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In the editorial board of journal Pravnik, we strive to ensure that different areas of law are represented in individual issues of the magazine, while at the same time, the criteria for publication in an individual issue is also the topicality of the discussed topic.

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Number 1-2/2023

The European Rechtsstaat

The rule of law is not only a constitutional principle, a set of constitutional guarantees, an extension of fundamental rights and an independent judiciary. The rule of law is also part of a culture, or more precisely a specific legal culture. There may be comparable legal standards in the constitutions of other parts of the world, but just as there is a "European way of life”, there is also a "European culture of rule of law”. It is supported by the state authorities in the separation of powers of a democratic state. In individual Member States, the struggle for this culture is often arduous and fierce. A return to the roots of the European rule of law in Roman law, as well as in German-speaking Central Europe and Anglo-Saxon law, can provide a compass to help overcome the crises.

Key words: Rechtsstaat, Europe, European Union, rule of law, constitution, constitutional guarantees, human rights, democracy.

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Obligation of the Supreme Court to Refer Questions for a Preliminary Ruling

The preliminary ruling procedure before the Court of Justice of the European Union (CJEU) is one of the main mechanisms for ensuring the uniform appli- cation of European Union law. The article examines how the Supreme Court, as the highest court in the country, deals with issues of application of European Union law at various stages of the revision process and how is this considera- tion reflected in case law with a focus on administrative dispute cases. The ar- ticle discusses the latest developments in case law (and open questions), also taking into account the recent precedential judgement of the CJEU in the case C-561/19 Consorzio Italian Management of 6 October 2021. It also highlights dilemmas and concerns raised by the recent decision of the Constitutional Court in the case Up-1133/18 of 31 March 2022. In its decision the Consti- tutional Court instructs the Supreme Court, in cases where revisions are not admissible, to give reasons as to why it did not refer a case for a preliminary rul- ing based on a party’s motion. According to the existing established Supreme Court case law, a preliminary question cannot be referred to the CJEU in the decision-making process on the admissibility of revision. The article represents the point of view that in the given circumstances the decision of the Supreme Court to refer a preliminary question to the CJEU regarding the compatibility of the existing regulation of admissibility of revision with the requirements of European Union law was well founded.

Key words: preliminary ruling procedure, admissibility of revision, European Union Law, Revision procedure, Constitutional Court, Court of Justice of the European Union.

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University of Ljubljana Faculty of Law’s Team – the Most Successful Delegation at UCYMUN

From 31 March to 2 April 2023, the University of Cyprus hosted the interna- tional Model United Nations Conference – UCYMUN, which was attended for the first time this year by a delegation of 12 students from the University of Lju- bljana’s Faculty of Law: Lovro Bobnar, Mark Jeršič, Marta Lipovec, Benjamin Nahtigal, Jasna Nuhanović, Peter Pollak, Rok Šarić, Gal Veber, Metka Vodušek, Ema Voje, Anže Zalaznik and Maks Zupančič. The team was mentored by Prof. Dr. Vasilka Sancin and Assoc. Prof. Dr. Maša Kovič Dine. The conference was held in English and the delegates participated in simulations of six conference committees: the UN Security Council, the UN Human Rights Council, UN Women, the European Parliament’s "Special Committee on Beating Cancer”, the European Parliament’s "ITRE” Committee (Committee on Industry, Re- search and Energy) and the International Court of Justice in The Hague. The delegation from the University of Ljubljana’s Faculty of Law emerged as the most successful team in the competition, garnering six individual awards.

Key words: student competitions, simulations of organs and institutions of international organizations, United Nations, European Union, the Faculty of Law of the University of Ljubljana.

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Faculty of Alumni Club: A Fresh Momentum in 2023

In late March 2023, the University of Ljubljana Faculty of Law Alumni Club conducted its annual general assembly at the Faculty’s premises, utilising both in-person attendance and audio-video conferencing. The president of the as- sociation is academician Janez Kranjc. Goals and tasks of the association are building social links among graduates of the Faculty of Law of the University of Ljubljana among themselves and with the faculty and its teachers and col- leagues; professional and scientific cooperation of graduates of the Faculty of Law with the Faculty; care for the reputation of the legal profession and edu- cation provided by the Faculty of Law, strengthening social ties between the Faculty of Law and its graduates; promotion of legal knowledge in the social environment of the association; contributing to the support of the activities of the Faculty of Law and its students. The reports for 2022 and the work plan for 2023 were approved by the general assembly.

Key words: University of Ljubljana Faculty of Law, society, alumni, report, work plan, 2022, 2023.


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A Revised Comprehensive Scientific Commentary of the Special Part of the Criminal Code (KZ-1)

In Slovenian history, the Criminal Code (KZ-1) has never been scientifically commented on in depth in a large research project. To put it mildly, such a si- tuation was unsatisfactory in terms of legal culture. In 2015, such research was finally undertaken in Slovenia and at the end of March 2019, we got the first scientific commentary of the special part of the Criminal Code. The scientific commentary was written by 47 authors and 33 professional assistants and was published in three volumes, with the main editors-in-chief being Katja Filipčič and Damjan Korošcec, both from the University of Ljubljana, Faculty of Law. More than 3,000 pages were written on 291 Criminal Code articles. Since the first edition, four amendments have been adopted, with interventions in sexu- al and commercial criminal law being among the most theoretically and prac- tically demanding. The first of the three books of the Revised Commentary was thus published in March 2023, and two more will follow.

Key words: criminal code, amendment, Official Gazette of the Republic of Slovenia, Faculty of Law, University of Ljubljana, research, criminal law.

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Konrad Plauštajner (1941–2022)

In September 2022, a prominent lawyer from Ljubljana Konrad Plauštajner, PhD left us far too soon and unexpectedly. He was not only a lawyer, but also a husband, father, lecturer, publicist, arbitrator, that is, a human being and a great expert. He was primarily involved in alternative dispute resolution, in- vestment disputes, construction contracts and FIDIC and he brought a wealth of knowledge, energy and dedication to all of his endeavours. In 2010, he also received a lifetime achievement award from the Association of Iurists’ Socie- ties of Slovenia, and from 2008 until his death, he was a member of the edito- rial board of Pravnik journal.

Key words: dr. Konrad Plauštajner, Bar Association of Slovenia, lawyer, lawyer, Lifetime Achievement Award, Association of Lawyers of Slovenia, arbitration, alternative dispute resolution, ARS.


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Number 3-4/2023

Responsibility to Protect in Theory and Practice

In her opening address, the President of the Republic of Slovenia, Nataša Pirc Musar, stated that Slovenia has always been a strong supporter of the Respon- sibility to Protect (R2P) and was part of a group of countries that co-created this important principle nearly two decades ago. President Pirc Musar also identified climate change as one of the (new) factors of instability and war, concluding that the concept of climate justice is gaining traction in the inter- national community. At the very core of the Responsibility to Protect is the recognition that the promotion and protection of human rights do not stop at national borders. While States have a primary responsibility to protect the population on their territory, the international community shares the respon- sibility to protect vulnerable groups from most egregious violations of their universal human rights.

Key words: responsibility to protect, genocide, war crimes, crimes against hu- manity, ethnic cleansing, climate justice.

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Prohibition of Reformatio in Peius in Administrative Procedure and Some Other Related Issues

The principle of the prohibition of reformatio in peius, a fundamental proce- dural principle, is applicable in administrative procedure, though not with- out limitations. Administrative procedure is distinct from other types of pro- cedures, as it requires the administrative body to protect public interest. In some instances, safeguarding this interest necessitates amending the decision to the appellant’s disadvantage. From the perspective of theory and case law, the article analyses the principle of prohibition of reformatio in peius within the decision-making of bodies in administrative proceedings, examining the exceptions to this principle and exploring some other related issues. The first section outlines the content of the prohibition of reformatio in peius in general and the regulation of this institute in some comparative law regimes. The sec- ond section focuses on the analysis of the principle of prohibition of reformatio in peius in the Slovenian regulation of administrative procedure.

Key words: reformatio in peius, exceptions to the prohibition of reformatio in peius, modification of the decision to the detriment of the appellant, the principle of the prohibition of reformatio in peius in the decision-making of a first- instance body, a replacement decision.

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Ensuring Judicial Independence through the System of Appointment and Dismissal of Judges in the Case-Law of the European Court of Human Rights

This article examines the views of the European Court of Human Rights (the ECtHR) on the appointment and dismissal of judges from the perspective of ensuring the independence of judges, particularly from the executive and the legislature. It presents some of the (most) important recent decisions, in which the ECtHR found a violation of Convention rights in individual procedures for appointing and dismissing judges or court presidents, and indirectly assessed the regulation of the judicial system in the Contracting States, including the sys- tem for appointing and dismissing judges. Although the ECtHR’s influence on safeguarding the rule of law and the institutional independence of the judiciary is generally limited or only indirect, since it can only establish and develop cer- tain minimum standards of human rights protection in individual proceedings, it can nevertheless have an impact on improving the organisation of the judici- ary within the Contracting States and it has in fact encouraged a number of changes of legislation in the relevant field. The presented case law demonstrates that the ECtHR’s influence in ensuring the independence of the judiciary is not insignificant, as the ECtHR also addresses systemic issues of the organisation of the judiciary, though its case law in this field has also raised some issues.

Key words: judicial independence, appointment of judges, dismissal of judges, European Court of Human Rights, separation of powers, rule of law.

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University of Ljubljana Faculty of Law 30th in the World

In the 2022 Moot Court competitions, the Faculty of Law at the University of Ljubljana achieved an exceptional ranking on the Nica.team performance scale: 1st in Slovenia, 13th in Europe, and an impressive 30th globally. This result marks a notable improvement from 2021 when our esteemed faculty secured the 43rd position worldwide, itself a testament to our excellence in these student- led competitions. Moot Court competitions serve as simulations of court and arbitration proceedings, with students stepping into the roles of dispute parties’ delegates. The competitions, typically conducted in English or French, require students to address timely legal and social issues across a broad spectrum of law fields. These include European Union law, international commercial law, hu- man rights law, criminal law, asylum law, and space law, among others.

Key words: University of Ljubljana Faculty of Law, Nice.team, moot court, competition, students, simulation.

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50 Years of Legal Informatics in Slovenia

Although the first legal information system projects already existed in Yugo- slavia (RSPOUP), it was not until the introduction of a free business initiative and the development of personal computers that the conditions for effective assistance to lawyers in their work were created. During the pioneering period, the Computer Science Section of the Society of Business Lawyers took the lead by organising "Lawyer and Computer” courses and an annual computer work- shop as part of the Days of Slovenian Jurists in Portorož. The turning point was the professionalisation of legal informatics with the establishment of IUS SOFTWARE company and its legal information system IUS-INFO, as well as by the introduction of the Legal Informatics course at law faculties in Ljubljana and Maribor. The quality of all types of legal texts has been significantly im- proved over the last two decades with artificial intelligence modules, which will serve as the legal basis for all future modernisation and efficiency gains.

Key words: informatics, information system, artificial intelligence, computer, society, jurist, law faculty.

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The Responsibility to Protect and its Limits and Untapped Opportunities

The international scientific conference Responsibility to Protect in Theory and Practice, held on 11 and 12 May 2023 at the Faculty of Law of the University of Ljubljana, marked the tenth anniversary of the launch of the series of bien- nial international interdisciplinary scientific conferences on the principle of R2P at the Faculty of Law of the University of Ljubljana, which brings together theoreticians, researchers and practitioners from various fields relevant to the implementation of R2P from all over the world. It was held under the honorary patronage of the President of the Republic of Slovenia, Nataša Pirc Musar, who in her opening address expressed the strong support of the Republic of Slove- nia to R2P and stressed that the promotion and protection of human rights transcends national borders. These R2P conferences have made a significant contribution to positioning Slovenia as a leading supporter of activities that help protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing.

Key words: responsibility to protect, genocide, war crimes, crimes against hu- manity, ethnic cleansing, University of Ljubljana Faculty of Law.

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Judicial Insignia in European and Slovenian Legal Tradition

This article provides an overview of the monograph Judicial Insignia in Euro- pean and Slovene Legal Tradition (Sodniške insignije v evropskem in sloven- skem pravnem izročilu) written by Vid Žepič, Dr. Tomaž Nabergoj, Dr. Polona Vidmar, and Igor Zemljič. This meticulously researched work delves into the legal traditions and the judicial cultural history from antiquity to the 19th century, exploring the role of symbols in shaping our understanding of this heritage. By synthesising perspectives from four distinct fields of research, the authors reveal the intricate relationships between symbols and legal history, providing a rich and nuanced portrait of both Slovenian and (Central) Euro- pean cultural heritage.

Key words: symbolism, legal tradition, judicial insignia, judicial swords, judi- cial staves, cultural heritage.

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Number 5-6/2023

Dr. Ivan Tavčar – A Lawyer Who Never Retired

We all know Ivan Tavčar, PhD, as a writer, many as a politician, but few as a lawyer, although he was a lawyer all his life and he never retired. Contempo- raries called his law firm a "fortress of liberalism”. Because Ivan Tavčar stood for economic, religious, political, and ideological freedom of the individual. He stood for fundamental ideas such as the constitution, liberal democracy, free and fair elections, human rights, and freedom of religion. He stood for the equality of all people, for equality before the law and for the autonomy of nations. The title of the academy, at which the author presented this text as a speaker, is therefore somewhat appropriate: "Let’s look up to Tavčar!”

Key words: Ivan Tavčar, lawyer, writer, politician, liberalism, Slovene language, freedom of the individual, Austro-Hungarian empire.

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Constitutional Arrangement and (Non-)establishment of Regions in Slovenia

Despite the fact that the Constitution of the Republic of Slovenia has been es- tablishing the constitutional foundations for a mandatory second tier of local self-government in Slovenia since the 2006 constitutional amendments, we are still waiting for legislative implementation. The prolonged legislator’s failure to comply with the constitutional obligation to enact the law about the estab- lishment of regions violates Article 143 of the Constitution, the constitutional right to local self-government under Article 9, the rule of law principle under Article 2 and the separation of powers principle enshrined in Article 3(2) of the Constitution. However, as has been established in this article, the Consti- tutional Court will not be able to declare or sanction these violations due to the nature of the constitutional obligation to establish the second tier of local self-government and the separation of powers principle, both of which must be considered in constitutional adjudication. The discrepancy between the Constitution’s mandate for regions and the actual absence of regions, owing to an inability to achieve political consensus in the legislature on the constitu- tive law, is untenable in a rule-of-law state. Debates within the professional community often focus on potential changes to the Constitution; however, the issue surrounding regions is distinct. Despite the constitutional amendment’s overwhelming support from politicians and experts, it has not been translated into law, leaving all the inhabitants of Slovenia in a worse position than if the regions existed. The legislator should act as soon as possible to enact the law establishing the regions in accordance with the requirements of the Constitu- tion and the fundamental principles of local self-government as derived from the European Charter of Local Self-Government.

Key words: second level of local self-government, regions, Article 143 of the Constitution, right to local selfgovernment, rule of law, constitutional obligation, Constitutional Court, legislator.

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The Use of the Institute of Suspensive Veto in the Case of Laws on Urgent Measures to Ensure the Defence of the State, Security, or the Elimination of the Consequences of Natural Disasters

In 2020, the Slovenian legislator amended the Referendum and Popular Ini- tiative Act to provide for a special procedure related to a call for a legislative referendum in the case of laws on urgent measures to ensure state defence, security, or the elimination of the consequences of natural disasters. Because the legislator main goal was to expedite the law implementation process it inadequately regulated the powers of the National Council, particularly the right to file a suspensive veto. The author discusses some of the constitutional dilemmas related to the institute of the suspensive veto which arose after the adoption of Article 21.a of the Referendum and Popular Initiative Act. Based on the analogy with the limitation of the legislative referendum and the com- parative analysis the author offers possible solutions for the arrangement of the institute of the suspensive veto in the case of such legislation. These solutions would address not only the need to ensure faster promulgation of legislation but also the need to constitutionally regulate the limitation of the suspensive veto of the National Council.

Key words: National Council, National Assembly, suspensive veto, legislative process, retroactive, abuse of rights.

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Validity of the Will in Will Formalities Perspective

One of the fundamental principles of inheritance law is testamentary freedom, which ensures that the testator can determine the heirs and distribute most of the property as he sees fit, regardless of intestate succession. To do so, he must adhere to certain requirements regarding the content of testamentary disposi- tions and will formalities. According to the rule of strict compliance, only wills made in one of the legally prescribed forms are valid. Exceptionally, in some common law countries, a will that does not meet all formalities may also be valid. An exception from the strict rules is provided by the doctrine of harm- less error and the doctrine of substantial compliance, which instead of forma ad valorem emphasise the testator’s true intention. The aforementioned rules are enacted in many countries and provide the courts with a starting point on which the latter can legally argue their decision. They were used both in cases in which the courts corrected mistakes regarding witnesses or signatures in written forms of the will, as well as in cases where the testator wrote the will in electronic form. The continental legal order does not have these exceptions, but doctrines, if enacted, could aid in the realisation of the testator’s true will.

Key words: will, will formalities, strict compliance, doctrine of harmless error, doctrine of substantial compliance, electronic will.


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The European Parliament at the Crossroads

In the spring of 2024, the European Parliament gears up for its tenth direct election since 1979, marking another crucial milestone in transnational de- mocracy following the Conference on the Future of Europe. Historically, EP elections have been marred by national fragmentation and perceived as "second-class” due to low voter turnout in many Member States, including Slovenia. Nonetheless, these elections are still a central act for ensuring the democratic legitimacy of the EU and shaping its political trajectory. This arti- cle is a report from the event, the topic of which were the current challenges of European parliamentary democracy, especially one year before the European elections, such as the renewal of EU electoral rules, the promotion of electoral participation, and the proposition for an independent EU ethics authority.

Key words: European Parliament, elections, future, European Union, democracy, ethics.

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Another Triumph of the University of Ljubljana Law Faculty at CEEMC

For the second year in a row, the team from the University of Ljubljana Faculty of Law won the Central and Eastern Europe Moot Competition – CEEMC, which is organised by the British Law Centre under the auspices of the Uni- versity of Cambridge and the Court of Justice of the EU. The members of the team were undergraduate students Lea Zahrastnik and Ana Mestinšek Mubi, and a postgraduate student Peter Grašič who worked tirelessly and diligently throughout the entire preparation period in an excellent and respectful team atmosphere. They were coached by former successful competitors of the fac- ulty in moot court competitions, Žana Lapajne, Masha Korošec and Walter Maj Vidmar under the mentorship of Assoc. Prof., Assoc. Prof. Ana Vlahek. At the final part of the competition, which took place in Croatian Dubrovnik, in addition to the team victory, student Lea Zahrastnik received the highest speaker award – the Best Speaker Award.

Key words: CEEMC, University of Ljubljana Faculty of Law, moot competi- tion, students, University of Cambridge, British Law Centre.


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Number 7-8/2023

On the Tradition of Legal Science

The contribution is the author’s commemorative address marking the 103rd anniversary of the University of Ljubljana Faculty of Law. The author leaned on the tradition of jurisprudence, while being aware that we should not cling to tradition convulsively and stand still. We must start from tradition, correct it and supplement it. If necessary, due to new insights and new circumstances, we must also transcend it and diverge from traditional pathways. Central to the contribution is the idea that constitution, laws and other normative acts cannot be implemented automatically. It is always a matter of first understan- ding these acts and only then deciding how to implement them in concrete cases. Behind every responsible legal decision-making is the knowledge that even minor value nuances and new minor factual circumstances can influence our perception of what the elements of legal reasoning mean and how they in- terrelate. If this is correct, interpretation and justification (argumentation) are necessary and constant companions of legal decision-making. The meaning of legal understanding is, volens nolens, shared. It can only be achieved and dee- pened through a collaborative effort between the theory (philosophy) of law and individual positive legal sciences.

Key words: nature of law, interpretability of law, analogy in law, study of law, separation of powers, rule of law (Rechtsstaat).

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Warnings of Rational Legislative Policy

Legislative policy pertains to setting the goals of legislative activity and de- termining the ways and means to achieve these goals in the legal regulation of social relations. When the legislator deliberately selects values, goals and means and foresees the consequences, we speak of a rational legislative policy. The triumph of this policy hinges upon an integral view of law, considering both its social function and the personal perception of legal norms by each individual. The fundamental programme document for the management of legislative policy in Slovenia is the Resolution on Normative Activity. It en- compasses principles, warnings and numerous yet unrealised objectives. The fundamental ideas of the Resolution must also be taken into account when translating programme documents into legal acts.

Key words: legislative policy, an integral aspect of law, the social function of law, internalisation of legal norms, resolution on normative activity.

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Is the Constitutional Court Bound by Its Own Decisions?

The aim of this article is to explore whether the Constitutional Court of the Republic of Slovenia is legally bound by its own decisions. First, the author distinguishes two alternative conceptions of how past judicial decisions may be relevant to the decision-making of a later court. On the first account, the court is bound by a previous decision in the sense of only being permitted to depart from it when reasons of special kind or weight obtain, not whenever it deems that decision wrong. On the second view, the court has more latitude: it may always change its mind on a legal issue as long as it provides a reasonable justification for doing so. In the remainder of the article, the author evalu- ates three arguments in favour of the claim that the first view most faithfully describes the attitude which the Constitutional Court legally ought to adopt towards its own decisions.

Key words: precedent, horizontal precedential effect, stare decisis, Constitutional Court, overruling, established case law, binding nature of constitutional decisions, equal protection of rights.

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A Critical View on the Influence of Competition Analysis Paradigms on the Essential Facilities Doctrine

The essential facilities doctrine is a competition law tool that allows an eco- nomic entity to demand access to a facility controlled by another economic entity (with a dominant position in the market for that facility) if access to the facility is necessary to access the downstream market. The author attempts to answer the research question: How do selected competition policy paradigms influence the understanding of the doctrine’s content and its execution? The author presents the impact of selected competition policy paradigms on the understanding and application of the doctrine in the United States of America and the European Union, focusing on the Harvard School, the Chicago School, and Ordoliberalism. He points out that the doctrine was developed and peaked in the United States of America at the time of the dominance of the Harvard School. The doctrine’s influence began to wane with the rise of the Chicago School, which ultimately eclipsed it within the legal framework. Before the transition to the "more economic approach”, European competition law was deeply rooted in Ordoliberalism. This emphasises the imperative of interven- tion in the market, a principle that contributed to the success of this doctrine in the European Union. As the ordoliberal influence on European competition law began to wane, so too did the significance of the doctrine.

Key words: Harvard School, Chicago School, Ordoliberalism, neo-Brandeis Movement, the Essential Facilities Doctrine, competition law.

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Students of the Faculty of Law of the University of Ljubljana Exceled in a European Law Competition

The Faculty of Law of the University of Ljubljana has once again demonstrated its commitment, dedication and interest in the current issues of European law. Its exemplary performance in the European Law Moot Court (ELMC) stands as compelling proof that knowledge of European law is one of the cornerstones for the development of a legal professional. In the most prestigious EU law competition, the Faculty of Law team’s concise written memoranda and con- fident oral presentations placed them among the top eight universities in Eu- rope and the world. The students also broadened their knowledge of current issues in European law through a fictional case study, which this year dealt with restrictive measures, liability for environmental damage and withdrawal of EU citizenship.

Key words: EU law, restrictive measures, environmental law, EU citizenship, European Law Moot Court (ELMC), moot court, competition, University of Ljubljana, Faculty of Law, report.


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Professor Emeritus Ivan Kristan, PhD (1930– 2023)

The contribution is an obituary for Professor Emeritus Ivan Kristan, PhD, of the University of Ljubljana. His extensive knowledge and experience nur- tured several generations of Slovenian lawyers, guiding both their personal and professional growth. His profound and dedicated professional, scientific, and public activities markedly advanced Slovenian legal science and society at large. Amongst his many roles, he served as the Dean of the Faculty of Law in 1981–1985, and the 34th Rector of the Edvard Kardelj University in Ljubljana between 1985 and 1987. His distinguished career led him to the Constitution- al Court of the SFR Yugoslavia in Belgrade in 1987–1991. In these turbulent years, particularly 1990 and 1991, he opposed some constitutionally contro- versial proposals and decisions in decision-making and with his separate opin- ions. Notably, Professor Kristan objected to a proposal designed to prevent the adoption of the Slovenian constitutional amendments, which substanti- ated the elements of Slovenian sovereignty. At that time, the Yugoslav Consti- tutional Court, with Professor Kristan’s insistence, remained the sole federal state body that did not condemn these amendments in advance. He demanded compliance with the regulations stipulating the Constitutional Court’s lack of competence for preliminary constitutional review. Between 1992 and 1997 he was also the first president of the State Council of the Republic of Slovenia.

Key words: Ivan Kristan, in memoriam, constitutional law, Constitutional Court, Faculty of Law of the University of Ljubljana, State Council of the Re- public of Slovenia, Yugoslavia.

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Number 9-10/2023

Dismissal of a Judge: A Consequence of a Negative Evaluation of Judicial Service or a Disciplinary Sanction?

The new draft judicial service act (the JSA-1) envisages an abolition of the dis- ciplinary dismissal of a judge. Under the new rules, the termination of a judge’s office would be primarily due to a negative evaluation of judicial service. The proposed amendment relies on four false assumptions. First, the draft wrongly regards disciplinary proceedings as the predominant means for securing judi- cial accountability in Slovenia. Second, the evaluation of judicial service would mostly not follow a final disciplinary decision as the draft envisages. Third, contrary to the views of the sponsor of the new bill, the Slovenian Constitu- tion allows judges to be dismissed without the involvement of the National Assembly. Forth, Slovenia cannot freely regulate the matters at hand, as the draft wrongly assumes, but is bound by certain international and EU law ob- ligations. Because of these false assumptions, the draft, which was meant to enhance judicial independence, paradoxically works to its detriment.

Key words: dismissal, disciplinary sanction, evaluation of judicial service, reform of the judiciary, judicial independence.

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Changes to the Constitutional Arrangement of the National Council

The National Council, Slovenia’s second parliamentary chamber, was created as a compromise of different ideas during the formation of the Slovenian Consti- tution. This article traces the evolution of the idea of a bicameral parliamentary system from the late 1980s of the 20th century to the beginning of the 1990s when this idea was embedded in the current Constitution through the draft and proposal of the Constitution. The compromise reached during the draft- ing of the Constitution affected the law regulatory arrangement of the National Council, leading to numerous practical challenges. The aim of this article is to explore the spectrum of potential amendments to the constitutional regulation of the National Council in several directions, spanning from abolition to trans- formation and modification of the existing regulation of the National Council. In the remaining part of the article, a change to the regulation of the procedure for reconsidering the law is presented with the aim to bolster the quality of the adopted legislation. As a solution, it is proposed that, instead of voting on the law again, which represents a pointless prolongation of the legislative proce- dure, the arrangement de lege ferenda enables a discussion of the disputed pro- visions of the law and a decision on possible changes to the disputed part of the law, thereby obviating unnecessary further procedures for amending the law.

Key words: National Council, Constitution, second chamber, upper house, suspensive veto, reconsideration of a law.


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Outline of the Relationship between Theoretical and Practical Aspects of Law Studies (At the Commencement of the Five-Year Unified Master’s Program at the University of Ljubljana Faculty of Law)

The introduction of a unified five-year master’s degree programme in law at the University of Ljubljana Faculty of Law will provide law students with a high-quality legal education that will meet the growing demands of legal prac- tice, even in times of new social challenges. The Faculty of Law also encourages the study of legal practice and the learning of legal skills during their stud- ies, however, with the aim of gaining additional practical experience, some students choose to work occasionally in law firms and in other areas of law. Although such work may be useful to some extent, it should not cause the student to neglect his or her studies. The time of study must be the time of study, and its predominantly theoretical orientation is a necessary and funda- mental prerequisite for the later successful professional activity of the lawyer. A deeper insight into the nature of legal theory and practice shows us that they are two poles (two condensations) of the same phenomenon, which, although separated in rational legal reflection, are nevertheless perceived as two neces- sarily interconnected sides of a lawyer’s knowledge and competence. There- fore, a part of quality theoretical teaching and study of law is also knowledge and critical evaluation of legal practice, just as a part of legal practice is an appropriate theoretical reflection that connects social reality with general and abstract legal principles and rules.

Key words: legal theory, legal practice, student, study of law, extracurricular activities, unified five-year master’s programme in law, University of Ljubljana Faculty of Law.

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The Power of the People in the Constitutional Development of the Republic of Slovenia 1991–2023

The author first discusses the procedure established for amending the Consti- tution of the Republic of Slovenia, as determined by the Slovenian legal order. He presents the dominant proponents of constitutional amendments in the Republic of Slovenia and to what extent the process of preparing a proposal for constitutional amendments is people-friendly or feasible. He also presents whether the constitutional development was dominated by the initiatives of the people, the government or parliamentarians or political parties. In additi- on, the author gives a chronological presentation of all 11 amendments to the Constitution so far, with a brief presentation of the essence of the amendment. He also deals with the dominant reasons for the constitutional changes and whether the development of the constitutionality was planned, considered, professionally justified and to what extent it was a matter of more or less for- tunate individual political projects. In the second chapter, the author presents numerous ideas, initiatives and proposals for de lege ferenda amendments to the Constitution of the Republic of Slovenia and briefly evaluates them from the perspective of their feasibility (reality for political consensus) and above all from the point of view of the consistency of constitutional development. He is trying to answer the question of whether the constitutional review process is favourable to the possibility that the people will implement their proposal for constitutional changes, especially where it is objectively impossible to expect (based on several decades of experience) that they will obtain a sufficient ma- jority of deputies in the National Assembly of the Republic of Slovenia. In ma- king these judgments, he relies on the analysis of the case of long-term efforts by civil society for a more thorough renovation of the electoral system, which turned out to be completely unrealisable, and he asks, or rather tries to answer, where there is a way out of such a dead end.

Key words: constitutional review procedure, constitutional amendments to date, proposals for constitutional amendments, constitutional initiatives, reform of the electoral system.

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On the Occasion of the 90th Anniversary of Academician, Professor Emeritus Alenka Šelih

At the National Biannual Criminology Conference "Prevention and (In)Jus- tice”, held on 5 October 2023 at the Faculty of Law, University of Ljubljana, we celebrated the 90th birthday of Dr Alenka Šelih, academician, professor emer- ita, and long-time director and researcher at the Institute of Criminology at the Faculty of Law in Ljubljana. To celebrate this significant occasion, we inau- gurated "Alenka Šelih Lectures”, which were delivered by academician Profes- sor Dr Frieder Dünkel from the University of Greifswald, along with Justice Mag Renate Winter, who served as a judge of several international criminal courts. The paper highlights Acad. Alenka Šelih’s efforts to champion the cause of scientific reasoning over the loud voices of influencers and opinion lead- ers, and the like. Far too often these latter individuals are silent whisperers to public sentiment and legislators while scientifically grounded voices remain overheard. The paper draws attention to the efforts of Acad. Alenka Šelih to join the forces of researchers from Central and Eastern Europe in having their own voice in the international scientific fora. The paper places her interna- tional engagements at the forefront of her achievements since her expertise in crime policy, criminal law and the broader field of criminology, as well as her excellent knowledge of several foreign languages, led to her first appearances abroad in the 1970s and left a remarkable legacy on the development of juve- nile justice within the framework of the Council of Europe and the UN.

Key words: Alenka Šelih, Faculty of Law, University of Ljubljana, criminal law, "to have your own voice”, National Criminology Conference, celebration.


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Exhibition Commemorating the 500th Anniversary of the Birth of Martin Pegius (1523–1592) in the Library of the University of Ljubljana Faculty of Law

In commemoration of the 500th anniversary of Martin Pegius’s birth (1523– 1592), the esteemed Carniolian jurist, renowned for his ground-breaking sci- entific contributions on the field of law, an exhibition showcasing his works is taking place in the foyer of the Faculty of Law library. The curated collection includes the original edition of his Tractatus on servitudes (1558), a facsimile of a partial translation of Justinian’s Code (1566), the Essays of Legal Opin- ions (1564), and a facsimile of Pegius’s astrological Book of Birth Hours (1570) published in 1924. Visitors have the unique opportunity to acquaint them- selves with the newly discovered stylised portrayal of Martin Pegius, artfully preserved on his tombstone in Salzburg.

Key words: Martin Pegius, legal scholar, exhibition of works, Faculty of Law University of Ljubljana.

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We Live in the Age of Judicial Law

The monograph Judicial Law is the result of a symposium at the Slovenian Academy of Sciences and Arts and the University of Ljubljana Faculty of Law, which took place in the beginning of 2023. The book was edited by academi- cian Professor Marijan Pavčnik and Assistant Professor Aleš Novak, and in addition to them, eight other prominent authors and two female authors par- ticipated: Maja Brkan, Tilen Štajnpihler Božič, Samo Bardutzky, Matej Accetto, Aleš Galič, Miro Cerar, Janez Kranjc, Tomaž Pavčnik, Primož Gorkič and Nina Betetto. In addition to classic scientific instruments, the book contains eleven comprehensive chapters in which the authors deal in depth with the concept and occurrence of judicial law, the Court of the EU as a (co)creator of Euro- pean law, reference to foreign judicial law in Slovenian constitutional review, strategic litigation and adjudication, guarantees regarding uniform judicial practice within the framework of the right to a fair trial, the judge’s (un)bind- ing to secondary general acts, the praetor’s creation of new law in the proce- dure, civil law institutes and the constitution as a source of judicial law, courts as (co)creators of the rules of criminal procedural law and soft judicial law.

Key words: judicial law, judicial practice, the Constitutional Court, the Court of the EU, the European Court of Human Rights, praetorian law, by-laws, the right to a fair trial, civil law institutes, judicial cosmopolitanism, strategic liti- gation and adjudication.


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Professor Emeritus Bojan Zabel (1930–2023)

The contribution is an obituary for the late professor emeritus Bojan Zabel. Professor Zabel’s illustrious career saw him ascend from the role of assistant to that of a full professor in 1996 at the University of Ljubljana’s Faculty of Law. In recognition of his distinguished service and significant contributions, the Senate of the University of Ljubljana honoured him with the title professor emeritus towards the end of his career. His professional and scientific aspira- tions took him to Paris to the International Chamber of Commerce, to lectures in Bologna, Naples, Trieste, Madrid, Rome, Warsaw and Leipzig, to the USA and back again to the Max-Planck Institute in Munich and Asser Institute in The Hague. He has been dealing with commercial law all the time, from lec- tures on Status Economic Law, Status Contracts, International Economic Law and Commercial Law Transactions to selected chapters of Obligation Law and Competition Law. He has also participated in a number of other courses in un- dergraduate, master’s and doctoral studies. His bibliography is rich and diverse in the field of commercial law, consistently marked by depth and analytical rigour. A classical theorist, he we also a practitioner par excellence, contribut- ing a series of commentaries on laws and frequently serving as an arbitrator.

Key words: Bojan Zabel, obituary, Faculty of Law, University of Ljubljana, eco- nomic law, professor emeritus.


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Number 11-12/2023

Assessment of Proposed Evidence in an Administrative Dispute

Administrative dispute is evolving towards a more proactive role for the ad- ministrative court in determining the relevant facts and legal basis of the case. Despite the possibility for the court to take evidence ex officio in administra- tive dispute, the bulk of the activity of taking evidence rests with the parties to the proceedings. It is for the court to assess the evidence presented and to decide on the admissibility of specific pieces of evidence. This article deals with the assessment of motions for evidence in administrative dispute. It first discusses the meaning and exercise of the right to evidence and the related distribution of the burden of proof in administrative dispute. It then focuses, from a theoretical and practical perspective, on the assessment of submitted evidence in administrative dispute, distinguishing between formal and sub- stantive criteria for assessing the admissibility of submitted evidence. The arti- cle also analyses the use of evidence obtained in violation of human rights and freedoms, examines the assessment of evidence in the context of the decision to issue an interim injunction, and analyses the standards of reasoning applied in the dismissal of evidence.

Key words: right to evidence, proposed evidence, administrative dispute, burden of proof, criteria for assessing the admissibility of proposed evidence, formal criteria, substantive criteria.


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The Legal Position of the National Review Commission: Why is the Judicial Protection Against its Decisions Being Limited?

The National Review Commission is a distinct, independent, and autonomous state body occupying two seemingly incompatible roles: it functions as a court or tribunal under Article 267 of the Treaty on the Functioning of the European Union, while also acting as a mere supervisory body within the Slovenian legal order. Case-law have delineated these dual roles, firstly through the case-law of the Court of Justice of the European Union and secondly via the settled case-law of domestic courts. From this perspective, the necessity for judicial oversight is neither imperative nor mandated. In terms of legal certainty, such a scenario is less than ideal. Amendment C of the Legal Protection in Public Procurement Procedures Act introduces a form of judicial oversight that is commensurate with the remit of the National Review Commission. This ap- plies particularly when the Commission, as a state authority exercising its legal powers (ex iure imperii), adjudicates on the rights and legal interests of revi- sion applicants. The introduction of (limited) administrative dispute demon- strates the recognized need for judicial oversight. However, a review of the jurisdiction of the administrative court in administrative dispute proceedings under the Legal Protection in Public Procurement Procedures Act, reveals that the ultimate solution does not adequately ensure effective judicial protection.

Key words: National Review Commission, administrative act, acta iure imperii, acta iure gestionis, sui generis legal authority.

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Differences Relating to Interpretation of Annex 10 of the Dayton Peace Agreement between the Office of the High Representative for Bosnia and Herzegovina and Republika Srpska

In light of the appointment of the incumbent High Representative for Bosnia and Herzegovina and his recent decisions, differences between the Office of the High Representative for Bosnia and Herzegovina and Republika Srpska have emerged regarding the appointment procedure of the High Representative for Bosnia and Herzegovina, and his powers under Annex 10 to the Dayton Peace Agreement. The first legal issue centres on whether the High Representative for Bosnia and Herzegovina requires endorsement by the UN Security Council to be considered valid. The second legal issue involves determining the scope of the High Representative’s powers. The implications of these differences can- not be understated, since they represent a threat to peace and security in the region. A possible solution of this situation might be in referring both legal issues to the International Court of Justice.

Key words: Dayton Peace Agreement, the High Representative for Bosnia and Herzegovina, Republika Srpska, appointment, powers, UN.


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What Was Completely Normal a Decade Ago Is Now Deemed “Unfair”

In Slovenia, banks once routinely concluded credit contracts with a currency clause in Swiss francs (CHF), as was either permitted or mandated by law. The current regulation of these credits presents challenges, both in terms of retroactivity and the principle of legal certainty, because EU law only generally defined the duty of explanation. However, the Court of Justice of the European Union has retroactively set very precise and strict rules regarding this duty. This was one of the key findings of the conference of lawyers held in Bled at the end of October 2023, which is the subject of this article. The majority of banks in Slovenia fulfilled their explanatory duty adhering to the then-current leg- islation. Furthermore, when considering the involvement of a notary and ex- plicit warnings in the credit agreements, it is evident that the majority of CHF credit agreements in Slovenia either meet the conditions or meet the standard that these agreements do not contain unfair terms. Consequently, practices that were entirely normal a decade ago are now considered unfair.

Key words: currency clause, credits, information duty, Swiss francs, CHF, EU law.

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Hethitica: A Contribution to the Development of Hittite Law

The reissue of the scholarly article by the esteemed Slovene academic, Profes- sor Viktor Korošec (1899−1985), titled Hethitica: A Contribution to the De- velopment of Hittite Law, delves into the evolution and critical problematic aspects of the legal framework governing the Hittites, the ancient Anatolian civilization that peaked in the 14th century BC. The accompanying foreword written by professor dr. Janez Kranjc, outlines Korošec’s extensive scientific contributions, primarily consisting of articles on oriental legal studies. Despite the significant progress in hittitology over the past six decades, Korošec’s in- sights remain relevant today, as evidenced by citations of his works in contem- porary hittitological scholarship.

Key words: Hittites, hittitology, oriental law, Viktor Korošec, legal history.


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Vasilij Vasko Polič, Supreme Court Senior Judge (1940–2023): Theatre, Court, Erotica

In the final days of November 2023, we bade farewell to Vasko Polič, a man of diverse talents and remarkable compassion. A distinguished athlete in his youth, Polič’s career spanned a variety of fields: a lawyer, actor, writer, poet, musician, and a veritable encyclopaedia of cinema. However, his most notable role was as the Supreme Court judge, a position he held for 24 years. Elected in 1986, he served until his retirement in 2010. His tenure coincided with pivotal moments in the evolution of Slovenian statehood and its legal system. Given the significance of the role of Supreme Judge, his period in office profoundly influenced the legal system, particularly in the field of administrative law.

Key words: Vasko Polič, obituary, in memoriam, supreme judge, actor, poet, erotica.


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