There has been no litigation in relation to private actors in Slovenia. However, a case can be based on:

  • Obligations Code 2001: Article 133 allows for the request for removal of risk of damage. It provides that “Any person may request that another person remove a source of danger that threatens major damage to the former or an indeterminate number of persons and refrain from the activities from which the disturbance or risk of damage derives, if the occurrence of disturbance or damage cannot be prevented by appropriate measures”

Under the Obligations Code 2001, the following remedies can be granted:

  • Orders that appropriate measures to prevent the occurrence of damage or disturbance or to dispose of a source of danger be taken at the expense of the possessor
  • Compensation for damage in excess of the customary boundary. Court has noted that compensation under Article 133 is available only when the interference in the environment is excessive and only for the difference between the normal and excessive interference of the activity in the environment (VSM Judgment I Cp 2989/2005, 7 November 2006; Judgment II Ips 940/2007, 24 January 2008)

For locus standi, claimants have to demonstrate the act or omission by the private actor has resulted in damage or disturbance to the claimant.

There has been no litigation against state challenging project approval. Nevertheless, a case can be based on the following grounds:

  • Human Rights:
  • The Environmental Protection Act 2004:
    • Article 14 grants individuals the right to request the discontinuation of an activity affecting the environment, if it causes or would cause an excessive environmental burden or presents or would present a direct threat to human life or health. It can also be used for activities where the environmental burden will manifest itself in the future, which is often the case with activities contributing to climate change.
    • EPA allows for public participation in environmental impact assessment, process of issuance of environmental protection consent and in the process of issuance of environmental protection permits for projects (Articles 40, 43 and 58 of EPA). Failure to conduct proper public participation in these processes could be a basis to challenge project approval before the administrative court (U 893/2014).
  • Obligations code 2001: Article 133 of the Obligation Codeconcretises the constitutional right to a healthy living environment and can form a ground for litigation challenging a specific project. The case of VSL order II Cp 3973/2009 established that under the Obligations Code, individuals have grounds to challenge any activity that causes direct danger for the life and health of people, which can have indirect implications to climate change.

To remediate, the Court can grant orders to:

  • Prohibit the economic activity in violation of public benefit.
  • Prohibit project proponent from starting/proceeding with the project (Article 14 EPA)
  • Under the Obligations Code, the court can order that all appropriate measures be taken to prevent the occurrence of damage (Art 133 Obligation Code). If appropriate measures cannot prevent damage, the court can order that an individual must refrain from the activity from which that damage derives (Art 133 Obligation Code). Where the damage occurs during performance of a generally beneficial activity, court can order reimbursement. The reimbursement shall only be possible if that damage exceeds the customary boundaries (Article 133 Obligation Code)

In terms of locus standi, it is difficult to claim standing and interest in relation to breaches of constitutional rights for claims relating to the environment. Similar to scenario 1, claimants are required to show legal interest. Legal interest has been recognized where the participants live in the immediate vicinity of an area under assessment (Judgments U-I-315/00; U-I-265/99; U-I-292/97; U-I-24/96), which could make it difficult to show standing for climate cases. Citizens have standing under the Obligations code if they can show damage or disturbance from the project in question.

Possible reasons for lack of this type of litigation:

  • difficulty of proving excessive environmental burden and the existence of a direct threat to human life or health,
  • lack of sufficient statistical data on the status of the environment in Slovenia, to illustrate the damage in the environment caused by the concerned activity. Consequently, any attempt to prove such damage or threat would be very costly

To date, no climate change litigation has been brought by a citizen(s) challenging Slovenia’s climate policy. However, a claim could be based on the following grounds:

  • Constitutional rights:
    • Article 72 of the Slovenian Constitution grants the right to a healthy living environment. This right can be violated by continuous changes in the climate. The State has an obligation to protect this right and any violation can form the basis for litigation.
    • Article 70a grants the right to drinking water. Climate change projections for Slovenia indicate serious drought in the summer months, meaning that drinking water resources will become scarcer. The State has an obligation to take appropriate action to prevent the reduction of this resource.
    • Pursuant to Article 24 of the Constitutional Court Act, individuals may file a petition for review of constitutionality or legality of regulations or general act, which grants individuals the right to access court if they believe that a climate policy or law violates the rights mentioned above.
  • The Environmental Protection Act 2004 (EPA):
    • Article 14 grants individuals the right to request the court to discontinue an activity affecting the environment if it causes, or would cause, an excessive environmental burden, or presents, or would present, a direct threat to human life or health. Enactment of an insufficient climate policy could arguably be an activity by a public authority affecting the environment, which could be challenged in court.
    • The EPA requires public participation in environmental decision making and grants individuals the right to participate in preparation of environmental policies and regulations (Article 13). If a climate policy is developed without proper public participation, then litigation can be pursued.
    • Pursuant to Article 14 of EPA, the Human Rights Ombudsman may launch an investigation relating to violation of environmental rights by an act of a public authority and if a violation is confirmed, prepare a report with recommendations. This opens the door for the Ombudsman to investigate whether a Climate Policy is in violation of the right to a healthy living environment. However, there is a requirement for proof of an injured party from the violations, which could prevent proceedings, as climate change generally affects populations, as opposed to causing specific and direct damage to an individual or group of individuals.

The Constitutional Court can remedy a breach of constitutional right through a declaration of unconstitutionality. Additionally, the Administrative Court can remedy breaches of the EPA through the discontinuation of an activity affecting the environment Finally, the Ombudsman can prepare a report with recommendations to all parties involved, including public authorities.

In terms of locus standi, claimants in constitutional matters have to demonstrate a legal interest. This can be demonstrated if the challenged regulation or general act directly interferes with the claimants’ rights, legal interests, or legal position (Article 24 of the Constitutional Court Act). While the court has found that a professional association involved in ecosystem protection has standing to challenge constitutionality of a municipal ordinance (case U-I-30/95), legal interest is generally interpreted narrowly and in restrictive manner. Claimants have to show a sufficiently direct and concrete effect (case U-I-113/00). Courts have also rejected a NGO’s legal interest on the ground that the general assertion that they live and work in the area of a local community does not constitute their right to challenge constitutionality of a municipal ordinance (case U-I 255/00) .

Possible reasons for the lack of climate change litigation could be difficulty of proving legal standing and the difficult and costly manner of gathering sufficient evidence to prove the case.