order or consent as annex of the request of the party or consent in the declaratory proceeding and when two or more than two agencies decide upon some matter). The sectoral statute can overrule the GAPA only in the part about the title of the decision (»certificate«) however for this act (e.g. components in accordance with Article 210 of the GAPA including the reasoning and instruction on legal remedies) and for the procedure of its issuing all rules of the GAPA apply. Against the »certificate« the appeal may be filed, other legal remedies and exercise the right to the judicial remedy and particularly on its basis the party draws ascertained or recognized right (use of object).

Because of the superior use of the sectoral statute, this statute can provide different rules than the GAPA, e.g. who has the position of party (so CA-1 in procedure of issuing the permit of use gives the legitimation only to the investor as is followed from the position of the Administrative Court of the Republic of Slovenia in the case IV U 27/2010, although in our opinion the court in this judgment relied on the wrong interpretation saying that »it is possible to obtain permit of use on the basis of the sectoral statute requested documentary files, which means that the statute (substantive regulation) in this procedure does not foresee participation of the accessory participant«.

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