Personal and material scope

• Author: Kostic-Mandic, Maja
• Pages: 33-52

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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, the following citizenship requirements must be fulfilled in order to be

entitled to protection under the relevant national laws transposing the directives.

The Law on the Armed Forces of Montenegro, general conditions of admission, Article 47,

paragraph 1:

‘In order to be admitted to the service, a person shall fulfil the following general

and special conditions. A person must be a Montenegrin citizen and may not be a

citizen of any other state.’56

The Law on Civil Servants and Employees, general terms and conditions, Article 34:

‘A state authority57may establish an employment relationship with a person who is

a Montenegrin citizen.’58

A foreign national or a stateless person may establish an employment relationship with a

state body as an employee, under conditions stipulated by a special law and international

conventions.59 The Law on the National Security Agency,60 Article 27a:

‘Employment with the Agency may be attained by a person who, in addition to the

general requirements for employment in a state body, meets the following

requirements: 1) does not have citizenship of another state.’

The conditions referred toin paragraph 1 lines 1, 2 and 3 of this Article must also be

fulfilled by a person employed by the Agency as a trainee.

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

Foreigners61 and the Law on International and Temporary Protection of Foreigners.62

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

56Montenegro, Law on the Armed Forces of Montenegro (Zakon o Vojsci Crne Gore), Official Gazette of

Montenegro, nos. 51/17.

57A state authority, in terms of this law, includes: the Office of the President of Montenegro, the Parliament of

Montenegro, the Government of Montenegro, the Constitutional Court of Montenegro, the Court and State

Prosecutor’s Office (hereafter: state body). This law applies to employees of the Pension and Disability Fund

of Montenegro, the Health Insurance Fund of Montenegro, the Employment Bureau of Montenegro, the

Labour Fund and the Agency for Peaceful Settlement of Labour Disputes. This law also applies to employees

in other agencies, regulatory and independent bodies, if prescribed by a special law.

58Montenegro, Law on Civil Servants and Employees (Zakon o državnim službenicima i namještenicima),

Official Gazette of Montenegro, 02/2018.

59Article 34 of the above-mentioned Law.

60Montenegro, Law on the National Security Agency (Zakon o Agenciji za nacionalnu bezbjednost), Official

Gazette of Montenegro, nos. 28/05, 86/09, 20/11, 8/15.

61 Montenegro, Law on Foreigners (Zakon o strancima), Official Gazette of Montenegro, No.2/2018.

62 Montenegro, Law on International and Temporary Protection of Foreigners (Zakon o međunarodnoj i

privremenoj zaštiti stranaca), Official Gazette of Montenegro, No.2/2017.

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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,

paragraph 2, of the LPD.

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

including the prohibition of discrimination,63 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.64

The Law on the Prohibition of Discrimination explicitly provides that both naturaland

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 grounds65 (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.66

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,67 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.

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 toprotection from discrimination belongs to all natural and legal persons to

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

63Article 8 of the Constitution, Official Gazette of the Republic of Montenegro, 02/07.

64The Court’s Instruction for Completing a Constitutional Complaint Template offers this clarification.

65Prohibited grounds are set out in Article 2, paragraph 2, of the Law on the Prohibition of Discrimination.

66Montenegro, Labour Law (Zakon o radu),Official Gazette of Montenegro, no. 49/08, 26/09, 88/09, 26/10,

59/11, 66/212, 31/14 and 04/2018.

67Montenegro, Law on the Liability of Legal Persons for Criminal Offences (Zakon o odgovornosti pravnih lica

za krivična djela), Official Gazette of the Republic of Montenegro, nos. 02/07 and 13/07.