25 Mar, 2016

Serbian Parliament Adopts the New Act on General Administrative Procedure

On 29 February 2016, the Serbian Parliament adopted the new Act on General Administrative Procedure (the Act), which came into effect on 9 March 2016 and will be enforced as of 1 June 2017, save for certain provisions which will come into effect on 7 June 2016.

This is a completely new piece of legislation which will bring significant changes in the field of domestic administrative law. Therefore, a short summary of the most significant provisions of the Act is provided hereafter.

  • The scope of the Act has been significantly extended so as to govern the actions of authorities as they: 1) issue administrative acts; 2) issue letters of guarantee; 3) enter into administrative contracts; 4) perform administrative actions; 5) provide public services.
  • Particular issues of the administrative procedure may be governed by a lex specialis only if (i) that is necessary in certain administrative fields; (ii) it is in line with the basic principles of the Act and (iii) the level of protection of rights and legal interests of the parties provided by the Act is not reduced. By providing so, the Act has been elevated to the level of an basic act.
  • The principle of predictability is now bound to the principle of legality, pursuant to which the authorities shall have to consider the previous decisions reached in identical or similar administrative matters when dealing with administrative matters.
  • The principle of assistance to the party has been extended so that, when the authority finds out or assesses that the party and other participant in the procedure have grounds for exercising their right or legal interest, it must warn them. The extension of principle of assistance to the party also includes the obligation of authorities to warn the party in the event that a piece of legislation relevant for dealing with the administrative matter changes.
  • The principle of effectiveness and economy of procedure entails that the authority may demand from the party only data pertaining to its identification and the documents confirming the facts on which no official records are kept, while the access to data on which the official records are kept, obtaining and processing thereof are done ex officio. The authorized person of the authority which requests the party to submit the data on which the official records are kept may be held liable for misdemeanor. If the official records are kept by another authority, the authority which conducts the proceedings must urgently request the data, while the requested authority must provide access to the data within 15 days free of charge, if not stipulated otherwise. In the event that the requested data may be available by electronic means, the requested authority shall submit them as soon as possible.
  • Letter of guarantee is a new form in which the administrative authorities act. It is a written document which obliges the authority to, upon the respective request of the party, issue a respective administrative act. It does not regulate the rights and legal interests of the party, but is rather issued when a lex specialis stipulates so and under the condition that the party requests so.
  • Administrative contract is a new institute of the domestic administrative law and represents a bilateral written document which is concluded between the party and the authority, when a lex specialis stipulates so. Administrative contract establishes, changes or suspends a legal relation in the administrative matter and its content may not oppose public interest or legal interest of any third parties.
  • Administrative actions are defined by the Act as material acts of an authority which affect the rights, obligations or legal interests of the parties. The said actions are listed exempli causa: keeping records, issuing certificates, providing information, collecting statements. An administrative action may be challenged by filing a complaint, but only in the event that the said action is not connected to issuance of an administrative act.
  • When discussing provision of public services, it is differentiated between acting in order to satisfy the basic needs of natural and legal persons and acting in order to satisfy the needs of public service beneficiaries. A complaint may be filed in case they are not provided duly and properly.
  • The Act provides for a one-stop shop, which the party may address given that actions of one or more authorities are required in order for it to exercise its right(s). By doing so, it rationalizes and concentrates the procedure, while significantly improving the position of the party.
  • Electronic communication between the party and the authority is enabled, given that the party previously agreed to that or that a lex specialis stipulates so.
  • Notification of the party may be performed by a) electronic means, b) mail, v) service of communications, whereas the latter may be performed by a) personal, b) indirect, v) public service of communications. Provisions on personal service of communications have been changed compared to the current version of the Act, and public service of communications has been envisioned as a new way of serving the communications.
  • If the procedure has been initiated ex officio and in the interest of a party, it will be deemed initiated when the authority takes any action as to conduct the procedure, while the procedure which is not in the interest of a party will be deemed initiated when the party is notified of the act on the initiation of the procedure.
  • The Act prescribes in several places that a (procedural) decision shall be issued instead of a conclusion, whereas such conclusion may only be challenged by using a legal remedy against a decision.
  • Complaint is a new legal remedy which may be filed on grounds of default on obligation under an administrative contract, an administrative action or a manner of providing public services, if no other legal remedy can be filed.
  • The Act prescribes special cases of removal and change of a decision: change and annulment of a decision pertaining to an administrative dispute, reopening of a procedure, annulment of a final decision, termination of a decision, termination or change of an unappealable decision pursuant to a recommendation of the ombudsman.

Procedures pending at the moment when the enforcement of the Act starts, shall be finalized in line with the provisions of the current version of the Act. In the event that, following the start of the enforcement of the Act, the decision is annulled or set aside, the further procedure shall be conducted in line with its provisions. Harmonization of other acts with the Act shall be completed before 1 June 2018.

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