Environmental Law 2020

Last Updated November 13, 2020

Slovenia

Law and Practice

Authors



Odvetniki Šelih & partnerji, o.p., d.o.o. is a full-service business law firm that continues the tradition of a partnership established in 1961. With an unwavering focus on its clients’ business objectives, professional know-how, firm-wide dedication, responsiveness and hard work, it offers top-tier legal advice in Slovenia. The firm's energy and environmental law department advises on all aspects of environmental law, including zoning permits and due diligence, and assists its clients with the environmental aspects of commercial transactions. The firm's lawyers advise companies facing difficulties as a result of environmental violations and represent clients before the respective administrative bodies and courts. In advising on the entire spectrum of environmental, energy, natural resources and infrastructure law, its lawyers combine their specific knowledge of these areas with a broader understanding of company law, M&A, real estate law, as well as finance and civil law.

Constitution of the Republic of Slovenia

The Constitution of the Republic of Slovenia contains several provisions which directly or indirectly provide for the basic legal framework of environmental protection. Article 5 of the Constitution thus already introduces the principle of sustainable development by providing that “the state shall provide for the preservation of the natural wealth and cultural heritage and create opportunities for the harmonious development of society and culture in Slovenia”. Further, most relevant constitutional principles in the field of environmental laws are implemented through the following:

  • the principle of limitation of (private) property (i) with its ecological function (Article 67) and (ii) by means of expropriation in public interest (Article 69);
  • the provisions regarding (i) the right to use of public good and exploitation of natural resources (Article 70) and (ii) restrictions of use of land and protection of agricultural land (Article 71);
  • the right to (i) a healthy living environment (Article 72) and to (ii) drinking water and provision thereof on a non-profit basis (Article 70a); and
  • the obligation of (i) the general public to protect the natural sites of special interest and rarities and of (ii) the state and local communities to promote and preserve the natural heritage (Article 73).

Key Statutes

The above principles are implemented by the Environmental Protection Act as the framework act in the field, which is supplemented with several sectoral laws and regulations, such as:

  • the Nature Conservation Act and Water Act and implementing measures in the field of nature preservation (as well as some specific acts governing designated natural parks);
  • several acts and regulations in the field of waste treatment and management;
  • acts and regulations in the field of pollution prevention and quality and protection of air, soil and water;
  • the Spatial Planning Act and the Construction Code in the field of spatial management; and
  • the Animal Protection Act.

The key statutory principles of environmental protection are:

  • the principle of sustainable development;
  • the principle of comprehensiveness;
  • the principle of co-operation;
  • the principles of prevention, precaution and encouragement;
  • the polluter pays principle;
  • the principle of subsidiary liability; and
  • the principle of permissibility.

Policy

The most relevant policy-level document is the National Environment Protection Action Programme, adopted in 2020, which defines the long-term goals, guidelines and competencies in the field, with programmes of measures until 2030.

Based on the Programme, the government shall prepare implementation monitoring reports every four years and various operative programmes shall be adopted to implement the Programme and binding international treaties and conventions, strategies and applicable acquis communautaire. Local communities shall adopt local environment protection plans and action plans which shall be in line with the national Programme.

Regulation and Enforcement

In Slovenia, regulatory and enforcement competencies related to environmental issues on the national level are rather centralised; the main governmental body in charge of environment is the Ministry of the Environment and Spatial Planning. Its goal is to provide a healthy living environment for all inhabitants of the Republic of Slovenia and to promote and co-ordinate efforts towards sustainable development based on the efficient and economical use of natural resources and ensuring social well-being.

On the local level, the local communities and municipalities play a relevant role specifically in the area of spatial planning, monitoring, nature preservation and informing the public.

There is no specific independent regulator established in the field of environment, but there are several bodies within the Ministry of the Environment and Spatial Planning in charge of various tasks, such as the following.

  • The Slovenian Environment Agency which performs the environmental monitoring and expert services as well as leading administrative proceedings in the field (eg, environment impact assessment).
  • Most of the heavy lifting in overseeing the implementation of the environmental laws is done by the Inspectorate for the Environment and Spatial Planning. It supervises the implementation of regulations in the field of housing and surveying as well as in the fields of environmental protection and nature conservation, water management, industrial pollution and genetically modified organisms. It also performs administrative and expert tasks in the field of cross-border shipment of waste, with the exception of radioactive waste. The inspectorate is internally divided into two operational units – the Environment and Nature Inspection Service and the Construction, Surveying and Housing Inspection Service.
  • The Slovenian Water Agency, which is in charge of water management.
  • The Slovenian Nuclear Safety Administration which performs professional, administrative, supervisory and development tasks in the areas of radiation and nuclear safety, radiation practices and the use of radiation sources, protection of the environment against ionising radiation, physical protection of nuclear material and facilities, non-proliferation of nuclear weapons, and protection of nuclear goods.
  • The Surveying and Mapping Authority which is a national land-surveying service and is responsible for conducting administrative procedures and deciding in administrative cases at the first instance, issuing data from geodetic databases, and other administrative services and tasks of a land-surveying service.

Criminal Liability

In addition to administrative inspection proceedings and fines imposed in misdemeanour proceedings, certain acts and activities affecting the environment can qualify as a criminal offence as prescribed by the Slovenian Criminal Code. Such are prosecuted by the state prosecutor’s office and are conducted by courts of general jurisdiction. The Slovenian Criminal Code provides for 15 different criminal offences in the field, with imprisonment sentences ranging from six months to five years, or even eight years if the offence results in human casualties.

Under the Liability of Legal Persons for Criminal Offences Act, companies and other legal entities can also be held liable for criminal offences in this respect and can face material sentences. Please see 6.1 Liability for Environmental Damage or Breaches of Environmental Law for more information on this.

In case of environmental incidents and breaches of law or permits, the supervising authority – ie, the competent inspectorate – when performing inspection proceedings have, among others, the following investigative and access rights:

  • the right to enter business premises of natural and legal persons and to inspect the device or plant in which the source of environmental pollution is located, as well as to inspect other documents, goods, business books, contracts, etc;
  • the right to interrogate parties and witnesses;
  • the right to examine, reproduce and seize documents or other objects;
  • the right to obtain and use personal and other data from official records and other databases;
  • the right to take samples of the goods, materials and equipment and carry out examinations of the samples taken;
  • the right to photograph or record the persons, premises, facilities, installations, etc; and
  • the right to obtain other documents and perform other actions necessary to determine the level of environmental pollution or other infringements of the law.

In certain cases, the inspection authorities even have a right to make a fictitious purchase in order to establish the infringement or to collect data on the infringing party.

In case of plants and devices that can cause large-scale environmental harm (ie, pollution), the inspectorate can also prepare an inspection plan beforehand which includes the ordinary and extraordinary measures, procedures and other specifics in respect of performing control and inspections over these plants and devices.

Types of Environmental Permits and Consents in the Republic of Slovenia

According to the Slovenian Environmental Protection Act an environmental permit (okoljevarstveno dovoljenje) is required for operation of the following facilities.

  • A device or installation in which an activity that can cause large-scale pollution will be performed (eg, oil refinery, cement plants, metal foundries, certain chemical plants, etc). The types of activities and installations that can cause large-scale environmental pollution, measures to prevent such pollution and other specifics are determined in the decree on activities and installations causing large-scale environmental pollution.
  • A device or installation other than those defined under the first point above. These are devices and installations that cause emissions to air, water or soil above the prescribed emission limits. Detailed specifics are provided in the decree on the emission of substances into the atmosphere from stationary sources of pollution.
  • A plant (or making any change in a plant) that uses or holds certain harmful materials and substances as per the decree on the prevention of major accidents and mitigation of their consequences.

Prior to starting any activity (eg, construction) that is likely to have a significant impact on the environment an environmental impact assessment procedure must be carried out in which the Ministry of the Environment and Spatial Planning grants the environmental consent (okoljevarstveno soglasje) and determines the condition for carrying out such activity.

Procedure for Obtaining Environmental Permits and Consents

The procedure for obtaining any of the above-listed environmental permits starts with filing of an application to the Slovenian Environmental Agency. In certain cases, it is necessary to ensure participation of the general public in the procedure for obtaining the environmental permit. The general public can express opinions and make comments to the proposed application and the underlying case projects and studies as well as to the proposed decision of the Ministry of the Environment and Spatial Planning on the environmental permit. The ministry has to take these opinions and comments into consideration and include them, as well as the ministry’s position on these, in the decision on granting or rejecting the environmental permit. The deadlines for making a decision are three to six months, depending on the type of the environmental permit that is applied for. As a legal remedy against the decision on the environmental permit, a claim can be filed with the competent administrative court.

The procedure for obtaining the environmental consent is also started before the Slovenian Environmental Agency. In case the potential impact on the environment is connected to the proposed construction, the procedure of the environmental impact assessment and the procedure for the issuing of the building permit are joint in an integral procedure before the Ministry of the Environment and Spatial Planning. If the potential impacts are not linked to construction, then the environmental consent is given by the Slovenian Environmental Agency. In each case an environmental impact assessment study is prepared, participation of the general public must be ensured. The deadline for the decision is three months from the date of the complete application.

Under Slovenian law there are three main types of liability that can be imposed in relation to environmental damage and breaches of environmental law.

Administrative liability under the Environmental Protection Act is primarily intended to return the environment into its original state. Under the administrative liability the inspectorate authorities shall have the possibility to impose certain measures to ensure compliance with environmental protection rules and impose fines for acts defined as misdemeanours. The polluter pays principle is applicable in respect of certain types of activities and requires the polluter to undertake all measures to prevent the occurrence of environmental damage or rehabilitate the environment.

Civil liability according to the general rules of the Code of Obligations may be imposed where the environmental burden causes lawfully recognised damage to a third party who then has the right to demand damages in a litigation procedure.

Criminal liability is prescribed in the Criminal Code for 15 criminal acts against the environment and natural resources, with imprisonment sentences ranging from six months to five years, or even eight years if the offence results in human casualties. Under the Liability of Legal Persons for Criminal Offences Act, companies and other legal entities can also be held liable for criminal offences in this respect and can face material sentences, including monetary fines and even termination of the company.

Under the polluter pays principle implemented in the Slovenian environment protection legislation, the operator or landowner who is responsible for the incident shall be responsible to undertake the measures which are necessary and imposed for the rehabilitation of the environment. Therefore, the current operator or owner is not liable for incidents which occurred while the relevant assets were still operated or owned by another person. Nonetheless, the law provides that where there is more than one person responsible for the damage and the exact liability of each person cannot be established, those persons shall be jointly and severally liable.

Different types of liability applicable to environmental incidents under Slovenian law are described in 4.1 Key Types of Liability. In respect of those liabilities the following defences, limits and conditions should be considered:

  • expiration of limitation periods in respect of administrative, civil and criminal liability;
  • administrative liability may be imposed only in respect of performance of certain types of activities, specifically enumerated in the law when the environmental damage is not caused intentionally or due to gross negligence;
  • in case of civil liability all four elements of civil liability will have to be established:
    1. there is harm;
    2. the harm shall arise from an unlawful act or omission;
    3. there is a causal link between the harm that has occurred and the unlawful act or omission; and
    4. the responsibility of the person who caused the damage must be established;
  • criminal liability for certain criminal acts will only be established if the damage to the environment was caused by violation of the applicable rules;
  • a legal entity’s responsibility for a criminal act will only be possible under the conditions described under 6.1 Liability for Environmental Damage or Breaches of Environmental Law.

In respect of administrative and civil liability as described under 4.1 Key Types of Liability, the responsibility of a corporate entity shall not differ from the liability of an individual.

However, special conditions apply for the criminal liability of a legal entity. In particular, under the Liability of Legal Persons for Criminal Offences Act, the individual who committed the criminal act will have to be convicted and will have to commit the act in the name, on behalf or for the benefit of the legal entity. Additionally, one of the following conditions will have to be met:

  • the act amounting to a criminal act was an execution of an unlawful decision, instruction or approval by the management or supervisory bodies of the legal entity;
  • the management or supervisory bodies of the legal entity influenced the perpetrator or enabled him or her to commit the criminal act;
  • the legal entity obtained illegal proceeds from the criminal act or items obtained through a criminal act; or
  • the management and supervisory bodies of the legal entity have omitted their due supervision over the subordinated workers.

Slovenian provisions for protection of environment do not provide for liability of the shareholders or a parent company for environmental damage or breaches of environmental law committed by a legal entity they own or control. However, under Slovenian corporate law there is a so-called "principle of mandatory instructions"; according to this principle, the parent company may be liable to its subsidiary for the instructions given by the parent company to the subsidiary and which ultimately cause harm to the subsidiary.

The Environmental Protection Act also foresees monetary fines for breaches of rules for protection of the environment which can be imposed on the responsible individual within the legal entity.

Such individuals may also be held liable under criminal law, in which case they may be subject to a monetary fine or even imprisonment ranging from six months to five years, or even eight years if the offence results in human casualties.

Additionally, a third party who incurs harm may also bring a civil claim against the directors or other officers of a legal entity. In such event, general rules for civil liability as laid down in the Code of Obligations shall apply and the four elements of civil liability described under 5.2 Types of Liability and Key Defences will have to be established also in relation to the relevant director or officer.

Insurance against personal liability of directors and other officers is available under the directors' and officers' (D&O) insurance policies.

Slovenian environmental law does not foresee specific liability of financial institutions or lenders aimed at financing of projects that result in environmental damage or breaches of environmental law caused by their creditors.

Lenders do not need to protect themselves from liability risk as there are no bases which would allow to establish their responsibility for environmental damage or breaches of environmental law caused by their creditors.

While it remains to be determined by court practice to what extent private persons can directly enforce the constitutionally guaranteed rights and, since the Environmental Protection Act does not provide for specific civil law liability, claims for compensation and certain other remedies can be brought under the generally applicable civil law rules.

Under the general civil liability rule provided in the Code of Obligations, any person causing damage to another shall compensate the damages unless they can prove that the damages were caused without their guilt. Objective (no-guilt) liability is provided for in instances where damages are caused from objects or activities which represent a greater damage risk or in certain other narrowly specified cases.

Property laws separately provide legal basis for nuisance claims, as the Law of Property Code provides that an owner of real property shall refrain from any actions and shall remedy any causes stemming from its property and cause detriment to the use of neighbouring properties, if this is excessive given the nature and purpose of real estate and local customs or if it causes substantial damage. 

In principle, exemplary or punitive damages are not in line with the general rules of damage liability in Slovenia which require a full (but fair) compensation for damages. Exemptions to these rules are rare and do not allow for grave disproportion from the above.

It is likely that excessive exemplary or punitive damages would be considered contrary to the Slovenian public order in the event a foreign judgment was being enforced in Slovenia.

As of 2108, when the Collective Actions Act was implemented, class actions are specifically governed in Slovenia and are permitted in a limited list of situations, including enforcing damage liability due to environmental incidents (accidents) as defined in the Environmental Protection Act.

Since the legislation has only been in place for two years, no relevant class actions have been initiated in relation to environmental incidents, although there have been some cases where the media have reported this being discussed.

There have been very few high-impact cases relating to civil liability related to environmental damages in recent Slovenian legal history. 

In relation to certain brownfield or heavily polluted areas, or to some larger polluters or hazardous activities (related to air pollution or asbestos, for example), damaged parties have filed individual or joint claims against the polluters, but no case has really set a benchmark for future claimants.

As already mentioned, Slovenian law does not recognise exemplary or punitive damages and shall only consider excessive nuisance (or even pollution) as legally relevant. In addition, Slovenian courts are generally not claimant-friendly in terms of awarding high damages in life-and-limb cases and court proceedings are lengthy. 

In this environment, private parties are not encouraged to claim damages against large polluters, but there have been some cases where claims have been successful – however, some of these have involved an extremely long litigation process.

Slovenian legislation does not foresee the possibility of contractually transferring the liability for damages (whether direct, consequential or incidental) or liability arising out of breaches of law from the party to be held liable under the law to another party. Nonetheless, conclusion of an agreement on the transfer of such liabilities shall not be prohibited, but the agreement shall only have effect between the parties to such agreement.

In particular, the Slovenian courts have established that the person to be held liable under the law cannot evade its responsibility for liabilities arising out of statutory provisions by contractually transferring such responsibility to a third party. Consequently, an agreement on transfer of liability for environmental damages or fines imposed in respect of breaches of environmental protection provisions shall only have effect between the parties to such agreement (eg, the seller and the buyer of a land plot), but the regulators or the courts will not consider it in imposing any fines or liability for damages.

Most insurance companies in Slovenia offer also environmental insurance as part of their general liability insurance and D&O insurance offers. Typically, environmental insurance will cover (i) civil liability for damages caused to third parties due to environmental events on the side of the insured party and (ii) costs related to the monitoring, discovery and removal of environmental damage. However, according to the data analysed by the insurance companies, the level of environmental insurances held by Slovenian companies is still relatively low as companies seem to underestimate their potential exposure to environmental liabilities.

Under the Environmental Protection Act, land is defined as the top layer of the earth's crust between rocks and the surface made up of mineral particles, organic matter, water, air and living organisms. It is also determined that contamination of the environment is a direct or indirect introduction of substance or energy into the air, land or water or generation of waste. Here, our focus will be on contamination of land, which can happen by pollution or by inappropriate waste disposal.

Key Laws Governing Contaminated Land

General rules regarding land contamination are included in the Environmental Protection Act and the Nature Conservation Act. Slovenia has also adopted a National Environment Protection Programme with a schedule of measures until 2030; these measures will determine the current state of the land in Slovenia and the biggest challenges faced, together with the goals, guidelines and measures to achieve land protection objectives. According to the programme, the biggest problems are covering the land with various impermeable materials (such as asphalt) and compacting of the land during construction.

Specifically, in regard to land contamination, the biggest issue is proper waste disposal. In order to deal with this issue, Slovenia adopted a decree on waste landfills that determines that disposal of waste is only allowed on certified landfills. The decree also includes the requirements that landfills need to fulfil in order to ensure proper protection of land.

Other major factors that contribute to land contamination are agriculture and industry, especially by releasing various substances into the land. This is why Slovenia also adopted a decree on limit values, alert thresholds and critical levels of dangerous substances into the soil.

Remediation Requirements

Under the Environmental Protection Act there is a requirement to monitor the state of the environment and environmental pollution. In case of contamination of land, remedial measures must be performed with an aim to remove, control or reduce pollutants in such a way that this land is no longer causing risks to human health. Further requirements are set forth with a decree on the types of measures for remediation of environmental damage. In addition to the measures aimed to improve the physical state of land, the Slovenian environmental protection legislation also includes an obligation of the polluter who caused the relevant contamination to pay a remuneration in form of environmental taxes for environmental pollution.

The key policy instruments relating to climate change in Slovenia are the establishment of the so-called "Climate Change Fund" and regulation of the greenhouse gas emission allowance trading scheme, whereas key legislation act/policies are in addition to the Slovenian Environmental Protection Act also the Paris Agreement, the Energy Concept of Slovenia and the Integrated National Energy and Climate Plan.

The greenhouse gas emission allowance trading scheme allows for trading with emission coupons. All operators of devices and plants that must obtain a permit to emit greenhouse gases in accordance with the Slovenian Environmental Protection Act, as well as aircraft operators, are included in this trading scheme. The scheme currently includes 49 installation operators – ie, all thermal power plants, steel plants, and producers of steel, glass, ceramic, cement, lime, paper and similar. In 2018, the installation operators were handed out 1,731,707 emission rights and they handed over 6,491,912 emission rights.

Based on the Slovenian Environmental Protection Act, there is also a special item of the state budget – a Climate Change Fund. The purpose of this fund is to provide co-financing of measures and actions aimed at mitigating the consequences of climate change, adaptations to these consequences and development of renewables. The fund is managed by the Ministry of the Environment and Spatial Planning and financed through the income achieved by emissions trading. Spending of the funds is determined by governmental decree.

The Environmental Protection Act determines protection of the environment from pollution as the key condition for sustainable development, thereby determining fundamental principles of environment protection, measures for environment protection, monitoring of environment and environmental information, economic and financial instruments of environment protection, environment protection public services and other issues related to protection of the environment. On the basis of the Environmental Protection Act, an extensive amount of secondary legislation was passed which further regulates environment protection and climate change regulation.

The Ministry of the Environment and Spatial Planning has also prepared a draft of the Law on Climate Policy of Slovenia which foresees that the country shall adopt a long-term climate strategy which would determine the objectives of climate policies in respect of individual sectors. However, the law and the strategy have not been adopted so far.

Slovenia signed the Paris Agreement, together with all other EU member states, on 22 April 2016. The Paris Agreement was ratified by Slovenia on 17 November 2016 with the Act Ratifying the Paris Agreement which entered into force on 3 December 2016. As part of the EU’s and its member states’ commitment to reduce greenhouse gases emissions by at least 40% by 2030 as compared to 1990, Slovenia shall reduce its greenhouse gases emissions by at least 15% by 2030 as compared to 2005.

In addition to the Paris Agreement, the Energy Concept of Slovenia is the basic strategic national energy programme. According to the Slovenian Energy Act, the Energy Concept of Slovenia shall determine – on the basis of projections for economic, environmental and social development of Slovenia and on the basis of international commitments – the goals for achieving reliable, sustainable and competitive energy supply for the next 20 years, with an outlook to the next 40 years. The Ministry of Infrastructure is preparing the Energy Concept of Slovenia which shall determine Slovenia’s goals in different fields of energy policy until 2030, with an outlook to 2050.

This strategic document is for guidance and consequently will not determine individual projects, but will rather lay down directions to be followed until 2030 (with frameworks until 2050). Thereby, the Energy Concept of Slovenia shall determine the baseline for future decisions in respect of provision of reliable energy supply in a sustainable and competitive way.

In connection to the subject of reducing the greenhouse gas emissions, the Slovenian government has adopted on 27 February 2020 the Integrated National Energy and Climate Plan (which was also submitted to the European Commission, according to the EU Regulation 2018/1999 on the Governance of the Energy Union and Climate Action). This plan determines the goals, policies and measures for the period until 2030 (with an outlook to 2040) on all five dimensions of the Energy Union:

  • energy security;
  • the internal energy market;
  • energy efficiency;
  • decarbonisation; and
  • research, innovation and competitiveness.

The plan foresees that, by 2030, the total greenhouse gas emissions shall decrease by a total of 36% as compared to 2005 (and 40% as compared to 1990).

Asbestos is a natural mineral that was commonly used as a building material in the previous century as it is an excellent electrical insulator and is highly heat-resistant. However, it was later found that asbestos can lead to various deadly diseases, such as asbestosis and cancer, which is why the prohibition of its use in the mainstream construction was prescribed in the developed world. Within the EU, this was achieved with the Directive 1999/77/EU that was implemented into Slovenian legislation with a decree prohibiting and restricting production, trade and use of asbestos and asbestos products from 1 January 2003 forward.

Even though it is no longer allowed to use asbestos for new constructions, it is still present in older buildings. Therefore, the Slovenian legislator also determined the measures on how to deal with these materials and how to dispose of them.

Disposal of Materials Containing Asbestos in the Demolition, Reconstruction or Maintenance of Buildings

In accordance with the Decree on the conditions for the disposal of materials containing asbestos in the demolition, reconstruction or maintenance of buildings and in the maintenance and decommissioning of plants prior to designing the reconstruction or removal of the facility, the investor must determine whether the workers will be exposed to any materials containing asbestos.

If so, these works can only be performed by a person who has obtained an environmental permit from the Ministry of the Environment and Spatial Planning. When handling these materials containing asbestos, the decree provides that such materials must be sprayed with water before their removal or treatment in order to prevent the release of asbestos fibres. The materials containing asbestos must be packaged in a way that prevents the release of asbestos fibres.

Disposal of Waste Containing Asbestos

In addition to the legislation regulating waste management, landfills and incineration of waste, the main act regulating the asbestos waste is the decree on management of waste containing asbestos. Asbestos and waste to which asbestos fibres are adhered to must be (i) treated by asbestos fibre hardening or destruction processes or (ii) bagged in a way that prevents the release of asbestos fibres. Containers and bags containing asbestos waste must be clearly and visibly marked with the inscription “asbestos waste”. Moreover, it is not allowed to mix the waste containing asbestos or transport it unless the appropriate safety measures are ensured. It is important to note that only a person who has obtained an environmental permit can perform asbestos waste recovery and disposal.

Current Situation

As emissions of asbestos still exist, either during reconstruction, waste disposal or similar, they need to be properly regulated. This is achieved through the decree on the emission of asbestos into the atmosphere and in the discharge of waste water from installations using asbestos. This decree determines the maximum-allowed values of asbestos emissions. Slovenia also adopted the Act Concerning Remedying the Consequences of Work with Asbestos that determines occupational diseases incurred due to asbestos exposure, assessment and payment of compensation and more favourable conditions for gaining the right to disability pension for people diagnosed with the asbestos-related occupational disease.

In the field of waste management, the Environmental Protection Act provides key principles of waste treatment and management. A more detailed regulation is provided in the decree on waste, which provides a more detailed set of rules on waste treatment and management and other conditions to prevent or reduce the adverse effects of waste generation and to reduce the overall impact of the use of natural resources and to improve the efficiency of the use of natural resources. This decree is applicable to all types of waste and is complemented by specific regulations that deal with:

  • individual types of waste (eg, hazardous and radioactive waste, packaging, batteries, motor vehicles, electronic devices, asbestos, etc);
  • operation of waste management facilities (ie, waste disposal and incineration); and
  • international movements of waste.

Under Slovenian law the extended responsibility of the producer or consignor of waste is established for – among others – the following mass waste streams:

  • packaging materials;
  • used motor vehicles;
  • used tyres, used (vehicle) batteries;
  • pharmaceuticals;
  • grave candles;
  • plant protection products containing hazardous substances.

In respect of packaging materials, the extended liability applies to all waste generated in industry, crafts, trade, services and other activities, households or elsewhere, regardless of the materials used for packaging. An exception is provided for those manufacturers that place less than 15 tonnes of packaging materials on the market per year. There are proposals to lower this threshold to 1 tonne of packaging materials per year, but this proposal has not been adopted yet. Irrespective of the quantity of packaging materials placed on the market, an exception to the extended liability also applies to returnable packaging.

The obligations of the producers of goods to design, take back, recover, recycle or dispose of the goods once they become waste differ depending on the type of waste.

For example, the producer of the packaging materials must ensure the collection and processing of the packaging materials as well as to ensure financing for these actions. If the producer or the purchaser of the packaged goods does not fulfil these obligations, they must be fulfilled by the person who supplies the goods to the distributor.

Vehicle manufacturers must, in addition to the obligations relating to the design of the vehicles (ie, restriction of use of hazardous materials and planning for the dismantling, re-use and recycling), also set up and finance the collection of end-of-life vehicles and the disposal and recycling of these.

The tyre manufacturers must ensure all used tyres in a calendar year are collected and appropriately processed.

In case of an environmental incident, the person who caused it must immediately notify the Administration of the Republic of Slovenia for Civil Protection and Disaster Relief and perform the urgent measures that reduce the harmful consequences to the environment. An environmental incident is defined in the Environmental Protection Act as an uncontrolled or unforeseen event caused by an intervention in the environment and which sooner or later results in a direct or indirect threat to human life or health or the quality of the environment. According to the regulations on protection against natural and other disasters, an ecological disaster (ie, naturally occurring) also counts as an environmental incident.

If the environmental incident also caused environmental damage that requires remedial measures in order to be eliminated or reduced, the polluter must adopt and implement all the necessary measures to prevent the occurrence of environmental damage or its remediation. In case the polluter is unknown, cannot be determined or the incident is the result of a natural phenomenon, such measures are prepared and implemented by the Ministry of the Environment and Spatial Planning.

Additionally, the Environmental Protection Act also establishes the polluter pays principle and, among others, stipulates that the polluter shall cover all costs of remedial measures in case of an environmental damage.

All the data related to the environment and its protection shall be publicly accessible, which is also one of the provisions of the current Environmental Protection Act that implements the principle of publicity. According to this principle, all environmental data shall be public and everyone shall have access to said data in accordance with the law. In addition to accessing the data obtained through environmental monitoring (ie, the data on the state and trends of the environment), the general public can also access proposals and any new applicable environmental regulations.

The Ministry of the Environment and Spatial Planning must, together with other ministries, prepare an environmental report at least every four years. The same rule applies also to the municipalities and/or other self-governing local communities. Such environmental report must include the information on the state of the environment, pollution, biodiversity, endangered and protected areas, long-term trends and changes in the environment and similar. All the above information shall also be accessible via the internet.

In Slovenia there is no general requirement for all corporate entities to disclose environmental information in their annual reports; however, this obligation does apply to certain entities – for example, entities with more than 500 employees.

In practice, many companies – especially those whose shares are traded on the public stock exchange – do share their environmental information with the public, as environmental friendliness is an important factor for many people when deciding which products to buy or who to do business with.

In Slovenian M&A, real estate property transaction and financing practice, there is no clear and unique approach on environmental due diligence, although the awareness of importance of understanding the environmental issues related to the target assets or site is increasing.

In M&A, it is common that the legal review incorporates a review of regulatory permits (including environmental) and reporting on any formal incompliances and pending inspection processes or environment-related legal disputes, but it is not a standard to perform a full-scope screening and expert evaluation of environmental impact; of course, this does not apply in industrial and energy sector where environmental due diligence is generally a key element and is performed by expert organisations in the field.

In real estate transactions, the approach of the investor depends on the particular situation. In greenfield projects, test screening might be performed or not, but it is more common in brownfield deals, depending on the exposure, past use of the land, intended project and also scope of reliance on seller’s warranties.

We highly recommend that the approach to the environmental aspect of the deal is discussed earlier in the project, as it is typically hard to draft in strong environmental warranties late in the negotiation process.

In financing transactions, environmental due diligence is rare – save for very specific case with high exposure or if financing is performed by international financial institutions (EBRD, for example), this is not a standard.

There are no explicit rules in environmental laws and regulations which would force the seller to disclose environmental information to a purchaser.

The generally agreed disclosure rules as agreed between the parties to the transaction shall typically apply. However, under the Code of Obligations, the seller shall have a greater liability if it was aware of a defect or the subject of sale, but did not reveal it. The general principles of civil law – such as the principle of good faith and fair dealing – will also require the seller to a certain level of disclosure.

Based on the basic polluter pays principle, the Environmental Protection Act provides that environmental taxes can be introduced due to pollution or due to content of hazardous substances in raw materials, semi-finished products and finished products.

Deriving from the above, the environmental taxes are prescribed depending on:

  • the type, quantity or properties of the emissions from the individual source;
  • the type, quantity or properties of waste; and/or
  • the contents of the hazardous substances.

The main obligations of the liable persons are to:

  • report to the relevant activities;
  • keep records of the underlying circumstances;
  • file returns to the locally competent authorities; and
  • payment of tax.

Environmental taxes are currently payable in Slovenia within this framework for eight types of pollutions/pollutants:

  • carbon dioxide emissions;
  • use of lubricating oils and fluids;
  • waste packaging;
  • waste electronic and electrical equipment;
  • used tyres;
  • volatile organic compounds;
  • waste water discharge; and
  • waste disposal.

On the other side of the coin, the Environmental Protection Act provides for certain exemptions, reductions and refunds of paid taxes in the amount of invested funds intended for adaptation to prescribed limit values and for adoption of other measures that contribute to the reduction of pollution below the prescribed values. A liable person shall have the right to claim a reduction or exemption if they are the polluter and they have entered into an agreement with the state on additional pollution reduction or if they are a person who is included into the fulfilment of internationally binding pollution reduction obligations of the state. Certain restrictions on state aid apply.

In this respect, the Corporate Income Tax Act and Personal Income Tax Act provide for certain benefits, such as:

  • tax relief for environmental donations;
  • tax relief for R&D or for investment funding (eg, into hybrid vehicles etc); and
  • de minimis exemptions. 
Odvetniki Šelih & partnerji, o.p., d.o.o.

Komenskega ulica 36
1000 Ljubljana
Slovenia

+386 1 300 76 50

+386 1 433 70 98

info@selih.si www.selih.si
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Law and Practice

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Odvetniki Šelih & partnerji, o.p., d.o.o. is a full-service business law firm that continues the tradition of a partnership established in 1961. With an unwavering focus on its clients’ business objectives, professional know-how, firm-wide dedication, responsiveness and hard work, it offers top-tier legal advice in Slovenia. The firm's energy and environmental law department advises on all aspects of environmental law, including zoning permits and due diligence, and assists its clients with the environmental aspects of commercial transactions. The firm's lawyers advise companies facing difficulties as a result of environmental violations and represent clients before the respective administrative bodies and courts. In advising on the entire spectrum of environmental, energy, natural resources and infrastructure law, its lawyers combine their specific knowledge of these areas with a broader understanding of company law, M&A, real estate law, as well as finance and civil law.

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