Facts

The plaintiffs, a municipality and its Mayor, asked the Court to examine whether state legislation regulating nuclear safety was compatible with the Slovenian Constitution. Two nuclear facilities in the plaintiffs’ territory would be subject to the contested regulations. The municipality considered that the regulations interfered with its constitutional rights because they infringed on its original tasks, which included adopting spatial planning acts, planning spatial development, ensuring environmental protection and managing municipal property. In general, the municipality claimed the contested declarations interfered with their power to regulate the territory of their municipality, citing Article 140 of the Constitution, which lays out the competencies of a municipality to govern local affairs.

The municipality also raised specific concerns about the level of compensation for construction of nuclear installations on their territory established in one of the regulations and the lack of public participation that went into creating the regulations. In support of this claim, the plaintiffs also cited Article 6 of the Aarhus Convention.

The plaintiffs submitted a request for the Court to:
(1) Review the constitutionality of The Act on Protection against Ionizing Radiation and Nuclear Safety;
(2) Review the constitutionality and legality of the Regulation on areas of restricted use of space due to a nuclear installation and on the conditions for the construction of facilities in these areas; and
(3) Review the constitutionality and legality of the Regulation on the criteria for determining the amount of compensation due to the restricted use of space and for the purpose of planning intervention measures in the area of a nuclear installation.

Decision

The plaintiffs’ claims against the contested regulations were dismissed.

The Court only considered a portion of the plaintiffs’ complaints sufficiently defined and founded to make a judgment on them. The admissible complaints were those arguing that:

(1) Article 96 of The Act on Protection against Ionizing Radiation and Nuclear Safety was incompatible with Article 140(1) of the Constitution (“The competencies of a municipality comprise local affairs which may be regulated by the municipality autonomously and which affect only the residents of the municipality.”);

(2) the first and second paragraphs of Article 175 of ZVISJV-1 and the Regulation on Restricted Use of Land were incompatible with Article 120(2) of the Constitution (“Administrative bodies perform their work independently within the framework and on the basis of the Constitution and laws.”);

(3) the sixth paragraph of Article 97 of The Act on Protection against Ionizing Radiation and Nuclear Safety was incompatible with Article 9 (“Local self-government in Slovenia is guaranteed) and Article 139 (establishing the self-governance of municipalities) of the Slovenian Constitution; and

(4) the Restricted Land Use Ordinance was adopted in breach of Articles 9 and 139 of the Constitution (see above).

On the subject of separation of power between local (municipal) and national government, the Court wrote that “the Constitution protects the functional autonomy of the municipality and constitutes a constitutional bulwark against unauthorised interference by the State. However, its functional autonomy does not mean that the municipality is completely autonomous in the exercise of its original competences, and that any regulation of those competences constitutes an impermissible interference with its autonomy.”

Spatial planning is generally something that falls within the jurisdiction of the community…but not always. In this area, according to the Court, the municipality must take broader considerations into account, including state-wide objectives such as minimizing the possibility of harm to human health or reducing the possibility of endangering a healthy living environments, while allowing the development, production and use of radiation sources and the performance of radiation activities. This was the purpose of the contested regulations. Since these concerns were larger than the immediate locality, the Court found them to be within the power of the national government to address.

The Court also rejected the plaintiffs’ claim about lack of public participation (but didn’t conduct a detailed analysis).

R2HE elements addressed in the case

Environmental and international law principles featured in the case

Strategies used by plaintiffs

Select practices employed by the court or system

Official Documents

• Decision