LAWYERS interviewed by The Slovak Spectator talked about several areas of Slovak law that they believe need improvement, including the Civil Procedure Code as well as laws dealing with real estate, personal data protection and antitrust policy.
The Slovak Spectator spoke with Ján Azud, partner at Ružička Csekes, Ján Makara, attorney at law and partner in PETERKA & PARTNERS, Silvia Belovičová, local partner at White & Case, Daniel Futej, partner at Futej & Partners and Dávid Oršula, advocate and partner at bnt - Sovova Chudáčková & Partner to get their opinions about the most pressing areas in need of reform.
The Slovak Spectator: Which legislative areas or laws do you think need further revision and why?
Ján Azud: We feel it would be helpful to amend corporate regulation within the Commercial Code. There are many rules which are notorious for causing headaches to both businesses and their lawyers. To name just a few, these include a rule that bans competition that insufficiently deals with legitimate requirements of multinational groups to nominate the same managers to different companies within the group, a rule on single-member companies and their application to foreign entities, and rules on transfers of assets and services within a group of companies.
Although awaited and appreciated, the recent amendment to the Act on Competition only addressed some of the rules of the merger review process. However, practical experience shows that more changes addressing also antitrust rules and the process as such are needed. Fortunately, the Anti-Monopoly Office acknowledges the need for new regulations and is likely to propose further amendments.
For a long time, the real estate market has suffered from improper regulation of leases of non-residential premises. The Act on Lease and Sublease of Non-Residential Property is notorious for its vagueness and the absence of regulations properly addressing the needs of the market. We also believe that the Act on Land Planning and Construction Procedure that has been in place for more than three decades requires significant reform that will address both the call for more flexible and paperwork-reducing procedures and the need for more effective sanctions, including flexible demolition of illegal structures.
Civil procedure rules require continuous changes that reflect the prevalent situation in society, the level of knowledge and the available technical means, for instance by facilitation of electronic communication and methods in civil lawsuits. Public procurement suffers from inflexibility and businesses are calling for the right balance between the natural need for transparency, fairness and associated bureaucracy on one hand and an effective, smooth, flexible and quick procedure that fosters business with the public sector on the other hand.
Ján Makara: Several problematic areas may require revision in the future.
Despite last year’s broad amendment to the Bankruptcy and Restructuring Act it would aid transparency in business relations to make the information on the whole bankruptcy proceeding more accessible to the public, as in the Czech Republic for example, where most information is published on the web.
There are long-standing existing problems with the legislative process, when many acts are adopted in the shortened legislative process or modified by indirect and unrelated amendments, so it may be beneficial to revise the law governing certain of these areas.
It is hard to say if the recent amendment to the Civil Procedure Code will improve the problem of lengthy court proceedings. The major drawback in the current state of affairs and a matter to be resolved as soon as possible is that the courts are overloaded with work.
It might improve the level of obligations required of businesses, mainly in effective cross-border data transfer between businesses belonging to one group, if the Act on Personal Data Protection is amended to reflect practice in some other EU countries.
We think that the Act on Archives and Registries also needs amending, as its wording, despite transposing the respective EU legislation, is unclear in some respects and this very often requires issues to be discussed directly with the responsible authorities.
Also worth mentioning is the long-prepared and still not adopted re-codification of the Slovak Civil Code.
Silvia Belovičová: Judicial enforceability of the law is one of the most important handicaps in Slovakia. Further legislative changes are needed in order to increase the efficiency, consistency and predictability of the judicial system in Slovakia.
Provision of state aid should be more transparent; for example conditions for automatic eligibility for state aid should be established that would decrease the necessity of government involvement. Public procurement lacks clear rules and the consistent application of existing rules and decisions by the Public Procurement Authority are anything but predictable, with little reflection of market needs.
Slovak rules on the protection of personal data also need significant improvement; particularly the rules regarding sharing of personal data and cross-border transfers should better reflect the need for flexibility, especially for entrepreneurs active in the provision of online services.
Daniel Futej: Within significant negative legislative changes I would mention an amendment to the Civil Procedure Code, valid as of the beginning of 2012, which brings into the code controversial and retroactive changes pertaining to the payment of legal charges. The amendment significantly violates principles of a fair legal proceeding and procedural equality of sides and actually it means absolutely excluding economically-weak plaintiffs from their right to access to a court. Another significant flaw of the amendment is its retroactivity since changes implemented by this amendment will apply as well to proceedings started before December 31, 2011. Legislation of a poor quality in the form of retroactive amendments to the laws adopted by the Slovak Parliament, moreover touching upon many subjects, has been nothing uncommon during the recent time period. As an example, it was possible to put a revision to the law on securities through which the Slovak Parliament introduced retroactive changes to the compensation system of the Guarantee Fund of Investments, with effectiveness as of December 30, 2010.
Dávid Oršula: The Civil Code needs substantial reform as the current law is outdated. A new Act on Administrative Procedure is also needed for the same reason. Further measures to simplify the business environment, such as a single governmental body as the contact point for entrepreneurs and electronic communication with government offices and courts would also be generally welcomed. A new Act on Energy is also needed.
5. Mar 2012 at 0:00 | Jana Liptáková