The Croatian Parliament will soon debate the Draft Proposal of the Act on Better Regulation Policy Instruments. This law presents an opportunity to improve the quality of legislation and other regulations, as well as the public consultation process. It is, in fact, a “law on laws” and therefore of particular importance for the rule of law in Croatia.

It should ensure a clear and transparent procedure for drafting regulations, based on impact analysis and the assessment of the intended purpose and objective of the regulation.

The Ombudswoman regularly highlights this in her annual reports to the Croatian Parliament, as well as in opinions on draft regulations during public consultations. She does so from the perspective of an institution that protects and promotes the rule of law and the right to good governance, and as an institution that actively participates in a large number of public consultations, thereby gaining insight into common issues in the legislative process in Croatia.

For this reason, she participated in the public consultation conducted from 27 July to 26 August 2023 and submitted proposals aimed at achieving the purpose of this law, believing that the Draft Proposal requires further refinement, as detailed below.

Namely, the Ombudswoman believes that public consultations should be conducted with genuine openness to amending the draft regulation under consultation, rather than being conducted pro forma with minimal changes to the proposal.

Well-founded and reasoned arguments raised during consultations should be taken into account more than has been the case so far, enabling contributors to see the value of their participation. If a well-argued proposal is not accepted, the reasons should be explained to those who submitted it, clarifying why it was not accepted or only acknowledged.

It is also important that proposed legal provisions are explained with reasoning beyond mere repetition of the provision itself, both for understanding the rationale behind the proposed change and for subsequent interpretation and implementation. Finally, public consultations should be held during periods and for durations that genuinely allow public participation.

The Timing of Public Consultation Affects Its Quality

The public consultation on the Draft Proposal of this law was held during the summer holiday period, which may explain why only 40 comments were received. The choice of timing contradicts the very purpose of the Draft Proposal—to encourage public participation in such processes.

The Information Commissioner has recommended that if consultation during holiday periods (July, August) is unavoidable, it should last longer than 30 days and be extended into September, to provide the public with a real opportunity to submit opinions and proposals. In this case, no explanation was provided as to why the consultation was opened during a period when reduced public participation was foreseeable.

Unfortunately, this is not an isolated occurrence—consultations on various regulations are frequently launched during the summer months and holiday periods (Christmas and New Year). For example, the Ministry of Justice and Public Administration alone opened public consultations on 25 legislative, sub-legislative, and other acts from June to August this year.

Such practices should be avoided, and public consultations should be held at times when as many interested individuals as possible can participate with proposals and comments. This would fulfil the purpose of the process—to improve the quality of regulations and public services by involving more stakeholders. These include citizens who use certain rights or services, employees of relevant systems, legal entities such as professional organizations or NGOs, and any other interested individuals or groups.

Duration of Consultation

The Draft Proposal stipulates that public consultation should generally last for 30 days, while the current Act on the Assessment of the Effects of Regulations prescribes a minimum duration of 30 days. The new formulation lacks clarity regarding the minimum consultation period and deviates from the standards achieved so far in public consultation procedures.

Therefore, it is necessary to explicitly require that public consultation must last at least 30 days, except in prescribed exceptional cases. On the positive side, these exceptions are clearly defined, which is particularly important given that shorter consultations have become increasingly common.

According to the 2022 Annual Report of the Information Commissioner, the average duration of public consultations is 19 days, especially at the local level. Thus, the Ombudswoman proposed an additional provision granting the Government’s Office for Legislation the authority to require the competent body to extend the duration of public consultation (to no less than 30 days in total) if it determines that a shorter period was unjustifiably set.

Responses to Comments in Public Consultations Must Be Reasoned

In 2022, there was a significant increase in the number of public comments submitted during consultations that received no response in the final report. As many as 22% of comments went unanswered, compared to 8% the previous year.

This creates the impression that public consultations are merely a formality and discourages participation, even though public input can contribute to the quality of legislation. Therefore, one of the recommendations in the 2022 Annual Report of the Ombudswoman is that proposers provide reasoned responses to a greater number of comments submitted during consultations.

Consistent responses would undoubtedly contribute to transparency and provide insight into the rationale (ratio legis) behind the proposed law. Often, proposals are dismissed with the explanation that a directive requires it or that it is the position of the working group. However, a working group’s agreement cannot serve as a sufficient reason for rejecting a proposal—if so, why submit the draft for public consultation at all?

It is also not sufficient to state that a provision is aligned with a directive, as directives generally do not regulate matters in detail, but rather leave it to each Member State to achieve the directive’s objective within its legal system. Directives set minimum standards, and Member States may go beyond those standards.

The continued use of the term “acknowledged” (“primljeno na znanje”) should be reconsidered, as it allows the competent body to respond without providing further justification. The Ombudswoman therefore recommends using only “accepted,” “partially accepted,” or “not accepted,” with a clear explanation of the reasons.

It should also be explicitly stated that the competent body must provide a reasoned explanation for all comments and proposals not fully or partially accepted following the consultation. This is supported by the Guidelines for the Application of the Code of Consultation with the Interested Public in the Adoption of Laws, Other Regulations and Acts, which state: “If this phase of the consultation process is conducted openly and transparently, it sends a positive message to all those who took the time to participate, showing that their effort is acknowledged. Otherwise, the entire process may be undermined, and future participation discouraged.”

Proposed Legal Provisions Must Be Well-Reasoned

Based on previous experience in public consultations, the Ombudswoman emphasized that the explanations of draft legal provisions are mostly reduced to paraphrasing. This undermines their purpose and leaves room for speculation about the scope and/or objective of the provision—during consultation, the legislative procedure, and later during implementation after the regulation enters into force.

Quality explanations are particularly important for teleological interpretation, i.e. determining the purpose of the legal norm. While the legal norm itself should primarily be clear and precise, the proposer’s reasoning during the drafting process is useful not only when there is room for varying interpretations, but also in constitutional and legal conformity assessments.

In most previous public consultations, the Ombudswoman pointed out that proposers failed to assess the direct impact of the draft law on human rights and did not explain how such a conclusion was reached. Therefore, civil servants and state officials need to be educated on human rights as an important and dynamic field, and overall capacities should be strengthened for monitoring the impact of legislative initiatives on the exercise of human rights. This was also one of the recommendations in the Ombudswoman’s annual reports for 2019, 2020, and 2021.

Finally, state administration bodies responsible for drafting laws should regularly update information on planned legislative amendments on their websites, promptly publish reports on completed public consultations, and prepare and publish (unofficial) consolidated versions of laws. Publishing consolidated laws is one way to ensure that citizens are informed of their rights and obligations.

All comments of the Ombudswoman on the Draft Proposal of the Act on Better Regulation Policy Instruments are available [here].