Controversial amendments to Serbian expropriation law – what is the meaning of public interest

On November 26, 2021, the National Assembly adopted the amendments to the Expropriation Law (“Modifications“), legislation which dates from 1995 and has not been significantly updated since 2009.

A number of public intellectuals, NGOs and opposition parties strongly criticized the amendments. The most important changes are described below.

Concept of public interest

By far the most controversial provision of the Amendments is the broadening of the notion of public interest. According to the Serbian Constitution, private property can only be expropriated or limited in the public interest determined in accordance with the law and in return for compensation which cannot be less than market value. The notion of public interest is defined in Article 20 of the Expropriation Law and has an interesting history.

Originally, “general interest” included the development of facilities in a number of sectors of public interest: education, health, social protection, culture, water management, sports, transport, energy infrastructure and municipalities, facilities for state and territorial autonomy and local autonomy. -government, facilities for the defense of the country, mineral resources, environmental protection, etc. In 2009, as part of the negotiations of the joint venture agreement between the Republic of Serbia and FIAT, the scope of the public interest was widened to include the expropriation of real estate which, according to a company agreement Joint Undertaking concluded by the Republic of Serbia, are necessary to enable the Republic of Serbia to make its in-kind contribution to the Joint Undertaking. In addition, a series of special laws (for example the Law on the Belgrade Waterfront Project, the Law on the Extension of the Turk Stream Gas Pipeline through Serbia and the Law on Special Procedures for the Development of Infrastructure Projects of importance, etc.) have further broadened the scope of the public interest to allow the expropriation of real estate necessary for the development of these specific (types of) projects.

The amendments aim to exclude the need for future special laws, extending the notion of “public interest” to “projects for the development of buildings of particular importance or importance for the Republic of Serbia which are implemented on the basis of an international treaty to which the Republic of Serbia is a party ”. The concept of “building development projects of (special) importance for the Republic of Serbia” is not defined in the Expropriation Law, as amended. According to the Planning and Construction Law, it is the executive, i.e. the Government of Serbia, which has the power to designate “building development projects of importance to the Republic of Serbia”, without any other criteria being provided for in the law. .

It remains to be seen whether the extension of the notion of public interest will be constitutionally challenged and whether it will survive such a challenge.

Compensation for illegal constructions

According to the modifications, if illegal buildings for which the legalization process is still underway are subject to expropriation, the owner will be compensated for the construction value of the building. As mentioned, the Serbian Constitution requires that compensation for expropriation be at market value. The market value can, in principle, be higher than the value of the construction. However, illegal constructions are formally off the market until legalization is positively resolved, so it is doubtful that in case of illegal construction, the market value can be determined as anything other than the value of the construction.

Appointment of temporary representatives

Most of the changes introduced by the Amendments aim to shorten the deadlines and remove the blockages in the expropriation procedure. In this regard, the most important change is the introduction of the possibility of appointing a temporary representative in cases where the registered owner of the property to be expropriated has died and the homologation procedure has not been carried out. This has so far been one of the most common obstacles to the efficient conduct of the expropriation proceedings, while the general provision on the temporary representative in the Law on Administrative Procedure and the provision on the temporary guardian of family law was not sufficiently clear when applied to expropriation situations. .

Maximum duration of extended temporary occupancy

The period of temporary occupation, allowing the beneficiary of the expropriation to temporarily occupy an accessory land necessary for the construction of facilities for which the public utility has been declared, can now be extended for an additional period of three years to the request of the beneficiary of the expropriation.

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