The Montenegrin Government has assessed that there are no grounds for the Constitutional Court to accept the initiative to initiate proceedings for the constitutionality of the Law on Amendments to the Law on Notaries. The initiative was submitted by lawyers Filip Jovović, Novica Jovović, Vlado Vuković and Vanja Mugoša from Podgorica. They state that the disputed provision is not in accordance with the Constitution of Montenegro, which prohibits discrimination, guarantees property rights, freedom of entrepreneurship and proclaims the principles of free and open market and freedom of entrepreneurship and competition. The lawyers point out that the contested provision ensures that all notaries, regardless of their quality, up-to-dateness and knowledge, have equal or approximately equal income from notary activity, which affects the motivation of notaries in providing quality service. Amendments to the Law provide that the notarial records on the basis of which the transfer and establishment of property rights and other real rights on immovable property are carried out, in which the state and state administration and local self-government bodies, institutions and other entities exercising public powers appear as contracting parties, drawn up by the notary in whose official territory the immovable property is located. This also applies to companies in which the state is the majority owner of the capital. In the performance of these tasks, as stated, one must take into account the equal representation of notaries, which is provided by the Chamber of Notaries of Montenegro by appointing the notary who will compile the notary record according to the alphabetical order of the personal name of the notary. "The goal of this regulation is to ensure equality and an even workload for notaries and the efficiency of their work by evenly distributing cases in all situations in which the state appears as a contracting party," says the Government's opinion.
It is stated that notaries work as a public service, professionally and as an exclusive occupation, whereby the law decisively regulates the work of notaries, organization of the service, conditions for performance and reasons for termination of that activity, supervision of the work of notaries, disciplinary responsibility and other issues. As it is assessed, the legal security of citizens is ensured by regulating the conditions and methods for performing notarial activities. "This is especially because notaries are entrusted with the exercise of public powers by law." The Government assesses that the challenged provision is not incompatible with the principles of the Constitution of Montenegro, as it is pointed out in the initiative. "Assigning cases to notaries, in accordance with the contested provision of the Law on Notaries, does not discriminate against them on any basis, but ensures the establishment of equality among notaries when assigning cases," the Government believes. according to the alphabetical order of the notary's personal name, which is elaborated in the Rulebook on their work. As assessed, the contested provisions are not inconsistent with the Constitution, which guarantees property rights. real rights on immovable properties". "The right of ownership is not acquired on the basis of a notary record, but on the basis of a legal transaction, this right to immovable things is acquired by registration in the real estate cadastre, so accordingly, the application of the aforementioned provisions cannot represent a violation of the Constitution, which guarantees the right of ownership," says the opinion The Government believes that, in connection with the compliance of the challenged provision with the Constitution, which guarantees freedom of entrepreneurship, the equal distribution of cases promotes entrepreneurship because all notaries, on equal and fair grounds, are enabled to act in legal affairs in which the state appears as a contracting party. "In this way, the possibility of some kind of monopolistic or privileged position of certain notaries in relation to the assignment of cases in which the state is a contracting party is eliminated," the Government states. The contested provision, as assessed, is in accordance with the Constitution, according to which economic regulation is based on freedom and open market, freedom of entrepreneurship and competition, independence of economic entities and their responsibility for assumed obligations in legal transactions, protection and equality of all forms of property. The government believes that it is justified to ensure an even distribution of cases in which one of the aforementioned entities appears as a contracting party. "This guarantees the equality of the state towards notaries, acts preventively against possible abuses related to the assignment of cases to work to notaries and prevents the emergence of some kind of monopolistic or privileged position of individual notaries in relation to the method of assigning cases to work," the opinion says.
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