REPUBLIKA SLOVENIJA USTAVNO SODIŠČE Case No.: U-I-40/91-22 Date: 2/4-1992 D E C I S I O N At the meeting held on 2 April 1992, the Constitutional Court assessed the constitutionality and legality of the Decree on revision and amendment of the Decree on compensation for the use of construction land in the Municipality of Ptuj on the initiative of the Drava Power Plants of Maribor, and m a d e t h e f o l l o w i n g d e c i s i o n: The provisions of Articles 1., 4., 5. and 6 of the Decree on revision and amendment of the Decree on compensation for the use of construction land in the Municipality of Ptuj (Official Paper of the Municipalities of Ormož and Ptuj, no. 26/90) are not in conflict with the Constitution and the law. R E A S O N S : With their application, the Drava Power Plants of Maribor initiated the procedure for assessment of constitutionality and legality of the provisions, specified in the disposition (sentence) of the present Decision and revising and amending the provisions of Articles 1., 5., 6. and 7. of the Decree on compensation for the use of construction land in the Municipality of Ptuj (Official Paper of the Municipalities of Ormož and Ptuj, nos. 17/77, 1/78, 15/83, 7/86, 9/88, 4/90). According to the impugned provisions, the compensation for the use of construction are in the zone of hydroelectric power facilities SD1 and SD2 shall be paid in the amount specified therein; this area or zone comprises hydroelectric power facilities and water areas: discharge channel of the hydroelectric power plant SD1 with slopes in the area between the municipal border of Maribor and the discharge into the former bed of the Drava river, the accumulation lake Ptuj with the slopes between the railway bridge and the dam structure in Markovci; the dam structure in Markovci with functional areas, the supply channel of the hydroelectric power plant SD2 with the slopes between Markovci and Formin, the Formin facility (machine room) of the hydroelectric power plant SD2 with functional areas and the distribution station; discharge channel with the slopes between Formin and the boundary of the Municipality of Ormož. The applicant states that the Construction Land Law (Official Gazette of the Socialist Republic of Slovenia, no. 18/84, 32/85 and 33/89) does not provide a basis for a disposition such as contained in the Decree of the Municipal Assembly, and that the determination of compensation to be paid for the use of construction land of water areas can not come within the competence of one Municipality; in addition, water areas fall within the system of water regulations. In answer to the application, the Municipal Assembly replies that the impugned provisions were adopted on the basis of Articles 58 and 60 of the Construction Land Law and in conjunction with the Law on Waters (Official Gazette of the Socialist Republic of Slovenia, no. 38/81, 29/86 and Official Gazette of the Republic of Slovenia no. 15/91-I). It also claims that the area concerned is actually a built-up construction land of the nature of complex construction. According to Article 71 of the Constitution, for reasons of efficient exploitation, the law shall specify special conditions for the use of land. The Construction Land Law specifies the construction land as that designed by mid-term economic development plan for building construction, built-up areas with structures and facilities and the land parcels for which prescribed construction permits have been issued. Also considered as complex construction is the erection of industrial, power and other facilities of similar nature. Compensation for the use of construction land shall be paid in urban areas and settlements of urban character, in the areas designed for housing construction and other complex types of construction; in the areas for which a detailed special plan has been adopted, as well as in other areas provided with water supply and electric network. The area where compensation for the use of construction land must be paid shall be specified by the Municipal Assembly. The Municipal Assembly may specify as business areas also the areas of land intended for business activities (Articles 1., 4. and 58., and the fifth paragraph of Article 60 of the Construction Land Law. The Public 2 Consumption Financing Law (Official Gazette of the Republic of Slovenia, no. 48/90 and 34/91-I) specifies that the compensation for the use of construction land belongs to the Municipality, for financing public consumption. The obligation of compensation payment as introduced by the impugned provisions of the Decree applies to the area on which were built certain hydroelectric power facilities of broader regional importance, which are used by the Drava Power Plants of Maribor for conducting their business activities and which are managed in their entirety by them. For the construction of the structures prescribed construction permits were issued, and the construction was classified as complex according to the Construction Land Law. Moreover, the area and the land parcels which it includes fulfil the conditions specified by the Construction Land Law with respect to the land parcels for the use of which payment of a compensation for the use of construction land may be imposed. On this basis and considering an increased value of the land referred to, as a consequence of investment of socially-owned capital, and also by taking into consideration the advantages of the locality itself, the Municipal Assembly could decree the payment of compensation for its use. The structures and the land referred to by the impugned provisions can neither be considered as areas specified as exempt from payment of compensation by the Construction Land Law (Article 59). The compensation referred to, however, can only apply to construction land but not to water and water areas, whose functional connection with the land below can only form a basis for actual determination of the area specified by the impugned provisions of the Decree as liable to payment of compensation for being the areas of land used for business activities. The Constitutional Court thus considers as not in conflict with the Constitution and the law also the impugned provisions referring to the area of the land covered by the accumulation lake. For the above mentioned reasons and on the basis of the first paragraph of Article 160 of the Constitution and Article 7 of the Constitutional Law on execution of the Constitution of the Republic of Slovenia (Official Gazette of the Republic of Slovenia, no. 33/91-I) and the second paragraph of the third section of Article 25 of the Law of Procedure at the Constitutional Court of the Socialist Republic of Slovenia (Official Gazette of the Socialist Republic of Slovenia, no. 39/74 and 28/76), the Constitutional Court at its meeting made such a decision as is evident from of the disposition (sentence) of the present Decision. The decision of the Constitutional Court was reached by the following persons: Dr. Peter Jambrek, President, and Dr. Tone Jerovšek, Matevž Krivic, B.L., Dr. Anton Perenič, Janez Snoj, B.L., Dr. Janez Šinkovec and Dr. Lovro Šturm, the judges. P r e s i d e n t: Dr. Peter Jambrek .