Sodno varstvo v sporih iz koncesijskih pogodb

slovenian

2023

volume 59, issue 1/2

administrative dispute   commercial dispute   concession contract   ex post judicial protection

Univerza v Ljubljani, Pravna fakulteta

In disputes arising from concession contracts, judicial protection is divided between courts of general jurisdiction and administrative courts. This reflects the dual nature of concession contracts, which incorporate elements of civil (contract) law and administrative law. If the subject matter of the dispute falls within the sphere of administrative law, as is frequently demonstrated by the grantor’s issuance of administrative acts or other acts of authority in connection with the performance of the concession contract, judicial protection is generally provided before administrative courts. However, if the dispute involves a matter governed by the rules of contract law, the dispute falls within the jurisdiction of the courts of general jurisdiction. A special regime applies to concession contracts falling within the scope of EU law, which are also subject to judicial protection under the rules of the ZPVPJN. However, such a delimitation of jurisdiction does not necessarily hold, as the statutory regime frequently fails to distinguish clearly enough between the public law and the private law elements of a concession contract, resulting in cases being brought before different courts and to (unnecessary) prolongation of the proceedings. Disputes arising from concession contracts should therefore be decided by a single court, i.e. the Administrative Court.

12.11.2024