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All Roads Lead to the EU: Montenegro - In Pole Position

All Roads Lead to the EU: Montenegro - In Pole Position

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“Immediately after gaining independence in 2006, Montenegro set EU accession and the integration process as one of its foreign policy priorities,” says Jovovic, Mugosa & Vukovic Managing Partner Vanja Mugosa. “It started membership negotiations with the EU in 2012 and has so far opened all 33 negotiating chapters, three of which have already been temporarily closed: Chapter 25 (Science and Research) in 2012, Chapter 26 (Education and Culture) in 2013, and Chapter 30 (External Relations) in 2017.”

Mugosa reports that, “although one of the youngest countries in Europe, Montenegro is today a leader in European integration.” Vukmirovic Misic Managing Partner Lana Vukmirovic-Misic seconds that, pointing to the latest European Commission Report, published on October 6, 2021, according to which, “Montenegro’s commitment to the goal of European integration is regularly stated as the country’s top priority and this mostly translates to policy decisions, as well.”

There are still hurdles along the way, though. According to Vukmirovic-Misic, “it is important to emphasize that Montenegro is the first country to start negotiations under the ‘new approach to negotiations’, which is much more complex because the key Chapter 23 (Judiciary and Fundamental Rights) and Chapter 24 (Justice, Freedom, and Security) are opened at the beginning of the negotiation process and will remain open until the end. These two chapters have the role of ‘controller of negotiations’ and, in case of a standstill, the entire negotiation process can be called into question.” Mugosa reports that, in terms of the current status, “negotiations for Chapters 23 and 24 are still ongoing, as is the verification of compliance with the final benchmarks for their closure.” In particular, according to Vukmirovic-Misic, the ‘point of tension’ is Chapter 23, with the 2021 EU Report stating that “Montenegro has made limited progress overall in this area and is only moderately prepared to apply the EU acquis. Constant concerns regarding this field have been expressed by EU officials and it remains an important area with great space for improvement for Montenegro.”

And “Montenegro has been explicitly warned that further accession shall depend on visible progress on the rule of law,” Vukmirovic-Misic says, pointing out that the initial “closing benchmark dates for each chapter were determined throughout the process of accession, all ranging from 2013 to 2017 and, therefore, have all expired.” Mugosa is equally uncertain: “Having in mind the duration of the integration process so far, as well as that of other countries in the region, it can be said that neither realistic deadlines nor a conclusion about the duration of negotiations can be drawn by analogy – it depends, from state to state, on the specifics of the process itself and the readiness of the legal system and other institutions to support it.”

The Grind Is There…

“Montenegro is constantly working on harmonizing its legislation with EU acquis,” according to Vukmirovic-Misic, who points to 157 laws being adopted between 2016 and 2020, as part of the government’s Programs of Accession to the EU.

While “key legislation in all negotiating areas has been largely adopted and harmonized with EU law,” Mugosa explains that “this is a long-term process, harmonization continues and new regulations or their amendments are still being adopted, depending on the requirements of the European Commission.” According to him, some of the most significant regulations passed are the Company Law, the Law on Public Procurement, and the Law on Capital Markets, with “all legislation concerning the field of competition” having been harmonized. And he expects several more laws or relevant amendments by the end of the current year: Law on Prevention of Money Laundering and Terrorism Financing, amendments to the Criminal Code, Law on the Origin of Property, Lustration Law, Lobbying Law, amendments to the Law on Free Access to Information, Law on Personal Data Protection, and amendments to the Law on Judicial Cooperation in Criminal Matters with EU Member States.

It is also “necessary for Montenegro to achieve visible and measurable results in the implementation of these laws,” Mugosa adds. “Therefore, the implementation of regulations and the creation of the necessary infrastructure for their implementation is something that awaits us in some areas and will perhaps be a more complex process than the harmonization of regulations, which is mostly completed.”

… Yet More is Needed

Vukmirovic-Misic points out that “the European Commission, in its EU Report 2021, states that the most important legal acts it expects are a Public Administration Reform and changes regarding the judiciary system.” She stresses the importance of regulating the financial market, including: “the Law on Payments, the Law on Credit Institutions, and the Law on Recovery of Credit Institutions, which have been subject to changes and new legal solutions in the past few years. It is of great importance to establish good solutions in these areas, in order to protect the financial market.” She agrees that the Law on Prevention of Money Laundering and Terrorism Financing should be a priority, as should the Law on Electronic Documents, the Law on Electronic Communications, and the Law on Information Security.

Mugosa, on the other hand, focuses on the “point of tension” mentioned earlier – Chapter 23. “Montenegro has been in the so-called ‘acting position status’ for quite a while, which significantly complicates the work of institutions in the judicial system,” he explains. “Namely, the Montenegrin Parliament has not yet elected a certain number of members of the Judicial and Prosecutorial Councils. The election of members of the Judicial Council has been awaited for more than three years, and that of the Prosecutorial Council for half a year.” In terms of what led to this, he points to “the impossibility of securing the required 3/5 majority for the election in Parliament, while the ruling majority cannot agree on the choice of members for the Prosecutorial Council.” To make matters worse, “the Constitutional Court and the Supreme Court work with significantly reduced capacities. The Constitutional Court should have seven judges, and currently has five, and that number will be further reduced soon, due to retirement. Having in mind the rules for functioning and the decision-making procedure of the Constitutional Court, the work of this court will, consequently, be blocked. The Supreme Court, which should have 17 judges, currently only has six – due to different interpretations of the provisions on the retirement of judges, which have led to a large number of resignations and dismissals.”

Spirits Are High

According to Vukmirovic-Misic, the Centre for Democratic Transition found that accession to the EU is supported by over 60% of citizens, “of which almost a third consider that Montenegro is moving as fast as circumstances allow and expect for the country to become a member of the Union by 2025, with more than half believing that young people would benefit from joining that community.” Mugosa, in turn, points to a survey of the General Secretariat of the Government of Montenegro carried out this year, “on the attitudes of citizens on European integration and the process of Montenegro’s accession to the EU, [which] showed that 73.8% of Montenegrins support accession to the European Union strongly or to some extent.”

“The high level of support among citizens and political parties, at the moment, supports the thesis that Montenegro will become a member of the EU whenever it meets all the criteria necessary for full membership,” concludes Vukmirovic-Misic.

This Article was originally published in Issue 8.11 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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