The Commissioner for Information of Public Importance and Personal Data Protection submitted his opinion and motion to amend the Draft Law on Investment to four committees of the National Assembly.

The Commissioner also turned to the Ombudsman with the motion to amend the draft.

Stating that the Draft Law on Investment, both regarding free access to information and personal data protection, contains a number of provisions that are impermissibly vague, confusing, contradictory and unconstitutional, the adoption of which would seriously threaten the existing and the guaranteed level of rights, Commissioner Rodoljub Sabic added the following:

"The proponent did not consult the Commissioner, although by the Rules of Procedure of the Government he was required to do so, nor did he establish any cooperation with him. I had absolutely no access to the text of the Draft Law on Investment until it was published on the website of the National Assembly. Only then could I know its contents and address the competent authorities in regard to this issue with a motion to amend the draft.

In this context, certainly the most intriguing is Article 24 of the draft which stipulates the following: "the data on investments, as well as information which public authorities acquired in the course of negotiations and legal proceedings are subject to provisions of the law regulating the information of public importance, provided that the request for issuing information regarding investments is handled by the Government."

It, thus, introduces, under the guise of alleged "compliance with the Law on Free Access to Information of Public Importance", a new provision stipulating that the Government decides on all requests for access to information on investments.

Such a provision is contrary to the Law on Free Access to Information of Public Importance, which explicitly stipulates the following in Article 8: "The rights provided for in this Law may, in exceptional circumstances, be subject to limitations set out in this Law...". In addition, this provision is legally and factually practically unenforceable.

Namely, given the number of public authorities instead of which the government would decide on access to information regarding investments (the Economic Council, the National Agency for Regional Development, ministries, autonomous province authorities, local government authorities, PUC, etc.) it is obvious that, even under the assumption that the currently non-existent rules of procedure are established, the Government will not be able to adequately process these requests, which is why the exercise of the right of the requesters will inevitably be difficult or impossible.

It is incomprehensible that, although it is a completely new, exclusive provision, the explanation of the draft contains no details regarding this provision, only paraphrased article. Therefore, the obvious question is - what is the reason for proposing this legally and factually extremely controversial provision? The answer that arises is – the intent to deny the possibility of an appeal to the Commissioner, since under the provisions of Article 22 of the Law on Free Access to Information an appeal cannot be filed against Government decisions.

What is the purpose of this is another matter, which should of course be answered by the proponent. And it is not necessary to point out that proposing such provisions is, among other things, also in complete contradiction with the commitments expressed in all strategic documents of the Government and the Assembly, in particular those relating to the fight against corruption.

Also from the perspective of personal data protection it is necessary to amend the contents of the draft, since, contrary to the explicit provision of Article 42 of the Constitution of the Republic of Serbia which stipulates that data processing can be regulated only by a law, and not a bylaw, the Draft sets out a number of circumstances in which it would be regulated by the Minister in a bylaw."