Question:

If the provisions of a sectoral law allow the deposition of a request by a person who is not a legal beneficiary or a person characterised as a party (e.g. the employer of a foreigner in the procedure of issuing a visa), what is their position further on in the procedure?

Answer:

Article 42 of GAPA stipulates that a party in the administrative procedure can be any natural person or legal entity under private or public law, which commences a proceeding or against whom a proceeding is commenced. The capability of being a party means being the bearer of rights or obligations which the concrete administrative matter is being adjudicated upon. A party in the procedure can also be a different person, when they display a meaningful legal interest (the so called accessory participant). This person has the same rights and obligations as the party in the procedure, unless otherwise stated by the law.
The sectoral law may regulate the areas of the representation of the party or the active legitimacy for exercising their rights differently, either by allowing for other persons besides the bearer to exercise their rights, or even a different person who is not the legal beneficiary. For example, an application for a permit allowing access to classified information is deposited by the employer and not the person who will be the bearer of the right. Similarly, application for a status of a disabled person (and its related rights) may be filed not only by the disabled person themselves, but also by an appointed doctor. In a similar way the legislation on foreigners allows for application for residential, working, or training permits not only by the foreigner, but also by, for example, the employer or the educational institution. Due to this the time it takes to decide on the adequacy of fulfilment of the requirements is shortened. It has to be emphasized that in all such matters the other person, who is not the bearer of the rights (or obligations), acts on behalf of the party and only for those acts of the procedure, which are explicitly defined by the sectoral legislation (usually only for depositing applications). They are normally not authorised for any further representation during the procedure, such as the act of service or the use of other legal means.
In this specific matter, the residential permit is issued, under the Aliens Act (AA), only to a foreigner bearing the right. They are therefore the only person considered the party, even though the request may be deposited by the employer. The ability of the employer to deposit such requests is granted with the intent of shortening and simplifying the decision process, for which Article 37, paragraph 6, of AA gives the legal grounds for the assumption that there exists an agreement (legal authority) between the employer and their employee, giving the former the right to deposit a request for the later, while at the same time enabling the party to deposit the request themselves via diplomatic counsel or the consulate of the Republic of Slovenia. The Aliens Act gives the employer the mandate to perform other tasks in the procedure on behalf of the foreigner, except for the act of the service of the permit.
In case the bearer of the right is one person (e.g. the foreigner) and the depositor of the request is another (e.g. the employer), the administrative agency must serve the decision (and other acts issued in the preliminary procedure) to the bearer of the right and not the depositor. The reasoning behind this is the exclusive ability of the party to exercise their right for legal protection. It is only when the bearer of the right resides abroad and therefore cannot participate in the procedure that the administrative agency acts in accordance with Article 89, paragraph 4, of GAPA and during the service of the first document, if the absence of the party’s residence in the RS obstructs the procedure, instructs the party to appoint a statutory representative within the instructed time limit. Otherwise the administrative agency appoints a temporary representative for the act of the service.
If the residence of the party is unknown, a special case guardian is appointed based on the act which regulates marriage and family relations. Based on the general rules of GAPA regarding the representative, the bearer of the right can appoint any other person to act on their behalf. There can therefore be, among the representatives appointed by the party, by the sectoral legislation legitimate depositor of the request. In such cases the service is made only to the representative and not the party. The legal means can generally only be exercised by the parties themselves, or by the statutory representative within the boundaries of the given authorization.

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