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Law on General Administrative Proceeding (“Official Gazette of the RS” no. 18/2016)

08. May 2017. | Author: admin

The National Assembly of the Republic of Serbia has rendered on the sitting of the Seventh extraordinary session in 2016, on February 2016, the Law on General Administrative Proceeding („Official Gazette of the RS“, no. 18/2016, hereinafter: the „Law“) which has entered into force on March 9, 2016. The Law shall be applied as of June 1, 2017, with the exception of the Articles 9, 103 and 207 which became applicable in the course of 90 days upon entering into force, that is as of June 8, 2016.

New Law introduces significant novelties which expand the application of the Law, sets forth new principles and expands the definition of the existing ones, the communication and deliverance system is enhanced, legal remedies are changed, special terms for cancelling administration acts are included, new institutes regulated etc.

Firstly, the Law amends the definition of the legality principle that is now named as the principle of legality and predictability and introduces the obligation of the competent authority to, when deciding in an administrative matter, take into account previous decision rendered in same or similar administrative proceedings, which promotes legal security and certainty for the party involved and sets relevant practice in administrative matters. The principle of legal aid is also extended so now the competent administrative authority is officially obliged to warn the party or other participant in the proceeding of potential legal grounds for realizing certain right or legal interest and inform them if a change in applicable administration legislation occurs. In accordance with the principle of effectiveness, the competent authority can only request information that are necessary for that party`s identification and documents that confirm the facts that are officially recorded, while obtaining information that are officially recorded and their processing is done officially.

The Law sets out the difference between providing public services for settling basic requirements of individuals and legal entities, whereas if there are not provided with quality, the Law prescribes new legal remedy for the protection of interest of the party involved – objection.

Another new institute introduced by the Law is the guarantee act that is a written act that obliges the administrative authority to render a specific administrative act if the party submits such request and if this is prescribed by the law.

Furthermore, the Article 22 of the Law prescribes the institute of administrative agreement which is defined as mutually binding act which, in accordance with the law, is concluded between the administrative authority and the party, and whose content cannot be contrary to the public interest or the legal interest of third parties. If the administrative authority is no complying with the agreement, the party can raise an objection, but cannot terminate the agreement.

Administrative actions are prescribed by the Article 27 of the Law and are defined as material acts of the administrative authority that affect the rights, duties or legal interests of the parties involved, such as recording, issuing certificates, providing information, receiving statements and other actions that serve for implementation of administrative acts. Administrative actions are subject to an objection only if these are not in relation with rendering the administrative act.

Another novelty introduced by the Law is the single administrative point that the party addresses if it is necessary for actions of more than one authority for realization of one or more rights, which contributes to the concentration of the procedure and better position for the party.

Significant novelties also refer to the communication between administrative authorities and parties, so the Law now prescribes electronic communication between the authority and the party, if the party provides its consent or if this is set forth in special regulation, upon the public authority publishes the information about this mean of communication on its web presentation. Also, the provisions that prescribe personal deliverance are more thoroughly regulated, and public deliverance introduces as another way of deliverance.

According to the provisions of the previous law, the procedure was initiated officially once the authority undertakes any action in that regard, while now the Law sets the difference depending on whether the procedure has been initiated in the in the interest of the party involved. If the procedure is initiated officially and is not in the interest of the party, it shall be considered initiated once the party has been informed of the initial act, while as for the procedures that are in the interest of the party, the previous solution shall apply.

Furthermore, the reasoning for an appeal has been broadened so now an administrative act can be contested if it has not been rendered in the guaranteed term. Another novelty refers to the possibility for both party and a person that is not granted the status of a party can both waive the right to an appeal as from the moment of receiving the notification on the rendered decision until the expiration of the term for submitting an appeal. In accordance with the principles of economy and efficiency, such statement cannot be revoked. The Law also prescribes that the appeal is submitting in certain cases to the second instance authority, instead to the first instance authority, especially in cases of silence of administration, against the decision on dismissal of the appeal and the decision on upholding the appeal.

What has also been enhanced are the extraordinary means of administrative control which now include: changing and annulling decision with respect to the administrative dispute, repeating the procedure, annulling final decisions, cancellation of decisions and annulling, cancellation or changing the final decision upon the recommendation of the Ombudsman.

Finally, the provisional and final provisions of the Law prescribe that the procedures that have not been finalized until June 1st, 2017, shall be finalized in accordance with the law that was applicable before the application of this Law. Additionally, if the decision of the first instance authority is annulled or cancelled, the further proceeding is conducted in accordance with this Law.