Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Kostic-Mandic, Maja
• Pages: 63-66

63

5POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive

2000/78)

a)Scope for positive action measures

In Montenegro, positive action in respect of racial or ethnic origin, religion or belief,

disability, age or sexual orientation is permitted in national law.

The Constitution of Montenegro provides that regulations and the introduction of special

measures aimed at creating conditions for the realisation of ethnic, gender and overall

equality and protectionof people who are in an unequal position on any grounds is not

considered discrimination, provided that the special measures last only until the

achievement of the aims for which they were undertaken (Article 8). The Constitution

also provides for specialminority rights, which include the right to authentic

representation of national and ethnic minorities in the Parliament of Montenegro and in

the local government assemblies, in which they represent a significant share of the

population, according to the principle of affirmative action, as well as the right to

proportional representation in public services, state authorities and local government

bodies (Article 79).

Article 79, paragraph 10, of the Constitution establishes the right for ethnic minorities to

proportional representation in public services, state authorities and local self-government

bodies. Article 25 of the Law on Minority Rights and Freedoms (which deals with the

rights of ethnic minorities) states that members of minorities have the right to

proportional representation in public services, state bodies and local government.

Competent bodies in charge of human resources, in cooperation with councils for

minorities, must ensure the representation of members of minorities. However, in

practice, these provisions are not implemented, especially for Roma, in relation to whom

ethnic distance is greater in comparison with other ethnic minorities.

The Law on the Prohibition of Discrimination, Article 5, paragraph 2, provides that:

‘Regulations and special measures aimed at creating conditions for the realisation of

national, gender and overall equality and protection of persons in an unequal

position on any ground may be adopted by authorised state and local authorities,

authorities of the state administration, public enterprises and other legal persons

performing public powers, as well as other legal and natural persons.’

The measures referred to in Article 5 must be applied in proportion to what is required

and possible and should last until the goals established by those measures are achieved.

The first paragraph, in fact, provides an exception for genuine and determining

occupational requirements, while the wording of the second paragraph suggests the

intention to cover both the concept of reasonable accommodation and that of positive

action.

Article 9 paragraph 2 of the Labour Law referred to as ‘positive discrimination’prescribes

that provisions of laws, collective agreements or contracts of employment will not be

considered as discrimination where they relate to special protection and assistance for

specific categories of employees, and in particular where they govern the protection of

people with disabilities, women during pregnancy and maternity leave and leave from

work for the purpose of childcare, i.e. special childcare, as well as provisions relating to

special rights for parents, adoptive parents, guardians or foster parents.

On the other hand, the Law on the Prohibition Discrimination of Persons with Disabilities

prescribes the obligation for state bodies, government bodies, local self-government

bodies, public enterprises and other legal persons vested with public powers, as well as

other legal and natural persons within their competencies and powers, to deliver,