The ‘Six-Pack’ is a package of six legislative measures (five regulations and one directive) improving the Economic governance in the EU. The Commission made the original proposals in September 2010. After negotiations between the Council and the European Parliament, the package was adopted in November 2011 and entered into force on December 13, 2011. Part of the ‘Six-Pack’ measures applies only to the Eurozone member states (see the individual titles below).
The ‘Six-Pack’ measures reinforce the Stability and Growth Pact (SGP), among others by introducing a new Macroeconomic Imbalances Procedure, new sanctions (for Eurozone member states) and reversed qualified majority voting. Also, there is more attention for the debt-criterion.
What positions did Slovenia adopt in the negotiation of the ‘Six-Pack’, in particular in relation to the implications of the ‘Six-Pack’ for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process?
On November 25 2010 the government discussed the Directive on the requirements for the fiscal framework. Slovenia did in principle agree with the draft.  It however emphasized that although Slovenia’s fiscal framework meets most of the requirements determined in the directive, Slovenia believed that member states should maintain their responsibility in determining their budget. For this reason, Slovenia questioned the European Commission’s decision to use a directive as a tool to address the issue. Slovenia agreed with the need to ensure transparency and the consideration of macroeconomic forecasts. It also supported the implementation of a numerical fiscal rule, in particular the implementation of budgetary rules that are determined for a longer period. Slovenia was sceptical, however, about the introduction of the medium term goals in the fiscal rule, determined through the methodology adopted by the European Commission. Slovenia argued that the methodology suggested by the European Commission gave too much weight to the implicit obligations arising from the ageing of the population, and less to other explicit obligations. Slovenia also maintained that the implementation of the directive is possible in other ways than through legal acts.
On the same day, the Government discussed the Regulation on speeding up and clarifying the implementation of the excessive deficit procedure  Slovenia did in general agree with the proposal. It however maintained that there was a need to revise Article 2 of the draft by taking into account paragraph 23 of the final report prepared by the working group of the European council of the meeting on October 29 2010. The paragraph states that “These sanctions and remedies cannot be used retroactively. Some elements of this proposal will require a transition period.”
The Government also discussed the Regulation on prevention and correction of macroeconomic imbalances. Slovenia was sceptical towards the proposed regulation. It emphasized that the proposal conferred too much power to the European Commission, and did not comply with the final Task Force Report to the European Council endorsed by the European Council on October 29 2010. Slovenia maintained that the Council should determine the indicators/criteria. They should be better defined and set a higher level. At the same time, they should determine their sustainable threshold, and in this way take into account the specific position of each member state. Slovenia also questioned the measurability of such indicators/criteria. It also suggested that the regulation should also clearly determine that it refers only to those macroeconomic imbalances which are detrimental for the work and stability of the EU and EMU. Additionally, Slovenia maintained that the regulation should clearly distinguish between the concepts of macroeconomic imbalance, appearance of macroeconomic imbalance, and excessive macroeconomic imbalance. Slovenia was also sceptical towards the adoption of an automatic process that would follow in case of excessive macroeconomic imbalances.
Further, the Government discussed its position towards the Regulation on the effective enforcement of budgetary surveillance in the euro area. Slovenia did in principle agree with the suggested Regulation. It emphasized that, as a member of the Euro zone, Slovenia favours a stronger monitoring mechanism. Slovenia held that it is committed to a strong operationalization of the debt criterion, with minimal exceptions.
During the same meeting the Government discussed also the Regulation on enforcement measures to correct excessive macroeconomic imbalances in the euro area. Slovenia maintained that the suggested Regulation conferred too much power to the European Commission and did not comply with the final report prepared by the working group for the European council and endorsed by the European Council during its meeting of October 29 2010. The Government again emphasized that the parameters/indicators should be determined more precisely, they should set a higher limit, and they should set their own sustainability. They should also take into account the position of each member state. The Slovenian Government also questioned the measurability of such parameters. The regulation should also clearly determine that it refers only to those macroeconomic imbalances which are detrimental for the work and stability of the EU and EMU. It should also clearly distinguish between the concepts of macroeconomic imbalance, appearance of macroeconomic imbalance, and excessive macroeconomic imbalance.
Finally, the Government discussed also the revision of Regulation 1466/97. Slovenia was against the introduction of further exceptions in the evaluation of compliance with the Stability Pact. In this respect, Slovenia suggested to use the agreed wording determined in the final report of the working group of the European Council and, consequently, agree that the text of article 5 does not refer to the high macroeconomic imbalances. 
What measures are being taken to implement Directive 2011/85/EU on requirements for budgetary frameworks (required before 31 December 2013, article 15 Directive 2011/85/EU)?
There was an extensive work on the revision of the Public Finance act, with the aim to implement in national law the requirements of Directive 2011/85/EU. On September 29, 2011, the Government determined the text of the Act amending the Public Finance Act. The government estimated that it could not propose to the National Assembly to adopt a comprehensive reform of the law on public finances. It nonetheless maintained that, to avoid serious negative consequences for the country in international financial markets, it was appropriate to adopt the necessary changes of the Law on public finances through an urgency procedure. Such changes would provide strong legal assurances regarding Slovenia’s commitment to the objectives of the medium-term sustainability of public finances. The Government emphasized the need to determine the fiscal rule in an organic law and in this way improve the monitoring of public spending. It also emphasized the need to adopt a medium term budgetary planning. It emphasized that such instrument was in the current year already in use, but there was a need to give it a statutory nature. The Government urged the National Assembly to adopt the Act as soon as possible. On October 6, 2011, the Government confirmed the text of the Act amending the Public Finance Act. The amendments provided that the National Assembly would have to adopt a medium term public finance framework for the period of 5 years. The act would also determine the limit of the public expenditure for the next five year, and it determines that the debt cannot amount to more than 48% of the BDP, and the cumulative amount of guarantees offered by the state, cannot exceed 20%. The Act also made reference to the Fiscal council.  The end of the year 2011 was however a period of high political instability in Slovenia. The government led by Pahor fell and, in December 2011, Slovenia had parliamentary elections. On December 22 2011, the president of the National Assembly announced that all the legislative processes initiated by the previous term had ended, including the procedure for the adoption of the Act amending the Public Finance Act.
On February 10, 2012 a new government was appointed. On January 1, 2012, the (outgoing) Government adopted the Draft of the Act amending the Public finance act and submitted it to the National Assembly. The draft Act defined the ceiling for budgetary expenditure for the next five years and stipulates that, due to the long-term sustainability of public finances, general government debt should not exceed 48% of GDP, while the total amount of government-issued guarantees should not exceed 20%. “Due to the introduction of the medium-term budgetary framework, the procedures for drafting and passing the budget must be changed. As budget planning at the level of the state and local authorities must be coordinated, local authorities must also introduce biannual budget plans.” The Act also provided that a “greater transparency will be achieved by systemic reporting on outstanding tax payments and irrecoverable tax (loss of tax-based income due to specific exemptions from tax and deductions). To ensure greater budgetary discipline, the Act provided that the Fiscal Council—a body established already in 2009—would be given more competences and become an advisory body to the National Assembly, which also has the competence to assess the medium-term budgetary framework and the implementation of fiscal rules. With regard to loan-taking, the Act determined the purpose for which the government can take on loans. The Act also determined more stringent rules for loans of indirect budget users (particularly public institutions), as this is permitted only if the user can prove that the debt can be repaid from non-budget funds (commercial activity). In such cases, the Ministry of Finance would issue an approval if the relevant ministry concurs and if the loan is still within the framework stipulated by the annual budget implementation act.”
Public sources do not report, however, any further development on the Act amending the Public finance act in 2012. Only in May 2013, the Government announced again its intention to revise the Public Finance Act and the related Accounting Act. The Government maintained that the revision of the Public Finance Act should have to take into account the fiscal rule as well as all other obligations incurred by the State under the rules of economic governance and the rules implementing control mechanisms. The main objectives are the following: (i) to comply with EU legislation on economic governance;(ii) modernize the legal framework regulating the management of public finances;(iii) establish a modern system mechanism for governance of public finances, including ensuring the quality of public finances and the corresponding control specific categories of spending;(iv) ensure macroeconomic stability and sustained and stable national economic development; (v) ensure greater transparency in the collection and spending of public funds through more consistent respect of the principle that all mandatory taxes and charges, as well as all use of the collected funds carried over the budgets of the four public funds. The Act Amending the Public Finance Act was ultimately adopted in November 2013, and entered into force in December 2013. The revision nonetheless addressed only the acquisition of state capital investments to maintain the stability of the financial system. In January 2014, Slovenia received an official notice from the European Commission regarding Slovenian’s failure to notify national measures transposing Council Directive 2011/85 / EU (8 November 2011). In the report on the work of the Government 2013-2014, the Government maintained that the Fiscal rule Act which for the most part would implement the directive, was discussed but not adopted (as explained in the answer to question IX.4, the provision of a golden fiscal rule has been implemented in the Slovenian constitution in 2013). In June 2014, the proposal of the Law on the fiscal rule proposed by the right wing party SDS was ultimately rejected. The government further maintained that it is necessary to simultaneously change the process of adopting or changing the state budget, which is determined by the Rules of Procedure of the National Assembly. Further, the Government listed three acts that will be relevant for the implementation of the directive: the Fiscal rule act, the Public Finance act, and the Accounting Act. In October 2014, the European Commission again notified Slovenia about the need to implement the provisions on the budgetary framework. On this occasion, the Commission informed that if Slovenia does not report within two months the national measures for the implementation of the Directive, the Commission may initiate proceedings against it before the Court and request financial penalties.
What political/legal difficulties did Slovenia encounter in the implementation process, in particular in relation to implications of the directive for (budgetary) sovereignty, constitutional law and the budgetary process?
An important point of contention between the political parties was the implementation of a golden fiscal rule in the constitution (see answer IX.4).
Further, political parties had different views on the revision of the role of the Fiscal Council, a body that was established in 2009. On January 26, 2012, the Government adopted an official position towards the letter sent by the National Assembly concerning the amendment of the Public Finance Act, in particular with respect to the revisions of the Fiscal Council. The National Assembly pointed out that the draft uses several economic concepts that have an unclear meaning. The use of such terms decreases the legal certainty and the general understanding of the act. The National Assembly thus suggested to provide the definition of such terms. The National Assembly had also extensive comments on the suggestion to revise the Fiscal Council. The revisions provided that the Fiscal Council would become an independent body at the National Assembly, which would finance its activities, the operational work would be conducted by the technical-professional Secretariat of the National Assembly, which would report to the president of the Fiscal council. The National Assembly pointed out that this would represent a big change to the current system, and in the National Assembly’s view, there were insufficient reasons to support such change. It also pointed out that under the new system the Fiscal Council would have fewer members, and the draft act did not clarify how the transition would occur.
On January 27, 2012, the Government discussed again the proposal concerning the revision of the Public Finance act, in the part where it addresses the Fiscal Council. The Government clarified that the Directive on requirements for budgetary frameworks of the Member States requires in Article 4 that the macroeconomic and budgetary forecasts on which the fiscal planning is based is an impartial and comprehensive evaluation. The arguments for the establishment of the Fiscal Council are based on the perception that governments do not run their fiscal policy optimally, and there is consequently a need to establish a Fiscal Council that is independent from the executive branch, and able to monitor and assess their activities. The government agreed with the National Assembly that the independence of the Fiscal Council does not depend so much on the legislative framework, but there is a need to assure that its members perform their function in autonomy, without due constraints. The Government pointed out that it would be however difficult to achieve this if the institution that is part of the executive branch would also monitor its activities. The proposed amendment thus aimed to expand the duties of the Fiscal Council and assure its independence. The Government also emphasized that the proposed amendment took into account the current fiscal situation of Slovenia, in particular, a tendency to reduce the state’s operational costs. The Government agreed that the establishment of an independent body would be more desirable. However, such action would also involve a higher financial budget, and it would be in contradiction with the policy of reducing the public costs. Notwithstanding, the Government re-examined the proposed amendment to Article 12.g, where it determined that the technical-professional secretariat of the National Assembly would report to the President of the Fiscal Council, and evaluated the option to implement a transition period for the launch of the Fiscal Council. Finally, the Government emphasized that the final decision regarding the position and modus operandi of operation of the Fiscal Council had to be adopted by the National Assembly.
Macroeconomic and budgetary forecasts
What institution will be responsible for producing macroeconomic and budgetary forecasts (article 4(5) Directive 2011/85/EU)? What institution will conduct an unbiased and comprehensive evaluation of these forecasts (article 4(6) Directive 2011/85/EU)?
Under the current legislation, the Institute of Macroeconomic Analysis and Development (IMAD) provides the macroeconomic and budgetary forecasts. The government can nevertheless also rely on the forecast of other independent bodies.
Does Slovenia have in place an independent Fiscal Council (article 6(1) Directive 2011/85/EU: ‘independent bodies or bodies endowed with functional autonomy vis-à-vis the fiscal authorities of the Member States’)? What are its main characteristics? Does Slovenia have to create (or adapt) a Fiscal Council in order to implement Directive 2011/85/EU?
Slovenia has had a Fiscal Council since 2009. It is a consultative body for an independent assessment of the fiscal policy. The Fiscal Council should provide, among other thing, a subsequent assessment of the sustainability and stability of fiscal policy determined by the annual budget memorandum. It should also provide an opinion on the stability programme, and its compliance with the rules of the Stability and Growth Pact. The assessment of compliance shall consider the cyclical economic situation, and may be based on an independent assessment of economic trends by the Fiscal Council.
The implementation of Directive 2011/85/EU would nonetheless require some revision to the Fiscal Council. As mentioned in the answer to question VII.2, the Draft Law of the amendment of the Public finance act proposed to introduce changes to the responsibilities of the Fiscal council. In May 2012, the Constitutional Commission of the National Assembly discussed the possibility to adopt changes to Article 148 of the Slovenian constitution, which determine the basic principles of the budgetary process. There was a suggestion to introduce in the article a provision regarding the Fiscal Council.
There was however a strong disagreement with respect to the proposal to implement the provisions on the Fiscal council in the constitution. The economist Dr. Igor Masten emphasized that the Fiscal Council would have an ex ante function in the determination of the budget. It would monitor ex ante compliance with the fiscal rule. He emphasized that an ex post monitoring mechanism is often not sufficient because too late. If Slovenia wants to assure compliance with the fiscal rule, there is a need for an external body that monitors the Government’s compliance with the rule. To be reliable, such body should be unaffected by the daily political discussion. Such reliability could be obtained by giving this body a constitutional importance, Masten argued. In the relationship between the government and the central bank, there is an unwritten rule that, when a conflict arises, the central back is the one which should step back. Masten suggested that a similar approach should be adopted also in the relation between the government and the Fiscal Council. The government would thus have the option to adopt a decision against the position of the Fiscal Council. Such decision would however not come without costs. Ignoring the experts’ opinion stating that the suggested budget does not comply with the fiscal rule, and is thus unconstitutional, would be an important step. It would thus assure that the government takes seriously its compliance with the fiscal rule. Kristijan Petrovič—deputy president of the Court of Audit— also supported such position, maintaining that the highest level of independence of the Fiscal Council can only be assured through its incorporation in the constitution.
Borut Pahord (SD) however opposed such solution and suggested to delete the part of the act discussing the Fiscal Council. Although he agreed that the institution should have an important role, he maintained that the suggested solution would confer to the Fiscal council too much power, but too little responsibility. Other experts, such as Dr. Lojze Ude, were also against the implementation of provisions about the Fiscal council in the Constitution. Andrej Šircelj (SDS) emphasized that Slovenia already has a Fiscal Council, and in his view, the state does not have great benefits from it. Moreover, he maintained that the solution suggested would also require more financial resources. The party did however agree with the implementation of the provision in the constitution. The party NSi was also against the implementation of the provision in the constitution. At the time of the voting 13 votes were in favour, and 6 against.
On May 2013, the National Assembly approved the changes of Article 148 of the constitution. There is however no reference to the Fiscal council in the constitutional provision. The Constitutional amendment nonetheless provides for the adoption of the “implementation law “within six months from the entry into force of amendments to the Constitution. The Law will determine, inter alia, the role of the independent Fiscal Council.
Regulation No 1176/2011 on the prevention and correction of macroeconomic imbalances
What political/legal difficulties did Slovenia encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process?
See answer to question VII.1.
Regulation No 1175/2011 on strengthening budgetary surveillance positions
What changes to the rules on the budgetary process are made to accommodate the amended Medium-term Budgetary Objective (MTO) Procedure?
The draft Act Amending the Public Finance Act provided for the introduction of a Medium-term Budgetary Objective. In particular it determined a ceiling for budgetary expenditure for the next five years. Due to the introduction of the medium-term budgetary framework, the procedures for drafting and passing the budget must be changed. During the discussion on January 27, 2011, the National Assembly pointed out that the introduction of a medium-term fiscal objective would require changes in the Rules of Procedure of the National Assembly, given that it would affect the procedure for adopting the budget. As of October 2014 the Act Amending the Public Finance Act has not been adopted.
What changes have to be made to the rules and practices on the national budgetary timeline to implement the new rules on a European Semester for economic policy coordination (section 1-A, article 2-a consolidated Regulation 1466/97)?
What political/legal difficulties did SLovenia encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law and the budgetary process?
There seems to have been no such discussion about the medium-term budgetary process.
How is respect of the Medium-term Budgetary Objective included in the national budgetary framework (section 1A, article 2a consolidated Regulation 1466/97)?
There does not seem to be, so far, a legal act which imposes the compliance of mid-term budgetary objective. However, the government referred to the Medium-term Budgetary Objective in its documents. See answer to question VII.11.
What is Slovenia’s current Medium-term Budgetary Objective (section 1A, article 2a consolidated Regulation 1466/97)? When will it be revised?
Based on the Budgetary plan for 2015 Slovenia plans to reach 4.4 % of GDP general government deficit in 2014 with one -off measures (recapitalisation of banks) and 3.5% GDP without. For 2015 the target is set at 2.8% GDP. The budgetary plan is likely to be revised in 2015.
By what institution and through what procedure is Slovenia’s Medium-term Budgetary Objective adopted and incorporated in the stability programme (Eurozone, article 3(2)(a) consolidated Regulation 1466/97)?
The Draft Act revising the Public finance act provided that the Government prepares the Medium-term Budgetary Objective. The document should be prepared on a yearly basis, by taking into account the forecast prepared by the Institute of Macroeconomic Analysis and Development (UMAR). The document needs to be adopted by the National Assembly, and represent the basis for the adoption of the budget. The adopted budget must be aligned with the Medium-term Budgetary Objective.
Regulation No 1177/2011 on the excessive deficit procedure
What political/legal difficulties did Slovenia encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law and the budgetary process?
See answer to question VII.1.
Regulation No 1173/2011 on effective enforcement of budgetary surveillance
What political/legal difficulties did Slovenia encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law and the budgetary process?
See answer to question VII.1.
What further changes have to be made to the rules on the budgetary process in order to comply with the Six-Pack rules?
After the year 2011, the government adopted several executive decisions that affect the rules of the budgetary process. It adopted the Rules on the completion of implementation of the central and local government budgets for 2012, Rules on the common bases for work procedures of financial services of direct spending units of the budget of the Republic of Slovenia, and the Rules on the transmission of information about the debt level and changes in the debt level of legal entities of the public sector and communities. Further, in December 2013, the Act Amending the Provision of Payment Services to Budget Users was adopted.
What other information is relevant with regard to Slovenia and the Six-Pack?
In October 2012, Slovenia adopted the Slovenian Sovereign Holding Act , and the Act Determining the Measures of the Republic of Slovenia to Strengthen Bank Stability. The adoption of those acts was part of the process aiming to reform fiscal governance and adopt policies that will ensure a long-term fiscal sustainability. A number of deputies called for a legislative referendum to verify the approval of the rules. However, the Constitutional Court rejected such referendum, maintaining that it could have unconstitutional effects, if the two acts were rejected.
1. Name of the Court Constitutional Court (Ustavno sodišče)
2. Parties –
3. Type of action/procedure Constitutionality of a referendum
4. Admissibility issues
5. Legally relevant factual situation
Slovenia adopted two laws to meet the requirements determined in the six pack. In October 2012, Slovenia adopted the Slovenian Sovereign Holding Act, and the Act Determining the Measures of the Republic of Slovenia to Strengthen Bank Stability. An initiative was started to approve the adopted legal act through a referendum. If the majority of participants would vote against the act, the acts would have been rejected.
In November 2012, the National Assembly asked the Constitutional Court to evaluate whether such referendum would impose unconstitutional effects, by postponing or preventing the adoption of the suggested acts. The National Assembly maintained, inter alia, that a referendum could prevent Slovenian’s compliance with the obligations arising from the European Directives, in particular Directive 2011/85/EU.
6. Legal questions
7. Arguments of the parties
The National Assembly emphasized that if the reforms were not approved, Slovenia would have to ask for international financial aid. The commitments that would be required to obtain such aid would have major implications for the sovereignty of Slovenia. The Troika would have an important role, having the ability to dictate the adoption of several measures. The National Assembly also emphasized that Slovenia needs to comply with the requirements of the Directive 2011/85/EU, and the Fiscal Compact, which has been ratified through the Act ratifying the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. A delay in the adoption of the suggested reforms could undermine Slovenian’s compliance with the international commitments. The National Assembly emphasized that Article 3a and 8 of the Slovenian constitution determine that Slovenia must comply with the commitments given to its partners in the Eurozone. The non-compliance with the given commitment would not only amount to a violation of EU law, but would also lead to an unconstitutional position in Slovenia. Without the suggested changes, Slovenia would not be able to deal with the excessive public deficit, and thus assure the compliance with the duties determined in Article 119 and Article 123 TFEU. The National Assembly maintained, among other things, that the adoption of the two acts was essential for the improvement of the country’s rating. The resulting difficulty in borrowing money in the international financial markets would hinder the public financing and would amount to a violation of Constitutional law, given that it would interfere with the constitutional provisions concerning social security and human dignity.
The group of deputies who suggested a referendum disagreed with the position of the National Assembly and maintained that the case did not meet the legal requirements for the prohibition of a referendum. In their view, the statements of the National Assembly concerning the sovereignty of Slovenia were misplaced, given that they concerned a future and uncertain situation.
8. Answer by the Court to the legal questions and legal reasoning of the Court
The court emphasized that the right to initiate a referendum on a proposed law is one of the fundamental rights granted by the constitution. It however also emphasized that such right is not absolute. A referendum should not take place whenever the legal conditions for it are met. It noted that in parallel to the constitutional right to a referendum, there are also other rights protected by the constitution that need to be taken into account. The importance of the protection of such rights might be so strong to out-weigh the right to a referendum. It is thus possible that a referendum will not be allowed, if it could impose unconstitutional effects.
The Constitutional Court did not agree with the National Assembly’s statement that the referendum could hinder the Slovenian sovereignty. It found there was no evidence that the refusal of the referendum would have a direct impact on the Slovenian sovereignty, given that the allegation concerned only a possible, future situation. The sovereignty was not directly endangered.
The Constitutional Court however emphasized that other constitutional rights could be affected by such referendum. The referendum could hinder the state’s ability to assure some basic rights, which are also protected by the constitution. There is consequently the need to balance the right to a referendum to the other rights that would be affected is the referendum is allowed.
The Constitutional Court agreed that the referendum could affect other rights granted by the Slovenian constitution. In particular, the effective functioning of a state based on the rule of law, a social state, which assures the respect of basic rights, such as the right to free economic initiative (article 74), the opportunities for employment and work (article 66), and social security rights. At the same time, the Constitutional Court stressed the important to respect the duties arising from an international agreement. Slovenia must also, in line with article 3a of the Constitution, comply with its duties arising from the membership in the EU. In particular, Slovenia cannot engage in acts that would run counter to the duties imposed by the directives.
The Constitutional Court thus concluded that there was a valid reason to limit the constitutional right to a referendum, given that this was necessary to protect other rights granted by the constitution.
9. Legal effects of the judgment/decision
The referendum was not admitted.
10. Shortly describe the main outcome of the judgment/decision and its broader political implications.
The Constitutional Court agreed with the National Assembly by deciding that allowing a referendum that would challenge the adopted acts could lead to unconstitutional effects.