Personal and material scope

• Author: Maja Kostić-Mandić
• Pages: 34-54

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3PERSONAL AND MATERIAL SCOPE

3.1Personal scope

3.1.1EU and non-EU nationals (Recital 13 and Article 3(2), Directive 2000/43

and Recital 12 and Article 3(2), Directive 2000/78)

In Montenegro, there are no residence or citizenship/nationality requirements for

protection under the relevant national anti-discrimination legislation.

The right to protection against discrimination belongs to all natural and legal persons ‘to

whom the regulations of Montenegro apply’, if they are discriminated against on any of the

grounds referred to in Article 2(2) of the LPD. The position of EU and non-EU nationals is

not especially addressed by the LPD but the Stabilisation and Association Agreement

between EU and Montenegro addresses the prohibition of discrimination of nationals of the

Parties among other, regarding movement of the employees (Article 49), education and

vocational training (Article 102) and access to justice (Article 126).

The Labour Law explicitly stipulates that its provisions apply to foreigners who work for the

employer in the territory of Montenegro if not provided otherwise by a special law (Article

2(3)).

Other laws addressing the rights of foreigners do not contain anti-discrimination provisions.

The Law on Foreigners only explicitly stipulates the obligation on foreigners to respect the

regulations in force in Montenegro and the decisions of state bodies during their movement,

stay and work inMontenegro. Although it does not provide explicit protection against

discrimination, those persons are protected by the Constitution of Montenegro and the LPD.

The same interpretation should apply to asylum seekers and migrants.

With regard to the treatment of irregularly present migrants on its territory, Montenegro

has fully implemented EU migration standards through the adoption of the Law on

Foreigners59 and the Law on International and Temporary Protection of Foreigners.60

3.1.2Natural and legal persons (Recital 16, Directive 2000/43)

a)Protection against discrimination

In Montenegro, the personal scope of anti-discrimination law covers natural and legal

persons for the purpose of protection against discrimination. All natural and legal persons

to which Montenegrin legislation is applicable have the right to be protected from

discrimination, if they are discriminated against on any ground covered by Article 2(2) of

the LPD.

The provisions of the Montenegrin Constitution which govern human rights and freedoms,

including the prohibition of discrimination,61 do not distinguish between natural and legal

persons and employ neutral terms to offer protection. Both categories are entitled to

protection from discrimination. As the ultimate guardian of the human rights and freedoms

set out in the Constitution, the Constitutional Court of Montenegro has made it clear that

both natural and legal persons can seek protection of these rights.62

59 Law on Foreigners (Zakon o strancima), Official Gazette of Montenegro, Nos. 2/2018 and 3/19.

60 Law on International and Temporary Protection of Foreigners (Zakon o međunarodnoj i privremenoj zaštiti

stranaca), Official Gazette of Montenegro, Nos. 2/2017 and 3/19.

61Constitution of Montenegro, Official Gazette of Montenegro, No. 02/07, Article 8.

62The Court’s ‘Instruction for Completing a Constitutional Complaint Template’ offers this clarification.

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The Law on the Prohibition of Discrimination explicitly provides that both natural and legal

persons may seek protection from discrimination on the basis of its provisions if they feel

they have been discriminated against on any of the prohibited grounds63 (Article 3).

Due to its nature, the provisions of the Labour Law (Article 5) offer protection only to

natural persons who are either seeking employment or are already employed.64

b)Liability for discrimination

In Montenegro, the personal scope of anti-discrimination law covers both natural and legal

persons for the purpose of liability for discrimination.

With regard to criminal liability for discrimination, the regimes for natural and legal persons

differ. Criminal liability in relation to natural persons is governed by the Criminal Code,

Article 443, while liability in relation to legal persons is governed by a separate law. Under

the Law on the Liability of Legal Persons for Criminal Offences,65 a legal person can be held

liable for criminal offences committed by persons acting on its behalf within the boundaries

of their powers with the intention of obtaining benefits for the legal person. Liability of legal

persons also exists where the action of the responsible person was in contravention of the

business policy and orders of the legal person. Pursuant to Article 2 of the Law, the State

of Montenegro, state and local authorities cannot be held liable for criminal offences, nor

can a legal entity vested with public powers be held liable for a criminal offence committed

in the performance of such powers.

With regard to civil law liability, national law does not distinguish between natural and legal

persons and both natural and legal persons may be held civilly liable, for instance, under

the LPD and the LPDPD.

3.1.3Private and public sector including public bodies (Article 3(1))

a)Protection against discrimination

In Montenegro, the personal scope of national law covers the private and public sectors,

including public bodies, for the purpose of protection against discrimination.

Article 3 of the LPD stipulates:

‘The right to protection from discrimination belongs to all natural and legal persons to which

the Montenegrin legislation is applicable, if they are discriminated against on any ground

referred to in Article 2(2) of this Law. This Law shall apply to the public and private sector.’

b)Liability for discrimination

In Montenegro, the personal scope of anti-discrimination law covers both the private and

public sectors for the purpose of liability for discrimination.

The provision that allows employees and job applicants to initiate legal proceedings against

employers (natural and legal persons, including the public sector) before the relevant court

in cases of discrimination does not explicitly specify the type of legal proceedings, but it is

clear that it covers both civil and administrative procedures regarding liability for

discrimination in the workplace and employment in general (LL, Article 16).However, other

63Prohibited grounds are set out in the Law on the Prohibition of Discrimination, Official Gazette of

Montenegro, Nos. 46/2010,18/2014 and 42/17, Article 2(2).

64Labour Law, Official Gazette of Montenegro, Nos. 49/08, 26/09, 88/09, 26/10, 59/11, 66/212, 31/14 and

04/2018.

65Law on the Liability of Legal Persons for Criminal Offences (Zakon o odgovornosti pravnih lica za krivična

djela), Official Gazette of Montenegro, Nos. 02/07,13/07, 073/10, 30/12 and 39/16.