Question:

How should writings (e.g. invitations, decisions, etc.) be served to a party with a permanent residence abroad and are there any specifics if the service is done to the citizens of the EU? Is it admissible to deliver writings to foreigners directly, with a return receipt (AR), or must the administrative agency follow Article 89, paragraph 4, of GAPA and, when it comes to foreign parties participating in the procedures in Slovenia, demand that they appoint a representative or appoint one themselves (e.g. a co-worker of the official in charge of the procedure)? In what way does the agency perform the service to an active party, a passive party and an accessory participant? What does the clause “when the party is abroad” mean? Is it necessary to translate all the official writings to the language of the foreign citizen?

Answer:

Article 92, paragraph 2, of GAPA stipulates that natural persons and legal entities abroad may be served directly or through diplomatic channels, unless an international treaty provides otherwise. The serving abroad through diplomatic channels is performed through consular representations of the Republic of Slovenia stated in the recipient country, or whose sphere of work includes the recipient country (Jerovšek et al., Zakon o splošnem upravnem postopku s komentarjem, 2004, p. 321). The clause in Article 171, paragraph 3, of DAO states that the envelope for personal service (prescribed blue envelope) is used when such means of service is in accordance with international postal regulations. Otherwise the personal service is done according to international postal regulation which usually means with a return receipt (pink or red AR label) and the service is considered executed on the day of the actual service, that is from the moment the party or their statutory representative signed the receipt, as there is no fiction of service when using the pink AR. The fiction of service exists in the case of personal service following GAPA and using the blue envelope, when the server cannot find the addressee and leaves a note regarding the arrived letter with a warning that after 15 days the fiction of service is in order, even though the service was not actually executed (it would be a fictional and not actual service), but the party has been informed of such in the note of the arrived letter. On the contrary when serving abroad and using a pink return receipt we have to take into account the actual time of the service of the writings.
The participation of persons with a permanent residence abroad causes problems with invitations and with that the participation in the procedure, which is against the principles of protection of rights of the party and public benefit and the economy of proceedings. For that reason every party who permanently resides abroad and exercises any legal right in the Republic of Slovenia must have an authorized person with a residence in Slovenia, if they cannot for whatever reason personally participate in the procedure, as is stipulated by Article 53 of GAPA. This clause of GAPA is chronically usable before the phase of service; it is therefore used primarily if, for example, the party who permanently resides abroad sends a request for the commencement of the procedure by mail. The agency must demand an appointment of an authorized person with a residence in Slovenia, but only if the party cannot personally participate in the procedure. The quoted clause should ensure an unhampered cooperation of the party (after their authorized person; see Breznik et al., Zakon o splošnem upravnem postopku s komentarjem, 2008, str. 218). Considering the description of the circumstances of the actual case, the immediate appointment of the authorized person is not necessary, if it is true that the declaratory and evidentiary procedure can be done remotely, that is without the physical presence of the party or their authorized person before the agency or the official in charge of the procedure. The latter also depends on the type of the declaratory procedure, as it is common in the case of a special declaratory procedure (after GAPA), that the personal statement (and not a written one by mail or through legal aid through other agencies) is essential for the implementation of the principles of substantive truth and the examination of parties.
Along with the stated GAPA also additionally stipulates, that a party who is abroad and does not have an authorized representative in Slovenia be instructed, after Article 89, paragraph 4, of GAPA that they appoint, within the specified time limit, a representative at least for the acts of service, otherwise the authorised person or a temporary representative (may also be a co-worker of the official in charge of the procedure) will be appointed for them by the agency. It is considered that the service of the document to the authorised person is the service to the party, following the same goal as defined earlier - to achieve the quickest closure of the procedure and with it the final execution of the rights of the party and the public benefit. If there is a need for communication with the party during the procedure, either because the state of facts is unknown or the statements of the party and the findings of the agency do not match, an immediate appointment of the authorised person is required at the first contact of the agency with the party. That enables a quicker progress of the procedure further on, allowing the decision to be made within the optimal time frame, and nonetheless enabling, as quickly as possible, the legal protection of the party.
In case the procedure is commenced on the request of the party living abroad, and the appointment of the authorised person is not required, the agency may generally conduct the entire procedure without a direct service of the documents during the procedure. They should however perform the service of the final decision (recognition or rejection of the exercised right) to the party abroad. If the decision represents the first act with which the agency directly communicated with the party, due to the procedure progressing without any issues and the agency taking into consideration Article 53 of GAPA (the agency determines that the party may cooperate from abroad or there is no need for them to directly, that is in person, cooperate in the procedure), we believe that strict proceeding after Article 89 of GAPA, to the point of the presumed closure of the procedure (if the request is granted), the requirement of the appointment of the authorised person is nonsense.
Within GAPA all foreigners are equal regardless of their citizenship of the EU or of other third countries.
Regarding the rationality of the appointment of the official as a temporary representative or an authorized person for the act of the service (see Article 89, paragraph 4, and Article 51 of GAPA) it is worth emphasizing that the status of the temporary representative or the authorized person does not only mean redirection of the mail to the party, but the appointee must also act on behalf of the party and in their legal interests (as their “attorney”). We would also like to stress, with regards to the appointment of the temporary representative that it is only allowed when it is in the interest of the party or the public benefit that a certain procedural act must be urgently executed. This institute therefore cannot be used for acts of service, unless there is a reason justifying urgent measures in the public benefit (see Article 114, paragraph 1, subparagraph 4, of GAPA). Regardless of that the party, their statutory representative or guardian, needs to be immediately informed. In accordance with Article 89, paragraph 3, of GAPA the agency may appoint an authorized person for the act of service for the party, if they or their legal representative are abroad and do not have an authorized person in the country and do not appoint one within the time limit determined by the agency. The authorized person for the act of service is not a statutory representative of the party but a person authorised only for receiving documents, which should otherwise be served to the party (Jerovšek et. al., Zakon o splošnem upravnem postopku s komentarjem, 2004, str. 210). However under Article 89, paragraph 6, of GAPA the authorised person for the act of service has the right to use legal means, if they are unable to deliver the document to the party, and that would result in the party passing the time limit. We believe that because such a case would represent a collision of interest between the agency, which issued the act, and the interests of the party filing legal means challenging it, that the official of the agency cannot appoint one of their co-workers as the authorized person for the act of service.
We believe that after Article 89 of GAPA with regards to the procedure of service the same applies for both active and passive parties - in case they (or their statutory representative) are abroad during the service of the first document, they are instructed to appoint, within the instructed time limit, a statutory representative or an authorized person for the purpose of the service, and to warn them that failing to do so would result in the appointment of the representative by the agency.
The same is also true for accessory participants. The cooperation of the accessory participant must be, by the virtue of the office, ensured by the agency running the procedure; otherwise the basic principle of examination of parties is broken. The agency achieves this by inviting the accessory participant, in the same way as the main party, to all the actions of the procedure and by serving them all of the dispatched acts (Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, str. 92). In the case of service the accessory participant is treated the same as the main party, therefore they too must appoint a statutory representative for the act of service, otherwise the agency appoints one for them.
The provisions of Articles 53 and 89 of GAPA on the matter of the meaning of the phrases “the party is abroad” or “permanently resides abroad” are extensively interpreted, therefore they are not only used if the party has a permanent residence officially registered abroad or if they are a foreign citizen. Is used with consideration to the purpose of the provisions that is the direct communication between the agency and the party, therefore the whereabouts abroad must be assessed factually and not legally. The norms on the matter of GAPA are therefore used even if the party stays abroad during the procedure (i.e. is vacationing), even though their residence is registered in Slovenia. The citizenship of the party or their official residence is not applicable; what matters is the actual absence and therefore inaccessibility of the party by the agency. For that same reason GAPA is also not in accordance with the dictions of the act regulating the registration of residence, and uses phrases such as “lives permanently (de facto!) abroad”. GAPA does not define when the residence abroad is permanent or temporary, the phrase is used as undefined and needs to be defined on a per case manner.
Decisions sent abroad must also be written exclusively in Slovene language (see the article “Question of Documents Translation” for more about that topic).

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