The Ombudsman recommended that the Ministry of Natural Resources and Spatial Planning (MNVP) and the Ministry of Agriculture, Forestry and Food (MKGP) review the provisions of the sixth paragraph of Article 19 of the Water Act (ZV-1) and, on the basis of their own assessment, prepare an appropriate amendment to the provision in question and, if necessary, other related legislation, with a view to clearly and unambiguously defining the rights and obligations of individual managers of state-owned real estate and with the aim of standardising the management of state-owned agricultural land. The ministries carried out the review as part of interministerial cooperation and jointly assessed that there was no need to amend this provision.[1] They assessed that the current practice of cooperation between the Water Directorate of the Republic of Slovenia (DRSV) and the Agricultural Land and Forest Fund of the Republic of Slovenia (the Fund) in cases of disposal of agricultural land that ceases to be a natural water public good is appropriate.

Firstly, it should be emphasized that, in accordance with the provisions of Article 2 of the Agricultural Land and Forest Fund Act (ZSKZ), the Fund has exclusive competence to manage agricultural land owned by the Republic of Slovenia, which is called into question by the aforementioned provision of ZV-1, which grants the DRSV a relatively wide scope of discretion. In the Ombudsman's opinion, the provision in question of ZV-1 is an unfortunate and possibly ill-considered provision, as it must be read in the context of the aforementioned provision of ZSKZ as well as the second indent of the same article of ZV-1, which (only) for building land, under the same conditions as for agricultural land, stipulates that the DRSV may freely dispose of it (unlike agricultural land). A contextual and purposive interpretation of the entire provision of the sixth paragraph of Article 19 of the ZV-1 shows that the legislator made a distinction regarding the intended final fate of land that had lost its status as natural water public property. It appears that, on the one hand, it wanted to standardize the management of agricultural land as real estate with a high level of protection, while on the other hand, it wanted to allow the manager a freer approach to building land. If the legislator had intended to allow managers such as the DRSV to freely dispose of agricultural land (within the framework of the mandatory provisions of the ZKZ, of course), the Ombudsman believes that this could have been explicitly stated, as was done for building land, but it did not do so.

The Ombudsman therefore assessed that the provision of the sixth paragraph of Article 19 of ZV-1 is a grammatically awkward legal norm that establishes an overly broad semantic openness of the DRSV's duty to act, which could have a negative impact on the security of legal transactions and, consequently, on the legal certainty and predictability of relationships between individuals and the state. Finally, such duality in the management of similar state-owned land is questionable in terms of its contribution to the efficient management of state assets; it has the potential to increase the incidence of (unnecessary) litigation and may also cause a number of other administrative and economic challenges that could be avoided.

In view of the above, the Ombudsman addressed the above recommendation to the competent ministries. The MNVP and MKGP carried out the review and, despite the reservations expressed in the meantime, especially the MKGP, they adopted a common position that, given the practice of the DRSV, which now includes the fund in all procedures for the disposal of agricultural land, there is no need to amend the sixth paragraph of the ZV-1. Taking into account the fact that in the meantime he had not been informed of any new cases similar to those that gave rise to the recommendation in question, the Ombudsman considered it to have been implemented. 14.2-7/2023

[1] This procedure is prescribed for cases where, after the termination of the status of natural water public property, it is not possible to dispose of water land in accordance with the fourth and fifth paragraphs of Article 19 of ZV-1.