Performance of the regular duties of the Prime Minister and ministers pursuant to Article 115 of the Constitution of the Republic of Slovenia
There are several situations where the Prime Minister or one or more ministers at the same time cease to hold office, namely if a vote of no confidence is passed (Article 116 of the Constitution), if a vote of confidence is not passed (Article 117 of the Constitution), in the event of their resignation or dismissal and every time a new National Assembly convenes following elections. Article 115 of the Constitution charges the Prime Minister and ministers with the power and duty to "perform their regular duties" until the election of a new Prime Minister or until the appointment of a new minister or ministers. As the concept of regular duties is not specified in detail anywhere in the Constitution, this constitutional provision must be interpreted in the spirit of its purpose, particularly as regards the main responsibilities entrusted to the holders of such offices under the Constitution and legislation.
Below is our understanding of regular duties by segment that fall within the Government's or the ministers' purview:
Projects concerning new acts and proposed acts already before the National Assembly when the limitation to regular duties is imposed
One of the key responsibilities of the Government and individual ministers or ministries within it is drafting proposals for new acts or amendments/supplements to existing acts. Proposing new acts (as well as making substantial changes to existing acts) and submitting them to the National Assembly is undoubtedly beyond the concept and substance of regular duties pursuant to Article 115 of the Constitution. With proposed acts, the Government implements its policies and the policies of the administration under its management, which, under the Constitution, certainly falls within the Government's responsibilities and powers that cannot be performed when its operation is limited to performing regular duties. This clearly means that, in principle, the Government cannot adopt projects concerning new acts and submit them to the National Assembly for further consideration in the legislative procedure while it is limited to performing its regular duties. An exception to this rule is explained below.
In performing its regular duties, the Government can propose new acts on matters that, by their very nature, cannot be defined as policymaking in terms of party programmes and that, at the same time, cannot be delayed, e.g. natural disasters or other similar situations that require swift and immediate legislative intervention. Such necessary acts are also given priority treatment in the Rules of Procedure of the National Assembly. In view of this, we believe that a Government performing its regular duties must also take all necessary action in order to prevent any consequences for the state's operation that would be irreparable or difficult to rectify. In this context, we believe that there should not be any obstacles to Government intervention with proposed acts in order to prevent the aforementioned consequences. We believe that the same applies to any changes to the valid budget if a change of circumstances requires such action to be taken in order to prevent consequences for the state's operation that would be difficult to rectify. However, the Government must first examine if the change of circumstances could not be remedied some other way within the possibilities afforded by public finance regulations.
A somewhat less restrictive interpretation can be used for acts required for the harmonisation of our legislation with European Union law. In our opinion, the Government may put before the National Assembly any acts that are necessary to ensure a timely transposition of European Union law into the legal order of the Republic of Slovenia or are necessary to ensure a timely and correct implementation of European Union law. Nevertheless, the Government should not open any issues that are not related to the aforementioned actions or further redefine projects with a policymaking effect in a particular area.
As regards the proposed acts that are already before the National Assembly when the limitation to regular duties is imposed, it should be noted that they were adopted when the Government was still fully functional, without its operation being limited to performing its regular duties. This means that the Government and the ministers representing it can present and explain a previously-adopted Government-proposed act, i.e. "defending", in this sense, something previously adopted before the competent bodies of the National Assembly and the National Assembly itself. Such tasks, particularly highly specialised tasks, for which substantive decisions had already been made before this situation arose, do not exceed the performance of regular duties under the Constitution.
A special issue concerning law-making projects is proposing Government amendments. The same should apply mutatis mutandis as for (not) proposing new law-making projects.
Adopting and issuing regulations (ministers and the Government)
Implementing regulations for which the Constitution provides that, due to their legal nature, they cannot be issued without a legal basis for such an implementing regulation in law and certainly cannot be issued outside such legal requirements and framework, must be divided into two groups as regards the constitutional provision on the performance of regular duties:
a) regulations whose issuing was expressly envisaged and determined in a particular act, meaning that issuing them constitutes a predefined, act-enforcing duty (explicit authorisation determined by an act) of the competent body (the Government, minister);
b) regulations that the competent body (the Government, minister) issues at its own discretion when it deems it necessary in the case at hand in order to enforce a particular act (general authorisation from the Government of the Republic of Slovenia Act and the State Administration Act).
Looking at specific types of cases, we believe that the first group of regulations issued based on an explicit authorisation determined by an act should be divided into newly-issued implementing regulations (governing a previously unregulated matter) and implementing regulations changing the existing regime. The first cluster of regulations represents a statutory obligation of the Government or minister that was envisaged and made into law upon the act's adoption. Issuing such regulations is therefore considered as performing regular duties within the meaning of Article 115 of the Constitution. However, if a particular matter is already regulated and the statutory obligation of the body competent for issuing a particular implementing regulation has thus already been met, making changes to such a regulation or issuing a new regulation on the same basis does not necessarily fall within the scope of regular duties. In such cases, it would be appropriate to make a substantive assessment as to whether such a change is necessary or required from the point of view of the smooth operation of the state and its subsystems or the smooth implementation of legislation or whether it means introducing new policies and starting major and important activities not necessary for the state's operation. Making changes to an implementing regulation or issuing a new implementing regulation that would replace the regulation governing the same social relationship in its entirety therefore falls within regular duties; however, reasons as to why issuing this regulation is necessary or required must be provided.
Issuing the second type of implementing regulations represents, to a certain extent, independent decision-making, which, however, must remain within the scope and basis of the law, and thereby raises the possibility of a relatively free determination of a policy's substance, albeit only on the level of its implementation. We believe that these types of regulations are, in principle, not permissible within the scope of regular duties; nevertheless, such a regulation could be issued if this was clearly dictated and required for the purpose of legal protection by addressing technical, safety or other concerns based on the act with an implementing regulation regarding specific issues. The permissibility of adopting these other types of implementing regulations thus requires a concrete, substantive consideration of the case at hand to establish if such a regulation could be considered to fall within the scope of regular duties.
In our opinion, there should not be any obstacles for the Government and ministers performing their regular duties (provided that an appropriate legal basis exists) to issue such implementing regulations as are necessary to ensure a timely transposition of European Union law into the legal order of the Republic of Slovenia or are necessary to ensure a timely and correct implementation of European Union law.
HR and other issues
The ministers have the principal powers to propose and the Government has the principal powers to reach decisions regarding HR issues, appointments, dismissals, replacements, etc. According to the legislation, the appropriate and prescribed professional competence as well as work experience and similar professional and work references are considered relevant for positions within the HR purview of the ministers and the Government. Legally speaking, the limitation to regular duties should therefore not pose an obstacle to continuing the regular performance of all of the Government's and ministers' work when it comes to resolving day-to-day HR issues and staffing specific positions. According to the case law (Order of the Supreme Court of the Republic of Slovenia Ref No. X Ips 280/2009 of 1 June 2010), the concept of regular duties from Article 115 of the Constitution is an open constitutional law concept that should be understood in the sense that, during this time, the Government or the minister makes only the necessary decisions, does not start any new or major activities, does not reach any final political decisions other than those necessary for the state's operation, and that should be interpreted restrictively. Thus, according to the case law, the assessment of whether the case at hand involves a regular HR issue should, in particular, look at if and why the decision in this case is necessary for the needs of the state's operation (the Office believes that this includes the state itself, state bodies and other organisations, the HR issues of which fall within the competence of the Government or the minister). The Office therefore believes that HR decisions ensuring the continued operation of the state and its organisations or systems are permissible. A similar conclusion regarding the extent of regular duties that pertains to a different case was also reached in Judgment of the Administrative Court of the Republic of Slovenia Ref. No. I U 606/2013 of 26 September 2013.
The period during which the Government performs only its regular duties can, in no way, mean that the Government's and the ministries' regular work comes to a complete standstill; instead it should be ensured that the Government and the state operate in a completely normal manner. The main purpose of the limitations represented by regular duties is that, during this time, the Government should not take on new legislative projects, introduce new policies, adopt new strategic guidelines or begin activities that could, in any way, suggest an abuse of power. In line with the restrictive interpretation of regular duties, the Government may perform duties that are necessary to ensure the smooth operation of the state and its subsystems while it performs its regular duties. In so doing, it should, however, avoid any activities that depart from its normal everyday work.
We propose that the above be considered a recommendation when determining the regularity of a decision on whether a particular matter falls within the scope of regular duties. The decision-making process should include a careful consideration of whether such a decision is well-founded and clearly state the reasons establishing whether a particular decision falls within the scope of regular duties and why.