Voting by simple majority, rather than qualified majority, of the Agreement between the Government of Montenegro and the United Arab Emirates (UAE) on cooperation in the field of tourism and real estate development (the Agreement) is contrary to the Constitution, experts warn. Center for Investigative Journalism of Montenegro (CIN-CG).
The Constitutional Court did not rule on the constitutionality of the Agreement last week, because the proposal to submit it for review did not receive the required majority. President of the Constitutional Court Snezana Armenko, judge Faruk Resulbegović and a judge Momirka Tešić were in favor of initiating a procedure to review the constitutionality of the Law that confirmed the Agreement, while Desanka Lopičić, Nikola Mugoša i Jovan Jovanovic were against it.
The adoption of the Law on the Adoption of the Agreement raises the issue of respecting the Constitution of Montenegro, namely Articles 91, paragraph 3 and Article 156, legal experts warn.
"The Law on Ratification of the Agreement with the UAE was adopted by a simple majority in the Parliament of Montenegro, although this agreement de facto repeals the article of the Constitution that prohibits the distortion and restriction of free competition. According to Article 156 of the Constitution, the provisions of the most important legal document can be changed by amendments only if two-thirds of all deputies vote in favor. By analogy, as one of the methods of interpreting the law, for the acceptance of an international agreement that contains provisions that change or repeal certain provisions of the Constitution, there should be the same qualified majority, because this, de facto, changes or repeals a part of the Constitution," Časlav Pejović, an expert in international law and professor at the Kyushu Faculty of Law of the University of Fukuoka in Japan, told CIN-CG Časlav Pejović who had joined the debate about the Agreement even earlier.
The Government interpreted the vote in the Constitutional Court as confirmation of the constitutionality of the Agreement Law.
The government's comments after the Constitutional Court failed to reach a decision on the Agreement represent an attempt to create an impression of legal certainty that does not currently exist, the Office of the President told CIN-CG. Jakov Milatović.
"The fact that the Court did not decide cannot be interpreted as a confirmation of constitutionality, but on the contrary - the outcome of the vote itself clearly indicates serious legal dilemmas regarding this document."
Milatović's Cabinet also stated that the behavior of the parliamentary majority, which persistently refuses to elect the seventh judge of the Constitutional Court proposed by the president, "does not contribute to the stability of the institutions, but rather deepens legal uncertainty and doubts about the regularity of the decision-making process."
The Constitutional Court also responded that their vote cannot be interpreted as a decision on the constitutionality of the Law...
LAWS DETERMINING THE RIGHTS OF FOREIGNERS REQUIRE A TWO-THIRD MAJORITY
The question of respecting the Constitution of Montenegro arises when it comes to making decisions on international agreements that regulate issues of property rights of foreigners, which the Agreement with the UAE does, the dean of the Union Faculty of Law in Belgrade tells CIN CG. Vladimir Colovic, who previously expressed his opinion on the constitutionality of the Law on the Adoption of the Agreement, at a public hearing organized at the Constitutional Court.
Article 91, paragraph 3 of the Constitution of Montenegro stipulates that “'The Assembly shall decide by a two-thirds majority of all deputies on laws regulating the electoral system and property rights of foreigners”.
Given that, during the vote in the Parliament of Montenegro, the Agreement was not adopted with the required 54 votes in relation to the total number of deputies, it could not be adopted, explains Čolović.
"Thus, the Constitutional Court of Montenegro, with its latest decision, has brought the implementation of this Agreement to a 'stalemate', although according to this decision the Agreement remains in force."
Minister of Public Works Majda Adžovć She insisted at a public hearing in the US that the Agreement does not determine the property rights of foreigners. However, experts argue the opposite.
Čolović explains that the Agreement relates to the property rights of foreigners due to several provisions:
"The subject of the Agreement is projects in the field of tourism and real estate development, but it is not defined whether it concerns ownership rights, rights of use or any other right that can be determined as real rights of foreigners; The Agreement defines that the UAE Government will guarantee investors, which means that during the realization of the aforementioned projects and the implementation of the Agreement, investments will be made in the aforementioned projects and infrastructure; The Government of Montenegro will take all measures to provide the necessary land, which is not fully clarified in the text of the Agreement, but it can be concluded that it relates to the implementation of the aforementioned projects."
"From the text of the Agreement, it can be concluded that the projects that should be implemented by investors from the UAE would be based on lease or ownership, and both bases relate to the property rights of foreigners. Montenegro's obligation to provide investors from the UAE with land for the implementation of projects in which investors from the UAE would invest tens of billions of euros, as Prime Minister Spajić said, can clearly be subsumed under Article 91, paragraph 3. It is difficult to imagine an investor investing huge amounts of money in the construction of hotels and buildings without having property rights on them," argues Pejović.
As Pejović points out, the right to lease represents one of the most common forms of property-legal relations and undoubtedly belongs to property rights.
"Sir Praise (Mohamed") stated that the plan of investors from the UAE is to lease Velika Plaža for 99 years. The lease is also mentioned in subsequent statements that did not refer to Velika Plaža," Pejović states.
"The fact that the Constitutional Court has not initiated a review of the Law on the Adoption of the Agreement creates additional problems, concerning the interpretation of international agreements, the aforementioned decision of the Constitutional Court of Montenegro, but also respect for the Constitution," says Čolović.
He predicts that the disputed Agreement, if implemented, will require additional interpretations, the adoption of other acts that will supplement its provisions, as well as raising many issues related to the exercise of the rights of foreigners, the status of foreign legal entities, compliance with mandatory regulations of Montenegro, and defining the public interest of Montenegro.
THE CONSTITUTION IS VIOLATED EVEN IN THE TEXT ITSELF
When it comes to the (un)constitutionality of the Agreement with the UAE, two things need to be separated, one relates to the (un)constitutionality of the Law on Ratification of the Agreement with the UAE, and the other to the text, because they are not the same thing, says Pejović.
"It is clear that the text of the Agreement is contrary to the Constitution of Montenegro. Article 140, paragraph 3, of the Constitution states: 'Distortion and restriction of free competition and encouragement of an unequal, monopolistic or dominant position on the market are prohibited'."
Pejović challenges Article 3, paragraph 1 of the Agreement with the UAE, which states that Montenegro will "take all necessary measures and activities to secure the land necessary for the implementation of the Projects... without the need to conduct public procurement, public tender or other procedures prescribed by national legislation governing the area of state property", as well as Article 2, paragraph 4, which contains a similar provision on exemption from regulations on public procurement, public tender and public bidding procedures.
"The repeal of the provisions of Montenegrin regulations on public procurement and public tenders represents the repeal of the fundamental principles on which free competition is based. This violates Article 140, paragraph 3 of the Constitution of Montenegro. Therefore, the text of the Agreement with the UAE is contrary to the Constitution," claims Pejović.
Čolović also assesses that the Agreement provides for the avoidance of the application of domestic regulations on public procurement, as well as other institutes, which speaks of a derogation from domestic regulations.
The task of the Constitutional Court is exclusively to determine the constitutionality of the Law adopted by the Parliament, in a manner that was contrary to the Constitution, while the content itself was not the subject of decision-making, which many did not understand, including the Minister of Public Works, Majda Adžović, who in her presentation before the Constitutional Court repeatedly stated and implied that the decision was made on the content of the Agreement itself, and not on the manner in which the Law on the Agreement was voted on, experts say.
In this specific case, "it is not the task of the Constitutional Court to assess the constitutionality of the content of the agreement with the UAE, even though the content is contrary to the Constitution, so that issue could also be raised," explains Pejović.
RISK OF AMENDMENT OF THE CONSTITUTION DUE TO INTERNATIONAL AGREEMENTS
Article 9 of the Constitution is vague, in the sense that it does not specify whether international treaties have primacy over the Constitution, explains Pejović. The article states that international treaties and generally accepted rules of international law have priority over domestic legislation.
"One could defend the position that international treaties, in their force, are above domestic laws, but not above the Constitution. A distinction should be made between the Constitution and the law. The Constitution is the legal foundation of the state, while the Constitutional Court should be a bulwark that protects the Constitution," explains Pejović.
Perhaps the biggest problem with the Agreement, which is "contrary to the Constitution", is that the Government of Montenegro is introducing the possibility of amending the Constitution through a back door by adopting international agreements, which according to the current understanding may have primacy over the Constitution, warns Pejović.
He believes that an initiative should be launched before the Constitutional Court to consider whether international treaties can have primacy over the Constitution. Although the Constitution is part of the legislation, it should not be equated with laws, warns the expert.
CONSTITUTIONALITY CHECK PRIOR TO ADOPTION
"Constitutional review of legal acts can take place before or after the adoption of a legal act," states the expert opinion of the former President of the Constitutional Court. Mladen Vukčević, which he presented at a public hearing in the US.
As stated in the Expert Opinion, this also applies to international agreements ratified in the form of law, because upon ratification they become part of the internal legal order.
"Unfortunately, in the constitutional system of Montenegro, there is only an ex post review of the constitutionality of international treaties," warns Vukčević, pointing out that such a solution carries a number of legal shortcomings, especially because after ratifying a treaty, the state can no longer easily avoid already assumed international obligations.
"The introduction of prior control would make it easier to resolve open issues between two seemingly conflicting requirements: respect for the Constitution as the highest legal act and respect for obligations assumed in international treaties. Such an approach was also valid in states that did not have constitutional judicial control, and a kind of prior control of constitutionality was within the competence of parliament," says Vukčević.
He assesses that the Constitutional Court's right to decide on the constitutionality of international treaties is indisputable, explaining that the Constitutional Court, as the guardian of the Constitution and the hierarchy of the legal order, is authorized to assess the compliance of all general legal acts, including ratified international treaties, with the highest legal act of the state.
NON-DEcision of the Constitutional Court
The Constitutional Court announced that the judges who voted to initiate the proceedings believed that the Agreement should have been adopted by a two-thirds majority in the Parliament, because it regulates the property rights of foreigners, and that otherwise the Parliament could also adopt other international treaties by a simple majority, even though they regulate issues that require a qualified majority, such as electoral rights, which may include regulating the issue of dual citizenship.
On the other hand, their colleagues, the judges who were against, believe that the Agreement does not deal with the property rights of foreigners, which would require a two-thirds majority. These judges also stated that our Constitution does not recognize prior review of the constitutionality assessment, but only subsequent review of the formal constitutionality of the law. The judges who are against initiating the procedure expressed the position, which was previously put forward by the Government, that the review of the constitutionality of the Agreement with the UAE raised the issue of compliance with the Constitution of the Law on the Ratification of the Agreement with the North Atlantic Treaty Organization (NATO), bearing in mind that it was ratified by 46 votes, although the Constitution stipulates a two-thirds majority in the first round of voting for the use of the Montenegrin army in international forces.
The law confirming the agreement between Montenegro and the UAE was first voted on 23 April 2025, only to be returned to the Parliament for reconsideration by President Jakov Milatović, who deemed it inconsistent with the laws and the Constitution. The ruling majority MPs voted again on the Agreement on 3 June last year.
Initiatives for constitutional review submitted to the Constitutional Court by a councilor in the Budva Municipal Assembly Đorđe Zenović and the NGO Center for the Protection and Study of Birds. They claim that the Agreement was adopted contrary to the Constitution and that it could have serious consequences for the interests of the state.
LOPIČIĆ ALSO VOTED
In late December, members of the Parliament voted to allow Judge Desanka Lopičić, whose term had expired at the time, to remain on the Constitutional Court until a new Constitutional Court judge is elected. Despite warnings from Brussels, the parties have been unable to agree on who will replace Judge Lopičić, who should already be retired by law, and who will fill the seat of the seventh judge on the Constitutional Court so that the current voting deadlocks do not recur.
"It is therefore unacceptable that the Government presents this situation as confirmation of its own policy, instead of facing the fact that the Agreement has been accompanied by serious constitutional, legal and institutional doubts from the beginning," the President's Office stated, concluding that no agreement, no investor and no political interest can be above the Constitution and the interests of the citizens of Montenegro.
The Constitutional Court explained that the case will be reconsidered after the election of the missing judges, or even earlier if any of the judges change their position:
"In such a situation, any presentation of such a vote as confirmation of constitutionality is not based on facts and prejudges the decision in this case."
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