“Lex specialis“ - for exceptional cases only

Transparency – Serbia (official chapter of Transparency International) considers it right that the Government of Serbia, reacting to advocating of Ombudsman, decided to use regular instead of emergency procedure for adoption of „lex specialis“ on expropriation for "Belgrade Waterfront"[1] project. That leaves more time for consideration of other legal solutions for regulating this issue and amendments.

However, this resolves only one problem. Generally speaking, Transparency – Serbia thinks that due to respecting of principles of unity of legal system, legal safety and predictable business surroundings, not the best method to regulate any matter through laws that would be effective in just one case. Possible adoption of law that is effective in just one case, would carry one more risk - raising of constitutionality issue on several grounds (right to peaceful use of property, equality of economic entities, unity of legal system). We emphasize that regulations on public debates should be differentiated from emergency or regular procedure of law adoption. Law on State Administration prescribes that ministry that prepares the draft should organize public debate for each law (whether it later on goes to emergency or regular procedure), "If the law significantly changes legal regime in certain area or law that regulates matters of special interest to the public". Duration of that public debate, according to Governmental Rules of Procedure, is the least twenty days, by previously adopted program, out of which 15 days the least should be left for submitting of prepositions and comments.

If the Government considers provisions of systemic laws for certain area are not satisfactory, than it should propose their amending. Therefore it would be good to use such delays in future for consideration of possible amendments to Law on Expropriation and Law on planning and Construction[2] instead of frequent proposing of „lex specialis“, and to adopt precise and elastic changes that would allow regulating of problems that occur with systemic laws.

Transparency – Serbia

Belgrade 16.3.2015.

[1] In this moment, Draft law is on the agenda of the National Assembly for today. http://www.parlament.gov.rs/upload/archive/files/cir/doc/predlozi_zakona/547-15.doc

[2] From the same reasons, recently adopted special law that regulates implementation of the project of pipeline "Južni tok" was problematic (even than Law on Expropriation was not amended in order to regulate matter the same way that any main pipeline would be regulated).