SLOVENIA: new government takes rights from environmental and nature conservation NGOs

Article originally published on Justice and Environment website, 19 May 2020 – accessible here

In the shadow of the coronavirus, the new Slovenian government is taking rights from environmental and nature conservation NGOs.

Anti-coronavirus provisions in Slovenia, which set out to disable environmental and nature protection NGOs in the procedures involving integrated building permits (in which EIA procedure is included), are now transposed in a similar fashion to the Nature Conservation Act but with much larger consequences.

On the last day of this year’s April, the Act Amending the Act on Intervention Measures to Contain the COVID-19 Epidemic and Mitigating its Consequences for Citizens and the Economy was published in Slovenia. The original was supplemented with Article 42, which introduced several provisions into the original law, relating to construction and environmental protection. These specific provisions have no direct effect on coping with the COVID-19 crisis.

What the law stipulates: The law regarding building permits for facilities that have greater impact on the environment (integrated building permit) prevents most NGOs with the status of operating in the public interest for environmental protection and nature conservation from accessing legal funds – entry into the procedures for issuing an integrated building permit for facilities with environmental impacts. The additional conditions required by law for NGOs to participate in the integrated building permit procedure for the current and two years ago are:

for associations – 50 active members (which is evidenced by the regularly paid membership fee by transfer to the bank account of the association and participation in the meetings of members);

for institutions – 3 full-time employees and with a 7th level professional education in the field of NGO operation;

for funding institutions – to have at least EUR 10,000 in assets at all times. Some NGOs that are already parties to the proceedings will be deprived of this position.

The law opens a time window when construction will be allowed in a single-stage administrative procedure (in the integral procedure under the Construction Act, the Ministry of the Environment and Spatial Planning decides), practically without the possibility of “verifying legality regarding environmental and nature protection” and thus starting the construction. The investor will be able to build after the building permit is issued (by delivering the decision to the parties) and not after the legal finality of the building permit, as required by the Slovenian Building Act (when the deadline for filing a lawsuit expires or if the lawsuit is filed when the court confirms correctness of the building permit). These provisions will last for a few months or until the end of the coronavirus crisis.

Situation for the NGOs: according to the national register, 30 NGOs currently have the status of acting in the public interest in the field of environmental protection, and 47 NGOs in the field of nature conservation. According to the existing Environmental Protection Act and the Nature Conservation Act, as well as special rules determining the conditions for status, and the NGO Act, all these organisations must regularly report on their activities to the Ministry of the Environment and Spatial Planning. Most organisations do not meet the new conditions. Out of 77 organizations, we managed to collect data for 56. Only 9 of them meet the new conditions (5 environmental, 4 nature) or in percentage – 16%.

Content of the Law is contrary to the Slovenia Constitution, Article 9 of the Aarhus Convention and Article 11 of the Directive on the assessment of the effects of certain public and private projects on the environment. It inadmissibly narrows and interferes with acquired rights and reduces the protection of legality in the field of environmental protection and nature conservation. Formal conditions that NGOs must meet in order to be involved in integrated building permit procedures are impossible and illegal, since the aforementioned conditions must be met retrospectively – the NGOs must fulfil them in the last 2 years before entering a procedure. All NGOs, which are already in such a procedure, have lost their legal position in those procedures. Three NGOs, that are losing their rights and thus have the legal interest, have filed a complaint to the Constitutional Court and J&E member, the Legal-Informational Centre (PIC), has prepared the complaint.

On Tuesday, the 12th of May, there has been a further negative development in the field of narrowing the rights of nature conservation NGOs (for those, which according to existing national provisions have the status of working in public interest in the field of nature conservation). The current government has, despite the public protest in front of the Slovenian Parliament and several thousands of email sent to members of the Parliament, proposed and adopted a new amendment, which imposes the same conditions as mentioned above, in the Nature Conservation Act. In this case though, these conditions must be fulfilled in order to gain and retain the status of working in public interest in the field of nature conservation. This status in Slovenian law, according to the existing Nature Conservation Act, enables all such NGOs to defend the interests of nature in all administrative and court proceedings. By imposing such harsh and unreasonable conditions, a vast majority of nature conservation NGOs will lose the right to defend nature in all administrative and court proceedings – by our rough estimation, only 4 nature conservation NGOs meet these conditions.

The amendment proposes that NGOs have 6 months to comply with the new provisions/conditions. After that, the provisions will enter into force and all NGOs who will not be able to comply, will lose their status. Unlike the Intervention Act described above, in this case the provisions have no time limit. The new minister for the environment and spatial planning, Andrej Vizjak, has already publicly announced, that these changes will make their way into the Environmental Protection Act – the fundamental environment protection act in Slovenia.

The Slovenian government has proposed the third Anti-coronavirus Law with anti- and post-coronavirus provisions on the 20th of May. It is expected to enter into force in the week from 25th to 29th of May. The Law stipulates in article 2, that provisions regarding NGOs and the construction processes, mentioned above are to be valid until the end of 2021, which further aggravates the situation.