Parliament is not a notary.

In the past year, the Parliament of Montenegro has adopted a large number of regulations of exceptional substantive value, which, however, have caused experts and the general public to rightly wonder whether these regulations were adopted in accordance with democratic principles.

This is a well-known problem: regulations that serve to harmonise with European law are introduced into parliamentary procedure outside the usual order and are passed as a shortcut. Thus, with a certain amount of bizarreness, the most urgent regulation was presented as Law on the Contract for the Carriage of Passengers by Sea, which entered the parliamentary procedure on December 16th of last year, and emerged as an adopted regulation after just two weeks.

In the explanation of the law itself, with some sense of creating dramatic moments, it was pointed out that there was a demand for such a regulation to be adopted. The explanation said: "Montenegro must adopt it."

Such explanations of the laws and their urgency are very imprecise. The procedure for joining the European Union is an autonomous procedure for each state. Certain obligation to amend or adopt a regulation can by its nature only be an obligation arising from the Government's pro-European policy, something that the state determines for itself, not an obligation that follows from international or European law.

It is even more important to emphasize that Montenegrin laws that are adopted as a result of harmonization with European law they only partially mirror some existing European regulations.

The process of harmonization most often includes the obligation to include certain mechanisms and institutional frameworks prescribed in European law in the domestic law of the member state. in a manner that best suits its legal system and actual needs. In practice, even rigorous European regulations often affect multiple related legal institutions, in the regulation of which the autonomy of the domestic legislator is not excluded.

This is also demonstrated by the example of the aforementioned Law on the Contract for the Carriage of Passengers by Sea. Such a regulation does not exist in every member state of the European Union (relevant rules can be regulated through the civil code system); it is therefore obvious that such a law doesn't have to bring.

European law contains strict rules on the content of passenger rights from the contract of carriage by sea, but the legislator has wide discretion in determining the manner emergence and extinction such contracts. It is an autonomous matter for the Montenegrin legislator and parliamentary debate to decide whether the law will apply only to transport by vessels listed in the European regulation or to some other or even all vessels. The necessary additional measures, such as inspection supervision, are determined autonomously by the Member States or their parliaments.

From the above it necessarily follows that and the government and parliament of each member state have positive autonomy regarding the details of regulations that are proposed or discussed and possibly changed by amendments in parliament. The thesis that Montenegro and its parliament they must to act as notaries in the harmonization process is very inaccurate.

The process of harmonization with European law is layered. So in addition to harmonization with specific regulations, such as passenger transport by sea, there is something more, and that is the main harmonization with explicit European legal values ​​in the founding treaties of the EU. According to Article 2 of the Treaty on European Union, the legal value on which the Union is based is democracy. Insisting, however, that parliament act as a notary is, in essence, an undemocratic expectation, although guided by good intentions.

Countries with communist experience, such as Montenegro, know very well that certain quality regulations can be adopted in an undemocratic manner. Quality of the regulations being adopted It can also be very high when a regulation is adopted - in communism, in the era of enlightened absolutists, in false democracies - without any real parliamentary debate. But parliamentary debate and detailed deliberation by MPs regarding all the details is what makes the harmonization process and proof of a country's readiness to join the European Union complete.

According to the prestigious doctrine of the German Federal Constitutional Court, all laws that are passed in a procedure that essentially does not provide time for members of parliament to deal with the content of the regulation have a procedural or formal legal defect. Passing trivial regulations such as the new passenger transport law in an emergency procedure could, by these standards, mean that such a regulation is unconstitutional for formal reasons - because it was passed in the wrong procedure.

Based on these criteria, the legal fate of laws that are brilliant in terms of content but have not been adopted in a democratic manner is uncertain until the final decision of the competent constitutional court of the country in question. On the international level, such laws do not represent an unreserved signal of progress. On the contrary, they are a potential obstacle to giving - otherwise well-deserved - positive assessments.

In conclusion, it can be said that a large number of legislative disagreements that have arisen in the past and this year could have been avoided if, as is generally customary in all developed countries, harmonization had been achieved through precise amendments to existing regulations. Instead, the Government, it seems, has been proposing entire new laws "for show", the discussion of which in the spirit of parliamentarism requires a longer period of time for real debate and a more fundamental democratic procedure.

The author is a habilitation student at the Faculty of Law, University of Bremen.