The public hearing on the constitutionality assessment of the Law on Ratification of the Agreement on Cooperation in the Field of Tourism and Real Estate Development between the Governments of Montenegro and the UAE has been completed in the Constitutional Court.
During the session, speakers included the submitters of the initiative for the review of the constitutionality of this Law, Budva Municipal Assembly councilor Đorđe Zenović and the non-governmental organization (NGO) Center for the Protection and Study of Birds, Minister of Public Works Majda Adžović, and five experts in constitutional, international public and international private law. The sixth expert submitted a written opinion.
Most experts agreed that this Law infringes on the property rights of foreigners, and that the court should review its constitutionality in that regard.
Adžović emphasized that the Venice Commission has already said that subsequent review and annulment of a ratified treaty could bring the state into conflict with its international obligations.
Constitutional Court President Snežana Armenko said that the public hearing has ended and the session has been concluded, and that the court will issue a ruling after careful analysis and inform the public in a timely manner.
The opinion of Vladimir Čolović, a professor and doctor of international private law from Belgrade, was read by the Secretary General of the Constitutional Court, Biljana Damjanović, in which it is stated that the Law concerns the property rights of foreigners - and that the term entities is mentioned, that is, it is not defined who the owners and founders are...
In this opinion, the agreement is not accompanied by documents that would clarify it, and that a large number of acts will have to be adopted in order to implement it.
Professor of constitutional law and former President of the Constitutional Court, Mladen Vukčević, said that the Constitution does not have prior control of international treaties, but rather subsequent control, and that the court has the right to assess their constitutionality.
"For example, an international treaty could hypothetically establish a personal union, a monarchy between the UAE and Montenegro, and establish a monarchy. Does this mean that Article 1 of the Constitution, according to which Montenegro is a republic, could be annulled with 41 votes, does this mean that the referendum of citizens who should decide on changing the article would be ignored. Certainly not. Constitutional principles cannot be changed with 41 votes, a state cannot violate its Constitution by referring to international law," he said.
Constitutional Court President Snežana Armenko asked whether the court should also assess compliance with constitutional principles or only the property rights of foreigners. Vukčević said that President Jakov Milatović had also pointed out the violation of competition law in Montenegro, and he believes that compliance with constitutional principles should be checked.
Professor of public international law and former judge of the European Court of Human Rights, Nebojša Vučinić, stated that this is a serious and profound legal gap, and said that this issue is definitely within the jurisdiction of the Constitutional Court.
Vučinić pointed out that the Law does not contain any decisive provisions on dispute resolution and believes that the document cannot be interpreted without delving into its essence.
Constitutional Court judge Faruk Resulbegović asked whether citizens would be in an unequal position compared to the UAE, while Vučinić stated that the answer to that question must be provided by the Constitutional Court.
"The purpose of the clauses is to equalize foreigners in the domestic market and the question of whether the community is being placed in an unequal position. It is impossible to resolve procedural issues without going into the merits," said Vučinić.
Constitutional Court President Snežana Armenko asked who would have jurisdiction in the event of a dispute, and Vučinić added that the Constitutional Court interprets that clause as well. He claims to believe that the Constitution and published and ratified treaties – have the same legal force.
Professor and doctor of constitutional law from Zagreb, Đorđe Gardašević, emphasized that he believes that the Constitutional Court should check whether this Law regulates the property rights of foreigners, because he believes that it concerns that sector.
"I think it is enough to say that the Constitutional Court has the authority, that it should not be at all controversial, to see whether the issue of stargazing is being regulated here or the issue of property rights of foreigners is being regulated. If it is, in the end, to see by what majority it was passed, Article 91 says that this would be a two-thirds majority. If it is not achieved, then in my opinion, this Law is repealed," Gardašević said.
Darko Dragović, a member of the Europe Now Movement (PES), stated in a statement that there is no provision in the Constitution of Montenegro that would authorize the Constitutional Court to assess whether a ratified and published international treaty is in accordance with the Constitution.
Read more about what Dragović said. HERE.
Professor and doctor of international private and environmental law from Podgorica, Maja Kostić Mandić, stated that there was no public participation, discussion or consultation regarding this agreement, and that there was no reason for the urgent adoption of the Law.
She stated that the adoption of the Constitution was conditional on the property rights of foreigners being decided by a two-thirds majority. Kostić Mandić said that Montenegro had unnecessarily assumed bilateral obligations, that is, it had committed itself to being sued for failure to fulfill the contract.
"You have an imprecision that suits one side, the Emirates have no obligations towards Montenegro, except for our company being an investor in the Emirates. International obligations are being taken on completely unnecessarily," she emphasized.
As she said, all similar agreements have guarantees for investors, that they are guaranteed the same rights as those from other countries, so other countries could join investment arbitrations because they should be given preferential treatment.
Constitutional Court judge Momirka Tešić asked about the most-favored-nation clause, Kostić Mandić said that colleagues from the region had the same position on this type of agreement and that legal opinions could have been obtained before signing the agreement.
Constitutional Court Judge Faruk Resulbegović asked whether such an agreement places the domestic population in a different position compared to the UAE, while Kostić Mandić pointed out that domestic companies must apply for tenders, respect procedures and the law, and pay their obligations, while these rules will not apply to private individuals from the UAE - and that this is economically unsustainable.
Constitutional Court judge Momirka Tešić asked Đurić on what basis the court has the right to assess the constitutionality of the agreement.
Đurić stated that every part of the legal order must be in accordance with the Constitution in both formal and substantive terms, and that the question is whether international treaties will be positioned as befits the profession or whether they will be put in a position to be confirmed by a simple majority - and enable any engagement of the executive branch.
"If the UAE entity were to seek the formation of an artificial island opposite Budva, do you know how big that island would have to be? Do you know that the Government would have to carry out all the infrastructure work, from the embankment to the work on the housing complex. Who would the island belong to? How would it be interpreted without using the Law on Public Procurement and Tenders? My opinion is that this agreement violates the essence of the Montenegrin order. It is an agreement whose provisions are non-transparent and legally difficult to understand, and I am afraid that it does not play into the hands of Montenegro as a sovereign and independent state," emphasized Đurić.
He added that it is inappropriate that the Constitutional Court cannot control the constitutionality of new agreements.
Constitutional Court Judge Faruk Resulbegović asked Đurić about the provisions that the agreement must be harmonized with domestic legislation, except in the context of tenders, i.e. that this is contrary to EU regulations and represents a contradiction of norms. Đurić pointed out that the provisions contradict the agreement with the EU and that this is sufficient for assessing constitutionality.
Constitutional Court President Snežana Armenko asked what happens if the Constitution and an international treaty treat an issue differently, and what the consequences are. Đurić stated that the Constitutional Court can decide that an agreement is untouchable, but that they can later receive constitutional complaints for earlier agreements that did not receive the same treatment – and they will not be able to approach these problems in a balanced way.
In presenting his expert opinion, Vladimir Đurić, professor and doctor of constitutional law from Belgrade, said that the Constitution in some articles speaks of ratified, and in others of ratified and published international agreements.
"Only those that have been confirmed and published can be part of the internal legal order. It seems to me that this is an error in expression, but that error can have certain consequences," he emphasized.
He added that it is absolutely impossible for the executive and administrative authorities to be allowed to assess the constitutionality of a contract, without the Constitutional Court later being able to assess the constitutionality.
Đurić also pointed out that the content of the agreement determines the majority by which it must be adopted in the Parliament.
"The fact that the Parliament has made a mistake so far and ratified all international agreements with a certain majority, the simplest one, is the Parliament's mistake - which should not untie the hands of the Constitutional Court when deciding on the constitutionality of this agreement. The agreement is such that property rights of foreigners are born, and ratification had to be carried out with a two-thirds majority," he pointed out.
Đurić added that the Constitutional Court should conduct a substantive or formal review of the constitutionality of the agreement.
Minister of Public Works Majda Adžović said that the discussion concerns exclusively the legal aspect of the Law, and that the Parliament has already given a political position on this issue. She emphasized that the Venice Commission has already stated that subsequent review and annulment of a ratified treaty could bring the state into conflict with its international obligations.
"Therefore, complying with the initiatives contrary to the position of the Venice Commission would have detrimental consequences for Montenegro's accession negotiations with the EU. Considering the allegations of the initiatives, the key question is what parliamentary majority was required to establish the agreement? The positions of the Government and the initiators differ on only one issue - that a two-thirds majority was required to pass the Law, while the Government is of the opinion that a qualified majority was not required...", she emphasized.
Adžović added that the Parliament applies the Constitution, and that the Constitutional Court is the only one that can correct decisions that concern it. She stated that when making a decision on the Law, the Parliament referred to the decision on the ratification of the NATO accession agreement, and that the Constitutional Court had previously stated that a simple majority was required.
"We come to the conclusion that the ratification of the agreement did not require a two-thirds majority. Even if the Government agreed that the agreement would regulate the property rights of foreigners, the cited decision of the Constitutional Court indicates that the provision of Article 91 refers to the laws regulating these issues, and not the Law ratifying the agreement. If the Constitutional Court were to decide to change its position, it would mean that it is abandoning the established case law that the court does not have the constitutionality to examine the constitutionality of the provisions of an international agreement," Adžović pointed out, and that this would be in line with EU norms on the rule of law.
She stressed that changing previous decisions would also affect previously signed agreements, such as the ratified NATO agreement. She added that the agreement is still not being implemented, and asked the court to reject the initiatives.
The representative of the NGO Center for the Protection and Study of Birds and lawyer Srđan Žarić said that they agree with Zenović's assessment, that in this case the interests of the investor are at stake and that they will be entitled to compensation.
The executive director of this NGO, Jovana Janjušević, emphasized that Montenegro is a signatory to numerous conventions on the protection of biodiversity, and that these obligations also exist in the process of accession to the European Union (EU).
She emphasized that the right of Montenegro, together with the entity, to prepare planning documents for protected areas is problematic.
Zenović said that he believes that this topic has been of concern to citizens for a long time and that he submitted the initiative in order to review the procedure for adopting this Law.
"The intention was not directed at anyone or the Government, but rather to protect the Constitution. The Government's position that believes that international treaties are above the Constitution is completely wrong. I believe that this would render the existence of the Constitution meaningless, especially if we were to ratify agreements like this one in the future...", Zenović emphasized.
He stated that rejecting these two initiatives would render the existence of the Constitutional Court meaningless, because the Law derogates from the norms of the Constitution. He emphasized that Article 91 of the Constitution stipulates that a two-thirds majority is required for the adoption of Laws regulating the property rights of foreigners, while a majority of 41 deputies voted in favor of the Law.
He added that the Law on Property and Legal Relations stipulates that foreigners cannot have property rights over natural resources, agricultural and forest land...
"The Constitutional Court will probably have to determine the compatibility of international treaties with international treaties of higher force. It is paradoxical that the Legislative Committee of the Parliament has greater powers than the Constitutional Court, and to refer to that opinion should be ignored. The only authoritative body that interprets the Constitution is the Constitutional Court. If such an agreement were to remain in force, I fear that the consequences would be far-reaching, as citizens would be put in a difficult situation," said Zenović.
The Constitutional Court today began a public hearing on the constitutionality of the Law on Ratification of the Agreement on Cooperation in the Field of Tourism and Real Estate Development between the Governments of Montenegro and the United Arab Emirates (UAE).
A review of the constitutionality of this Law was requested by Budva Municipal Assembly councilor Đorđe Zenović and the non-governmental organization (NGO) Center for the Protection and Study of Birds.
The Parliament adopted this Bill in April, after which President Jakov Milatović returned it for reconsideration. The law was then adopted once again in early June of this year.
Constitutional Court President Snežana Armenko said that the court is facing one of the most serious and important constitutional issues that the current composition of the Constitutional Court has faced during its mandate.
She emphasized that the initiatives submitted to assess the constitutionality of the Law on Ratification of this Agreement have raised various issues in the fields of constitutional, private international, public international and property law and have led the Constitutional Court to invite experts in these fields to provide relevant answers.
Bonus video:
