In this parliamentary convocation, the sitting of the Committee on Constitutional and Legislative Issues with a proposal for authentic interpretation of the provisions of the Law on Consumer Protection, the Law on the Protection of Financial Service Consumers and the Law on Contracts and Torts was scheduled for July, and cancelled at the initiative of Serbian President Aleksandar Vučić. Although the proposal that the interpretation of the laws is necessary was signed by three MPs of the Serbian Progressive Party, only when the President reacted did the Minister of Justice respond and say that the problem of disputes between banks and clients would be resolved by amending the Law on Civil Procedure. Earlier, in February, the Assembly adopted an authentic interpretation of the Law on Prevention of Corruption, as it was necessary to clarify to the public who is a public official and who is not. Why such frequent attempts at authentic interpretation of the laws, how does it differ from amendments to the laws and does it mean that the laws adopted by the Assembly are bad? The lawyer and former Commissioner for Information of Public importance, Rodoljub Šabić spoke for the Open Parliament. 

What is an authentic interpretation and how common is this instrument in comparative law?

An authentic interpretation is a constitutional legal instrument, a mechanism by which the Parliament, i.e. the authority that passed the law, clarifies the meaning of a certain norm of the law. As a rule, this happens in situations when a new law appears which, for example, radically changes a relationship, or in practice we have a previously unknown institute, or a relationship. It causes certain dilemmas in the subjects to which this law refers or who should apply it, regarding its true meaning, possible consequences and the like. Consequently, those who apply it, most often courts, for example, in case of conflict of views of several courts of the same rank, could turn to the Parliament and ask for a definite explanation of the true meaning of that norm. It is a rarely used instrument. It means per se that the law is not exactly perfect since there is a need for a subsequent interpretation. If subjects, otherwise qualified to apply it, such as courts or administrative bodies, have dilemmas – it means that the law has not been articulated in an ideal way. As a rule, an authentic interpretation should appear soon after the law enters into force, as dilemmas and possible ambiguities arise at that time. Naturally, an authentic interpretation can also be subject to serious abuse. As it happens, we have faced one such case recently in Serbia, where an authentic interpretation of three laws was required, resulting from allegedly spontaneous reactions of three MPs of the same party. An interpretation of the norms was sought, all of which referred to one specific relationship, namely the relationship between the lender and the borrower in the banking sphere, where a dispute arose regarding the collection of secondary, ancillary services provided by the bank.  Since citizens began to protest because of bank fees that were actually much higher than the value of the service provided, the courts began to rule in favour of citizens. Obviously, it was not suitable for banks and, in all appearances, the demand for an authentic interpretation can be explained by an unprincipled lobby or in some other way. So, MPs allegedly came up with the idea on their own to provide a binding order for the courts in the form of an authentic interpretation.

For what reason did they resort exactly to an authentic interpretation in relation to the Law that was in force in previous years when there were the most verdicts in favour of citizens in disputes against banks?

When a law needs to be changed, it implies a certain procedure that does not differ significantly from the procedure of authentic interpretation, but which, by the logic of things, has a different weft. Why would you change now the Law on Contracts and Torts, that has already been affirmed as a fundamental Law that has existed for forty or fifty years? Why would you change the provision of that Law if the practice has not shown any weakness so far? You have a provision the interpretation of which we are seeking. It goes something like this: paragraph 1 – The loan agreement must be made in written form, paragraph 2 – The loan agreement regulates the conditions for granting, using and repaying the loan. What’s there to interpret?  What judge does not understand what that means? And why did it suddenly become unclear to someone after 45 years. In fact, they wanted the Assembly to say in the form of an authentic interpretation: Yes, but if the Agreement does not say that, precisely this and that, binding instructions will be imposed on the court. Courts will be told how to rule, which is inadmissible. The court is independent in the system of division of power, no one can tell the court how it will judge. So this was simply not the norm that required an interpretation. It is a norm that is legally, logically and grammatically completely clear, there’s nothing to interpret. An attitude was sought in order to enable court decisions that will be different from those made by the court now.  

What is the relationship between the law and the authentic interpretation, in relation to the legal force and the enactment procedure?

The procedures are more or less similar according to the Rules of Procedure of the Assembly. However, as a rule, you are passing a law for the future, and the Constitution allows that only certain provisions of the law can have retroactive effect. An authentic interpretation is by definition retroactive. So the moment you say this norm does not mean what you meant, but something else – it supposes that since the beginning of the entry into force of the law “it has meant something else.” Do you understand what a source of legal uncertainty this is? In this situation, if it had been realised, if the President Vučić had not prevented it at the last minute, we would have had a situation where banks would not only not lose disputes anymore, but would be in a situation to demand fees from citizens who won disputes earlier. Again, although Vučić has now prevented this, it is quite certain that he initially stood behind the proposal of an authentic interpretation because it is simply unbelievable that his party’s MPs would try such an operation without the consent of the party leadership. The banks were so sure of the outcome, that they publicly spoke even before the interpretation was made, promising that they would keep their hands off of citizens. The Serbian Chamber of Commerce also reacted as if it had guarantees of what the authentic interpretation would look like. Manifestly, the President estimated at the last minute that it would pay off more politically to withdraw the proposal and to say “that everything is done in the best interest of citizens”.

How often is an authentic interpretation passed in Serbia and for what purposes?

We have been recently seeing this tendency in our country. Everywhere in the world it is a very rare institute that is used only when necessary, as it is a confirmation that some law is not good. We had an almost scandalous situation, the actor was also one of these three MPs who asked for the previously mentioned authentic interpretation. It was an authentic interpretation of the Law on Prevention of Corruption. At first, there was an interpretation that literally whittled away the Law, exempting officials, those who were obviously officials. It was so unbelievable that the public was confused, the media asked questions, and then the next day the MP (chairwoman of the Committee on Constitutional and Legislative Issues), who had asked for an authentic interpretation, appeared and silently corrected the interpretation. This is how the number of those officials who were exempted – decreased. In the afternoon of the same day, yet another correction appeared, and we had such a conundrum that even the proponents of the authentic interpretation did not understand who had been excluded… and serious damage has been done. By the way, the authentic interpretation must adhere to a strictly formal procedure, similar to the law-making procedure. Therefore, when a committee formulates the proposal for authentic interpretation, the Assembly makes a declaration. No president can change the meaning of what the committee has determined on its own initiative. What’s more, there was only one sitting of the committee. So the whole procedure was not followed. Even then, they disgraced that institute. Fortunately, this time, it did not happen again.