One of the new possibilities introduced by the new Serbian General Administrative Procedure Act is an administrative guarantee. It is a statement issued by an authority that it will issue an administrative act at the request of a party. By issuing an administrative guarantee, the authority guarantees that the act issued will have a precisely defined content.
The Act does not stipulate when an administrative guarantee could be issued, and leaves this to be regulated by sector legislation instead. This legislation will have to lay out the conditions that petitioners have to meet in order to obtain the guarantee. However, if the facts of the case change significantly after the issuing of the guarantee the authority can refuse to issue the administrative act when requested.
Three pieces of legislation currently in force provide for an administrative guarantee – Act on Serbian Citizenship, Regulation on Customs Proceedings with Imported Goods, and Act on Nationality and Registration of Watercraft. It is expected that the business community in Serbia will try to persuade legislators to use this possibility as much as possible in future legislation.
The rationale behind the administrative guarantee is to increase the predictability in longer and more complicated administrative procedures. The practice so far was to organize “consultations” with officers of a certain authority to gain information about hypothetical future requests. The officers would provide information which was informal and often would turn out to be incomplete or just wrong. Because of this informality, the authority was not bound by them and if the officer providing information was not the one actually conducting the procedure the information could be of little value.
The validity of the guarantee is one year and, if used properly, it could save lots of time and resources. However, it remains to be seen whether the legislators will use this possibility more often in future legislation. It will also be important for authorities issuing the guarantees to act according to them upon request. The key will be careful examination of the facts of the case by both the petitioner and the authority prior to requesting and issuing the guarantee.
By Milan Samardzic, Partner, and Dusan Dincic, Associate, Samardzic, Oreski & Grbovic