The Commissioner for Information of Public Importance and Personal Data Protection has estimated in a letter addressed to the Ministry of Finance and Economy that certain provisions of the recently adopted Rulebook on the Manner of Keeping and Content of the Register of Public Contracts contravene the Constitution and the law.

The Commissioner has urged the Ministry to harmonize the contentious provisions with the law, since their implementation would jeopardize the public rights, which are based on the Law on Free Access to Information of Public Importance, and have other negative effects, as well.

In this regard the Commissioner, Rodoljub Sabic, has stated the following:

''The provisions of the Rulebook which govern the Register of contracts concluded by the state, its bodies and enterprises with private partners are an issue. Article 11 of the Rulebook stipulates that access to contracts and other documents from the collection of documents of the Register ''may only be granted to the individual who can demonstrate a legitimate interest to examine it'' and that access ''shall not be granted'' if it ''may significantly impede realization of economic interests of the public and private partner".

The Rulebook governs the matter which, pursuant to the Constitution (Article 51, paragraph 2), may only be regulated by a law, in addition the Rulebook regulates it in a manner which is in contravention of the provisions of the Law on Free Access to Information of Public Importance.

Pursuant to the Law on Free Access to Information of Public Importance there is a legal presumption of a legitimate public interest to know unless a public authority, in every concrete case, by referring to a statutory reason proves otherwise. An applicant is, therefore, not obliged to prove the existence of any special interest and the Rulebook is, by providing for such an obligation, in direct contravention of the law.

Reasons for potential limitation of the right to access are regulated under the Law on Free Access to Information of Public Importance as well. Neither implies an automatic ban on access, but requires the so called public interest test to be conducted in all cases. This legal mechanism ensures the protection of interest of public entities, as well. It is not legally sustainable to provide for, in particular by a secondary piece of legislation, some additional reasons, other than the ones provided for by the Law, to limit public rights. In our particular case, further limitation of public rights is controversial from both the legal aspect and from the aspect of potential contribution of the public to the fight against corruption.

It should be particularly taken into account that the Law on Public Private Partnership, based on which the Rulebook has been passed, explicitly stipulates that the Register shall be public and that the regulation of conditions, manner and procedure of concluding public contracts, inter alia, shall be based on the principles of protection of public interest and transparency.

I have asked the Ministry to harmonize the contentious provisions with the law and I expect it to do so. The Commissioner shall in practice, while deliberating complaints, in all cases, give priority to the provisions of the Law and base his decisions, which are binding under the law, exclusively on them. If required, due to reasons in connection with general legal security, he shall petition the Constitutional Court to assess the constitutionality and legality of the contentious provisions of the Rulebook."