Administrative Contract in Administrative Matters - Slovenian Law in Comparative Perspective

• Author: Katja Štemberger Brizani
• Position: University of Ljubljana
• Pages: 153-167

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

ADMINISTRATIVE CONTRACT IN ADMINISTRATIVE

MATTERS: SLOVENIAN LAW IN COMPARATIVE

PERSPECTIVE / Katja Štemberger Brizani

Assist. Prof. Dr. Katja Štemberger

Brizani

Department of Administrative Law

Faculty of Law

University of Ljubljana

Poljanski nasip 2

1000 Ljubljana, Slovenia

katja.stembergerbrizani@pf.uni-lj.si

ORCID: 0000-0003-0727-8622

Abstract: Administrative contracts are also known in Slovenian

law, where they are mainly used as an instrument to regulate in

more detail the (previously issued) administrative act, and

generally cannot replace the issuance of an administrative act.

Namely, the General Administrative Procedure Act only provides

for settlement between parties with opposing (private law)

interests. However, the elements of administrative contracts as

an ADR mechanism can be found in other (sectoral) legislation,

but are often very deficiently regulated, leading to the application

of private law rules that govern contractual relations and which

are not adapted to administrative law relations. Given all the

advantages of alternative dispute resolution and shortcomings of

the current legal framework, Slovenian law should also – while

respecting all the specific features of administrative decision-

making and following the example of selected comparative-law

regimes – systematically regulate subordinate administrative

contracts (replacing administrative acts), at least for some

administrative matters. They should be limited only to those

areas of administrative functioning where the administration has

a certain margin of discretion in determining the content of the

decision on the administrative matter. This means, on the other

hand, that the possibility of a subordinate administrative contract

should normally be excluded in the case of legally binding

decision-making since the content of such a decision is

predetermined and the administrative authority is bound by it

(principle of legality). However, the administrative authority must

have a specific power to conclude such a contract in a (sectoral)

law – a general power to conclude subordinate administrative

contracts is not sufficient due to the risk of infringing the principle

of equality and legality.

Submitted:

24 August 2023

Accepted:

08 February 2024

Published:

07 July 2024

Key words: ADR; Administrative Law; Administrative Contracts;

Slovenian Law; Principle of Legality; Public Interest

Suggested citation:

Štemberger Brizani, K. (2024). Administrative Contract in

Administrative Matters: Slovenian Law in Comparative

Perspective. Bratislava Law Review, 8(1), 153-168.

https://doi.org/10.46282/blr.2024.8.1.717

1. INTRODUCTION

Traditionally, administrative relations have been governed by (unilateral) acts of

administrative authorities in which the individual, as the addressee of such an act, has

had no opportunity to participate. However, with the (still ongoing) process of