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Ideas for Transformation of the EU Enlargement to the WB

The European Union (EU) is tired of enlargement and the citizens of the region are tired of waiting for the benefits of EU integration. It is obvious that the existing approach does not yield results and that fresh ideas are needed.

In order to contribute to the new dynamics of EU enlargement to the Western Balkan, within the network of think tanks from the region TEN  (Think for Europe Network), and together with the Center for European Policy Studies from Brussels, we have prepared  set of new ideas.  Our ideas are focused on early EU integration, which will provide more tangible incentives for countries aspiring to full membership.

We advocate the adoption of a new methodology, which will enable gradual functional and institutional integration based on an objective monitoring, which will be accompanied by concrete quantitative indicators of progress.

Our ideas were sent at the moment when the EU presidency is taken over by Slovenia, which promised that enlargement will be in its focus. Read more on this link.

 

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Monitoring Report on the Freedom of Assembly in Montenegro

(September 2020 – May 2021)

The eight-month long reporting period included 180 public assemblies; that equalled only 28 percent of the number recorded for the first three quarters of 2020. The number of the public assemblies that were temporarily banned was six, identical to the previous reporting period. The share of assemblies that resulted in violence or disorder was on the rise: close to 10 percent of the assemblies were not peaceful, against 1.3 percent, which was the figure for the first nine months of 2020. The rising trend in the share of assemblies without advance notification was evident from the beginning of 2020: more than 75 percent of the assemblies held in 2020 and in the first five months of 2021 were without advanced notification. That prevented the police from developing timely policing plans.

The legal gaps, in particular those related to regulation of spontaneous assemblies, produced further legal uncertainties. Selective police treatment was also recorded: on 12 May 2021, the police instructed the participants in a pro-Palestine protest in Podgorica to disperse, but did not do the same at the mass procession held on the same date in Niksic. Public opinion polls showed that the predominant view was that the police were not using excessive force, but 53 percent of citizens thought that the competent authorities were applying selective treatment, with unwarranted restrictions imposed on some assembly types and organisers. Only slightly more than one-third of citizens knew that assembly notifications were to be submitted to the Police Administration.

Spontaneous public assemblies need to be better regulated and the Law has to be aligned with the Constitution in relation to the permanent ban on public assemblies. When setting the epidemiological measures, competent authorities should seek to preclude the counter-effects, such as assemblies without advance notification. Police officers need to continue with their professional development concerning the treatment of spontaneous assemblies and assemblies without advance notification. Further activities are needed to build citizen awareness concerning their rights and obligations and to strengthen parliamentary oversight of the exercise of the right to freedom of assembly.

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For Free Access to Information without Excuses

In our comments on the Draft Law on Free Access to Information we pointed out that certain provisions, imprecisely determined restrictions such as trade secret or protection of intellectual property, as well as unclear dynamics of proactively publishing of information of public importance, can thwart deviation from previous bad implementation of this act.

Institute Alternative took part in the public debate and the round table on amendments to the Law on Free Access to Information (FOI) and presented key recommendations for recovery of public sector transparency.

For the legal security of the implementation of the innovated law, it is crucial to prescribe the obligation to compile and regularly update the catalog of public state authorities that subject to obligations related to free access to information (catalog of those obliged to apply the FOI Law). This will avoid situations in future, which Institute Alternative has found itself several times, and that is that a state authority, like a majority state-owned company, claimed that is not obliged to apply the FOI Law and that we are arguing before the Administrative Court.

This Law kept trade secret and protection of intellectual property as a basis for restricting access to information. The problem is that meaning of these terms is drown from a number of other laws that mostly defines them in the context of private sector. Consistent implementation of these definitions to the public sector, and in the context of the implementation of Law on Free Access to Information, would make the very spirit of free access to information meaningless and derogate from the key principles of this umbrella Law.

In our analysis “Trade secret of public enterprises” from 2019, we tried to count all laws that on different way define trade secret (nine of them). We illustrated the confusion created by introducing this restriction during the amendments to the Law on Free Access to Information in 2017. In order to prevent the internal acts of certain bodies from derogating from the provisions of the Law on Free Access to Information (as did and do some companies in majority state ownership, as if they were private ) we believe that a possible solution should be sought in a way that clearly defines trade secret. In the spirit of this Law, trade secret may possibly include only information that has commercial value, contains undisclosed knowledge, inventions, achievements (innovations), which did not arise within the provision of a certain public service and which do not relate to the disposal of funds from public revenues and state property. It may also include information for which the obligation of proactive publication in other special laws is not prescribed, ie, for the publication of which there is no predominant public interest.

We also consider that restriction of access to information related to the initiation and conduct of ex officio disciplinary, administrative and judicial proceedings, and the termination of these proceedings, is too broad. We believe that such an exception would be a kind of “autogol” to free access to information, since almost every action of public bodies is an administrative procedure.

In the part concerning the proactive publishing, we believe that the Law on should prescribe the dynamics of publishing all documents subject to the obligation of  proactive publishing (lists of employees and public officials and acts on internal organisation, contracts, annexes to contracts, etc). Irregular updating is the  fate of most databases in Montenegro. We believe that the Law should precisely ensure that these documents are published or updated within seven days of adoption and/or change.

Also, it should be granted that information on grants, subsidies, loans, sponsorships,  donations, information on individual payments to individuals and legal entities are published at least on a monthly basis, by the tenth day of the current month for the previous month. There is no justification for quarterly reporting on these issues. The authorities have already proven that they are able to produce this information even on a weekly basis, according to the Law on the Financing of Political Entities and Election Campaigns. In order to ensure full transparency, it is necessary that, in addition to information on individual distribution of funds to individuals or legal entities (tabular, as now provided) to publish the acts on the basis of which payment are made – contracts, invoices, warrants, decisions and other acts.

The exception exempting from the right to access to information funds allocated for social benefits, health care and unemployment should be deleted, as the authorities abuse it and reject requests for FOI, although the ways to protect  this information are already prescribed in detail by another article and the Law on Protection of Personal Data.  We would like to remind, under auspices of such an exception, data on expenditures from the current budgetary reserve are protected, among other things.

Detailed comments prepared by Institute Alternative are available on this link (in Montenegrin).

Stevo Muk
President of the Managing Board at Institute Alternative

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Models for improving the system of prevention of conflicts of interest in public procurement

Prevention plays significant role in the system of prevention of conflict of interest in public procurement, and is reflected in the prevention of the conclusion of public procurement contracts that involve conflict of interest.

Montenegrin Public Procurement Law requires the contracting authorities to sign conflict of interest declarations ahead of a public procurement procedure, or during a procedure, should conflict of interest occur. One of the shortcomings of our system is that the contracting authority keeps the records and is oblige to verify the conflict of interest declarations and act accordingly, although it has no (automated) access to the registries and databases that would be of assistance (Tax Administration, database of asset records of public officials, The Central Register of Commercial Entities, the Central Population Registry).

 

 

The shortcoming of our system is that inspection supervision refers solely in terms of verification of compliance with the statutory obligations related to recording instances of conflict of interest and excluding relevant bidders from the procedure.

In order to improve the system of conflict of interest in public procurement through preventive action, we can use the models of the countries in European Union (Romania and Croatia) and the Western Balkans (Bosnia and Herzegovina and North Macedonia).

How to act preventively?

Croatian model contains numerous mechanisms in particular in terms of enhanced transparency of declarations and other mechanisms aimed at conflict-of-interest prevention. This primarily refers to the obligations of publishing the declaration of (no) conflict of interest of all the persons involved in the public procurement procedure in the Electronic Public Procurement Journal, and of drafting, publishing and regularly updating the lists of economic operators that heads of contracting authorities are not allowed to conclude contracts with due to the presence of certain private interests; besides Croatia, these exist also in Bosnia and Herzegovina.

For the conflict-of-interest prevention measures not to lead to excessive exclusion of economic operators from public procurement procedures, the model of North Macedonia deserves to be considered, in terms of defining the acceptable percentage of the value of public procurement contracts with the bidder in whom a person from the contracting authority has some private interest. The percentage would have to be proportionate to the total Montenegrin public procurement budget, but it would also have to be specially adjusted to various specific types of contracting authorities, including those with smaller procurement budgets. Development of an IT solution that would facilitate detection of potential (apparent) conflict of interest and prevention of its occurrence, following the PREVENT model from Romania, should also be considered.

This model largely relies on databases and the level to which they are linked (The Central Register of Commercial Entities, the Central Population Registry, database of asset records of public officials…).

Continuity of operation and collection of large quantities of data over a longer period of time are of significance for the operation of these controls. That enables identification of “patterns” in behaviour, monitoring of developments and changes in ownership structure of bidders and of any developments related to the contracting authorities and their heads changing their positions.

Even though Montenegro does not have an umbrella institution responsible for identification of conflict of interest in public procurement, running a registry and recording conflict of interest and actions taken,  there are technical preconditions for setting up such a system of control (PREVENT).

Through the cooperation between the Agency for the Prevention of Corruption and the Ministry of Finance and Social Welfare, which runs the Electronic Public Procurement Journal, and with involvement of other public procurement system actors and with consent of the decision-makers and political entities represented in the Parliament, with amendments to the legal framework and provision of technical preconditions and resources, such a system could come to life in Montenegro.

The mentioned models are explained in more detail in the analysis “Conflict of Interest in Public Procurement”.

Participants of the conference “Fight against corruption and prevention of conflict of interest in public procurement” organised by Institute alternative, had opportunity to hear experiences of these countries and how these models work in practice. It was concluded at the conference that the system of prevention can be improved through preventive and repressive system. It is necessary to network the system, not to put all pressure on one institution and in order for the public to have a controlling role it is necessary to improve transparency.

The text was prepared within the project “For the Better Use of Public Money!”, implemented by the Institute Alternative with the financial support of the Embassy of the Kingdom of the Netherlands. The opinions and views expressed in this text do not necessarily reflect those of the Embassy.

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Database networking is key to preventing conflicts of interest in public procurement

Podgorica, PR Press Service–  The system of prevention and prosecuting conflicts of interest in public procurement can be improved through preventive and repressive actions. It is necessary to network the system, avoiding to put all the pressure on one institution, and for the public to have a control role it is necessary to improve transparency.

This was stated at the conference “Fight against corruption and prevention of conflict of interest in public procurement”, organised by the Institute Alternative. The conference was organised within the project “For the Better Use of Public Money!”, with the financial support of the Embassy of the Kingdom of the Netherlands in Serbia and Montenegro.

Stevo Muk, President of the Managing Board of Institute Alternative, believes that resolving a potential conflict of interest on time and in the public interest is one step before the conflict of interest becomes corruption, and that correcting the consequences of conflicts of interest is a costly and arduous process.

“Montenegro so far lacked a strategic, reformist and systematic approach to this topic. How many times have we heard how small Montenegro is and that “everyone is in a conflict of interest with everyone”. It It is the fact that countries with smaller population have also managed to solve, or at least to reduce the scope of this problem. This is why that should not be an excuse for our country. Especially because over half a billion euros a year, or over 10 percent of GDP, is spent on public procurement”, said Muk.

Anne Sietske Brinks, Deputy Head of Mission of the Embassy of the Kingdom of the Netherlands in Serbia and Montenegro, explained that the conflict of interest in public procurement is a key indicator of the country’s success in accession to the EU.

“We have concluded that progress has been made, but much remains to be done. In the upcoming period, Montenegro should work on the implementation of the adopted laws, to respect the EU principles for public procurement and to improve the system defined by the EU Rulebook. Conflict of interest is a complicated topic, with many different layers and it takes time to resolve this matter. The good news is that we can start today, because the rules are important, but sooner or later it all comes down to our behaviour, or the behaviour of others that we tolerate,” said Sietske Brinks.

German Filkov, President of the Center for Civil Communications from North Macedonia, said that a novelty is that the members and the president of the State Commission for Public Procurement Appeals may be exempted from working on a specific case in which there is a conflict of interest on their part.  “The employment and engagement of, business cooperation with and acquisition of ownership by a person from the contracting authority in a tender awarded company is prohibited, if the person has participated in the procurement procedure with that company and if its share is greater than 5% of the value of all contracts of the contracting authority”, stated Filkov.

In practice, not only in public procurement, but in general, there is a low level of recognition of conflicts of interest and even less knowledge of their successful management.

Dubravka Klišmanić, Head of the Procurement Department at the Faculty of Mechanical Engineering and Naval Architecture at the University of Zagreb, explained that the contracting authority is required to implement appropriate measures to effectively prevent, identify and eliminate conflicts of interest related to a public procurement procedure in order to prevent distortion of competition and ensure equal treatment of all economic operators.

“The contracting authority is also required to post on its webpages the list of economic operators that its head or member of managing, governing or supervisory body  of contracting authority or persons related to them are in conflict-of-interest situation with, or statement that no such economic operators exist, and include that information in the bidding document” said Klišmanić.

Aleksandra Martinović, Chairperson of the Parliament, Transparency International, Bosnia and Herzegovina said that the absence of adequate policies and practices in conflict of interest prevention and management in general, and in particular in the field of public procurement, constitutes a major factor contributing to the image of state capture of Bosnia and Herzegovina and its institutions, and consequently of the public procurement system in Bosnia and Herzegovina.

“The references made in the PPL to the provisions of the regulations on conflict of interest at different levels of government is problematic, as in the B&H there are no laws that are mutually aligned and address conflict of interest in a uniform manner. The regulations on conflict of interest are numerous, complicated, inconsistent and inefficient, and the laws are not applied at some administrative levels, so the implementation of the mentioned provisions of the PPL can not be ensured”, said Martinović.

She pointed out that examples of good practices can be found at certain lower administrative levels.

Silviu Popa, Secretary General of the National Integrity Agency, Romania, pointed out that in less than two years, the ANI managed to build an electronic system (PREVENT system) that automatically crosschecks relevant data from various databases and registries in order to detect potential familial links in public procurement procedures, links between contracting authorities and bidders that could determine the existence of a possible conflict of interest.

“Within the same period, the Romanian authorities adopted the legislation that accompanied PREVENT to enable it to function. When potential conflict of interest can not be prevented, then there is nothing we can do”, added Popa.

Jelena Jovetić, General Director of the Directorate for Public Procurement Policy in the Ministry of Finance, said that the New Law on Public Procurement, which has been in force since July, has significantly improved transparency.

“What is of special importance to us is the new electronic public procurement system, whose implementation started in January. Although it was difficult and challenging, we had about 550 million public procurement in the year behind us. These are procurement without procurement of energy and coal. The novelty of our regulatory framework is that simple procurement are conducted through the electronic public procurement system. For 2020, we have an increase in the competitiveness index to 2.27 “, said Jovetić.

In response to the question whether the new electronic public procurement system enables networking with databases important for timely prevention of conflicts of interest, such as the Central Register of Business Entities, Tax Administration, etc, Jovetić answered that networking of some databases is already envisaged by the Draft Strategy on Development of Public Procurement and Public-private Partnerships Systems.

“In our Action Plan for 2021 and 2022, we have a measure that directly refers to the further improvement of the electronic public procurement system and we have the funds to upgrade the system that connects institutions in the public procurement control. There are no technical obstacles in that segment so we can harmonise with other relevant institutions in the coming period”, concluded Jovetić.

Tanja Simićević, Head of the Public Procurement Office at Municipality of Budva, concluded that everything comes down to the responsibility of the contracting authority, recognition of conflicts of interest and possible actions by the contracting authority. She pointed out that under the new Law, the procedure is initiated by the declaration of absence of conflict of interest.

“The moment of signing the declaration is questionable. This declaration would play a more significant role and give a greater contribution if you already have a public procurement contract ready to be signed, when all those who participated in the procedure can sign the contract being familiar with the bidder, when we have a clean procedure, a declaration of absence of conflict of interest and the conclusion of a contract. I think that with preventive measures, that declaration would have a much bigger effect then, because I do not know which of all the persons involved in the entire process could sign before concluding the contract that it is not in a conflict of interest, but it is”, explained Simićević.

Jelena Perović, Director of the Agency for Prevention of Corruption explained that the Agency currently has two segments in which it deals with public procurement, and that is through whistleblower reports and through the financing of political parties and the election process.

“Out of 460 reports from the beginning of the Agency’s work until the first quarter of this year, 31 reports were related to public procurement processes. The largest number of reports referred to irregularities in the field of public procurement at the local level, 32% and 29% at the state level. In 19% of the reports, endangerment of the public interest was determined, while in the rest, the existence of irregularities was not found”, said Perović.

The Agency acted in 22 cases and 4 of them ended with recommendations, in 9 cases other competent bodies acted and 2 were positively ended. Because the identity of the whistleblower is protected all of these cases were not public.

Dragan Bojović, Vice President of the Anti-Corruption Committee in the Parliament of Montenegro, believes that it is very important to find a way to more effectively resolve conflicts of interest. He also shared doubts if the Agency for the Prevention of Corruption could be more effective.

“Maybe the Agency is in a certain sense overloaded with documentation, maybe the number of reports that are submitted is too large. This should be reduced and enable the people who work in the Agency to be more efficient, ie to concentrate on exposing corruption, and not on the administration. I do not know how good it would be to transfer this problem exclusively to the Agency. The institutions in charge for controlling public procurement should be better networked, and the data should be centralised”, said Bojović.

This conference was organised within the project “For the Better Use of Public Money!” implemented by Institute Alternative and funded by the Embassy of the Kingdom of the Netherlands. The expressed opinions and views do not necessarily reflect those of the Embassy of the Kingdom of the Netherlands.