Exceptions

• Author: Krstic, Ivana
• Pages: 46-54

46

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements ( Article 4)

In Serbia, national legislation provides for an exception for genuine and determining

occupational requirements.

Article 16(3) of the LPD states that ‘different treatment, exclusion or giving priority on

account of the specific character of a job, for which an individual’s pe rsonal characteristic

constitutes a genuine and decisive precondition for performing the said job, if the objective

to be achieved is justified, shall not be considered to constitute discrimination’. This

definition does not explicitly state that such a requirement sh ould adhere to the

proportionality principle. However, Article 8 of the LPD is applicable in this case, as it says

that a violation of the principle of equality shall occur ‘if an individual or a group of persons,

on account of his/her or their personal characteristics, is unwarrantedly denied rights an d

freedoms or has obligations imposed that, in the same or a similar situation, are not denied

to or imposed upon another person or group of persons, if the objective or the consequence

of the measures undertaken is unjustified, and if the measures undertaken are not

proportional with the objective achieved’.

In addition, the Labour Law contains the same provision. It prescribes in Article 22(1) that

different treatment, exclusion or giving priority on account of the specific character of a

job shall not be considered as discrimination where the nature of a job is such, or where a

job is performed in such conditions that it con stitutes a genuine and decisive precondition

for performing the said job and where the purpose intended to be achieved is justifi ed.

Finally, Article 23 of the LPDPD stipulates that the following are not considered to constitute

discrimination based o n disability: the selection of candidates without disabilities who

achieved the best results on an assessment of psychological and physical abilities that are

directly related to the job requirements , and the adoption of incentive measures to fast-

track the employment of people with disabilities, in accordance with the law governing the

employment of people with disabilities.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Serbia, national law does not provide for an exception for employers with an ethos based

on religion or b elief as defined in Article 4 (2) of Directive 2000/78/EC. However, the LPD

provides for a somewhat different exception by stipulating in Article 18(2) that ‘The conduct

of priests, that is to say, religious officials, which is in keeping with a religious doctrine,

beliefs or the objectives o f churches an d religious communities entered in the register of

religious communities, in accordance with the law regulatin g the f reedom of religion and

the status of churches and religious communities, shall not be considered to constitute

discrimination’. The register is maintained by the ministry responsible for religious affairs

in accordance with the Law on Churches and Religious Organisations.149 This provision is

unclear, as it is not entirely certain what type of conduct it would pertain to; and it seems

to be very problematic as it provides a blanket exemption for religious officials.

- Conflicts between rights of organisations with an ethos based on religion or belief and

other rights to non-discrimination

In Serbia, there are specific p rovisions in this area relating to conflicts b etween the rights

of organisations with an ethos based on religion or belief and other rights to non-

discrimination. However, there is still no relevant case law on t his issue.

149

Law on Churches and Religious Organisations, Official Gazette of the Republic of Serbia, No. 36/2006, 27

April 2006.