Could the re-voting of the Law on Ratification of the Agreement on Cooperation in the Field of Tourism and Real Estate Development between Montenegro and the UAE (United Arab Emirates) cause a normative conflict that directly violates the Constitution of Montenegro and undermines the coherence of our legal system?
The Association of Lawyers of Montenegro and HRA (Human Rights Action) point out that the re-decision on the disputed legal text of ratification should be preceded by a session of the Legislative Committee of the Parliament of Montenegro, which would consider issues related to the establishment of property rights of foreigners due to which the applicable rules relating to respect for private and state property, expropriation and public procurement procedures, spatial planning may be suspended (or violated), i.e. that in accordance with Article 91, paragraph 3 of the Constitution of Montenegro, laws regulating the property rights of foreigners must be adopted by a two-thirds majority of all deputies in the Parliament of Montenegro or with the support of at least 54 parliamentary votes.
The starting point for supporting this legal view also stems from the circumstances that preceded (or did not) the signing and relate to the procedure for concluding an international agreement. This procedure begins with the submission to the Government of a proposal for the Basis for conducting negotiations and concluding an international agreement. This proposal for the basis, which was (allegedly) prepared by the newly established Ministry of Public Works, (should have) contained: the constitutional basis, an assessment of the state of relations with the UEA, the reasons for which the conclusion of an international agreement is proposed, an assessment of the necessary financial resources for the execution of the agreement and the method of their provision, and most importantly, whether the conclusion of this international agreement requires amendments to existing regulations or the adoption of new ones.
In addition, it is necessary to point out that the Agreement on Cooperation in the Field of Tourism and Real Estate Development between Montenegro and the UAE was concluded in the so-called simple conclusion procedure during which no negotiations were conducted, and therefore no report on the negotiations was submitted to the Government of Montenegro. The fact that in this specific case no negotiations were conducted on the essential elements contained in the aforementioned agreement is best demonstrated by the unclear and contradictory information on the scope of finances, the purpose of the investment and the failure to specify precise deadlines for the implementation of the contracted activities.
If we also take into account the fact that the possible adoption of the law in question will cause the controversial and unclear provisions of the agreement to have priority over the provisions of the Law on Property Relations, the Law on State Property, the Law on Public Procurement, the Law on State Aid Control, the Law on Expropriation, the Law on the Environment, the Law on Environmental Impact Assessment, the Law on Minority Rights and Freedoms, the Law on Local Self-Government, the Law on Construction of Buildings, the Law on Spatial Planning... then we have a very certain legal uncertainty regarding the future of the project on Velika Plaza, as well as other possible projects in the north of Montenegro.
Such situations are not legally valid and factually sustainable for a long period of time because they represent a combination of primary rules (rules that determine certain rights and obligations) and special, secondary rules (rules on changing rules and responsibilities) which, as may happen in this specific case, may lead to the non-application of the principles of constitutionality and legality, or the collapse of the legal order. There must be a clear balance between the general law and the specific rule that claims to exist as an exception to it, controlled by the principles of constitutionality and legality.
This fact, this inevitability, is confirmed by the experiences regarding the construction of the residential and business complex “Belgrade on the Water”, owned by a company from the United Arab Emirates and the Government of Serbia, the implementation of the international specialized exhibition “EXPO Belgrade 2027” and the construction of the National Stadium and its accompanying infrastructure in Belgrade. These projects of “general interest and importance for the economic development of Serbia”, due to the suspension of public procurement, had significantly higher costs than those that could have been in conditions of full competition, and the issuance of construction permits did not require Environmental Impact Assessment Studies, Studies on the Protection of Immovable Cultural Property, even for those facilities for which such consent was a necessary prerequisite.
After all this, if someone still believes that a qualified majority in our parliament is not necessary for the ratification of the disputed agreement or that it does not violate any part of European Union law at all, then they must take into account the case law of the European Court of Human Rights in Strasbourg. Under the term “property”, this judicial institution of the World of Europe understands “a wide range of interests, claims and goods” and its meaning is not limited to “ownership of physical things and is independent of the formal classification in domestic law: certain other rights and interests that represent goods can also be considered ‘property rights’, and thus, according to its position, business and professional interests fall within the concept of property. “The Court also took the position that ‘property’ can be ‘existing assets’ or funds, including in certain well-defined situations, claims.” Accordingly, the case law in Strasbourg has assigned a broader status to the concept of “property” than the concept of “ownership”, which includes three elements (Latin): usus, fructus and abusus, and has expanded the concept of property not only to existing legal rights, but also to legitimate expectations.
As regards expropriation or “interference with the right to property”, the principle of legal certainty, as regulated by the European Convention on Human Rights and Fundamental Freedoms in Article 1 of Protocol No. 1, implies “the existence of and respect for adequately accessible and sufficiently precise domestic laws” necessary to ensure “a fair balance between the requirements of the general or public interest and the requirements of the protection of the individual right to property”. The European Court considers that the assessment of what is “in the public interest” should be respected, unless “that assessment is manifestly without reasonable grounds”, and that this decision involves consideration of political, economic and social issues on which opinions will differ significantly within a democratic society. The Court is of the opinion that everything should be respected “unless it is manifestly without justifiable grounds”.
What is reasonable and what is justified for our MPs?
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