Personal and material scope
| Author | Kostic-Mandic, Maja |
| Pages | 33-52 |
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3 PERSONAL AND MATERIAL SCOPE
3.1 Personal scope
3.1.1 EU a nd non -EU nat ionals (Recit al 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 directi ves.
The Law on the Armed Forces of Montenegro, gene ral conditions of admi ssion, Article 47,
paragraph 1:
‘In order to be admitted to the service, a person shall fulfil the following general
and special condi tions. A person must be a Montenegrin citizen an d may not be a
citizen of any other state.’56
The Law on Civil Servants and Employees, general terms and condi tions, Article 34:
‘A state authority57 may establish an employment relationship with a person who is
a Montenegrin citizen.’58
A foreign national or a stateless p erson may establish an employment relationship with a
state body as an employee, und er conditions stipulated by a special law and international
conventions.59 The Law on the National Security Agency,60 Articl e 27a:
‘Employment with the Agency may b e attained by a person who, in addition t o the
general requirements for employment in a state body, m eets the following
requirements: 1) does not have citizenship of another state.’
The conditions referred to in 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 t reatment 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 Tempora ry Protection of Foreigners.62
3.1.2 Natural 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
56 Montenegro, Law on the Armed Forces of Montenegro (Zakon o Vojsci Crne Gore), Official Gazette of
Montenegro, nos. 51/17.
57 A 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.
58 Montenegro, Law on Civil Servants and Employees (Zakon o državnim službenicima i namještenicima),
Official Gazette of Montenegro, 02/2018.
59 Article 34 of the above-mentioned Law.
60 Montenegro, 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 whi ch govern human rights and freedoms,
including the p rohibition of discrimi nation,63 do not d istinguish between natural and l egal
persons and employ neutral terms to offer protecti on. Both categories are entitled to
protection from discrimination. As the ultimate guardian of the human rights and
freedoms set out in the Con stitution, the Consti tutional Court of Montenegro has made it
clear that both natural and legal persons can seek protection of these righ ts.64
The Law on the Prohibition of Discrimination explicitly provides tha t both natural and
legal persons may seek protection from discrimination on the basis of its provisions if
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 emp loyed.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 obtai ning benefits for the legal
person. Li ability of l egal persons al so exi sts where the action of the responsible person
was i n contrav ention of t he busi ness poli cy and orders of the legal person. Pursuant to
Article 2 of the Law, th e State of Montenegr o, state and local authorities cannot be held
liable for criminal offences, n or can a legal entity vested with public powers be h eld 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.
3.1.3 Private 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 pu blic sectors,
including public bodies, for the purpose of protection against di scrimination.
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 a re discrimi nated against on any
63 Article 8 of the Constitution, Official Gazette of the Republic of Montenegro, 02/07.
64 The Court’s Instruction for Completing a Constitutional Complaint Template offers this clarification.
65 Prohibited grounds are set out in Article 2, paragraph 2, of the Law on the Prohibition of Discrimination.
66 Montenegro, 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.
67 Montenegro, 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.
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