No. 021-01-462/2017-02 Date: 4 July 2018

Acting within the framework of legally prescribed competencies [1] to monitor the implementation of the laws concerning the prohibition of discrimination and recommend measures for the achievement of equality to public authority bodies and other persons, the Commissioner for the Protection of Equality sends to Public Utility Company “Komunalac“ Indjija

RECOMMENDATION ON MEASURES FOR THE ACHIEVEMENT OF EQUALITY

1. It is necessary that Public Utility Company “Komunalac” Indjija takes all measures and activities under its competence to imrpove the provision of the utility service – maintenance of clean public areas (snow plowing) on local roads and streets outside the centre of Indjija Municipality.
2. Public Utility Company “Komunalac” Indjija will inform the the Commissioner for the Protection of Equality on planned measures in order to implement this recommendation, within 30 days from the date of receipt of the recommendation on the measures for the achievement of equality.

No appeal or any other legal remedy is allowed against this recommendation on measures for the achievement of equality in accordance with the law.

Statement of reasons

Male and female citizens who live outside the centre of Indjija Municipality, that is, in Ratko Pavlović street, which is a third priority street, addressed the Commissioner for the Protection of Equality. Namely, the residents of this street believe that they have been placed in a more unfavourable position than the residents living in the centre of Indjija Municipality on the basis of the place of residence, because Public Utility Company “Komunalac” Indjija (hereinafter: PUC “Komunalac” Indjija) does not plow snow in the street in which they live in the winter, which makes them feel like “second-class citizens”. Also, older people live in the aforementioned street, which is why the lack of maintenance of this and other third priority streets in the winter additionally aggravates their position, as well as the position of persons with disabilities, children, pregnant women and citizens with movement difficulties.

The Constitution of the Republic of Serbia[2] prohibits any discrimination, directly or indirectly, on any ground, and in particular on the grounds of race, gender, nationality, social origin, birth, religion, political or other belief, property, culture, language, age, mental or physical disability.

The constitutional prohibition of discrimination is elaborated in more detail in the Law on the Prohibition of Discrimination which in Article 2(1)(1) prescribes that discrimination and discriminatory treatment mean any unwarranted discrimination or unequal treatment, that is to say, omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin colour, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics.

Article 33 of this Law prescribes that the Commissioner is, inter alia, authorised to recommend measures for the achievement of equality to public administration bodies and other persons.^[3] Article 17(1) of Law on the Prohibition of Discrimination prescribes that discrimination in the provision of public services exits if a legal or physical entity, in the framework of its/his/her activities or profession, refuses to provide a service on the grounds of a personal characteristic of an individual or a group of persons, or if the said entity, in order to provide the service in question, requires the fulfilment of some condition that is not required of other individuals or a group of persons, or if the said entity unwarrantedly gives priority to another individual or a group of persons when it comes to providing a service.

The Law on Public Enterprises[4] prescibes that activities of general interest are utility activities, as well as other activities determined by the law as activities of general interest. Article 3(1) of this Law prescirbes that a public enterprise is an enterprise which performs an activity of general interest, which is founded by the Republic of Serbia, Autonomous Province or Local Self-Government Unit, whereas an objective of the incorporation of a public company is, inter alia, ensuring permanent execution of activities of general interest and regular satisfaction of the needs of product and service beneficiaries[5].

The Law on Utility Activities[6] prescribes that utility activities are activities of providing utility services that are relevant for the fulfillment of the needs of physical and legal entities, for whom the local self-government unit is obliged to ensure adequate quality, scope, availability and continuity, as well as supervision of their execution. Article 2(2) of this Law stipulates that utility activities are activities of general interest which, inter alia, include maintenance of streets and roads and maintenance of clean public areas, whreas Article 2(4) stipulates, inter alia, that the utility activities referred to in paragraph 3, items 11-13 of this Law are activities of general economic interest in terms of regulations on consumer protection. Furthermore, Article 14 of the Law on Utility Activities prescribes that the performer of utility activities is obliged to organise their work and business in a way that they provide, inter alia: permanent and unhindered provision of utility services to beneficiaries under conditions and in a manner regulated by law, regulations and standards passed on the basis of the law; prescribed or contracted scope and quality of utility services, which implies timeliness, safety of beneficiaries in obtaining services and health and hygienic compliance according to positive regulations. The performer of utility activities can not deprive the beneficiary of the utlitiy activity except in the cases prescribed by Article 19 of the relevant law, that is, unless the beneficiary: 1) connects to the utility network without previously obtained approval; 2) use a service contrary to regulations; 3) interferes with other beneficiaries of services on no grounds; 4) does not pay for the utility service within the set deadline; and 5) uses the utility service for non-asigned purpose at the time of provision, with the restriction of consumption (reduction), which the beneficiary is timely notified about.

Article 749 of the Law on Contracts and Torts[7] prescribes that by a contract of order the person accepting the order assumes the obligation to the orderer to undertake specific transactions for his account, and at the same time the person accepting an order is authorised to undertake such transactions. Article 751 of the same Law prescribes that the a person accepting an order is obliged to perform the order in conformity with instructions received, and with the care of a good businessman, or head of household, while remaining within the limits of the order and, generally, taking care of the orderer’s interests which shall serve as his guidelines, whereas Article 752 prescribes that a person accepting an order may depart from the order and instructions accepted only in agreement with the orderer, and should it be impossible, due to shortage of time or some other reason, to demand the orderer’s consent, he may depart from the order and instructions only if, assessing all the circumstances, he is able to reasonably conclude that this is required in the interests of the orderer. Should the person accepting the order exceed the limits of the order or depart from the instructions received, he shall not be considered as a person accepting an order, but as a manager without order, unless the orderer subsequently approve what was done by him.

Article 5(24) of the Law on Consumer Protection[8] prescribes that a service of general economic interest means a service whose quality, conditions of provision or price are fixed or controlled by state bodies or other holders of a public authorisation, particularly due to high value of initial investments, limited resoureces necessary for its provision, sustainable development, social solidarity and the need for balanced regional development, with the goal of satisfying the common social interest, in particular electonic communication services, distribution and public electricity supply, gas distribution and supply, heat supply and distribution, drinking water supply, drainage and purification of atmospheric and wastewater, transport of passengers in public transportation, postal services, maintenance of cleanliness, disposal of municipal waste, management and maintenance of cemeteries, funeral services, maintenance of clean public areas, maintenance of public green areas and conducting smelting jobs Article 83 of this Law prescribes that the consumer has the right to be regularly and continuously supplied with services of general economic interest of an appropriate quality at an affordable price in accordance with special regulations, and that the trader providing a serviceof general economic interest is, inter alia, obliged to maintain the quality of the service in accordance with the law, special regulations and professional rules and not to dscriminate against consumers. The treader, in terms of Article 5(2) of the Law on Consumer Protection means any natural or legal person who is acting on the market for purposes of their business or other commercial purposes, inclding other persons who do business in his name or for his account.

Article 39(1) of the Decision on general roads and streets in Indjija Municipality prescribes that, in terms of this Decision, the maintenance of municipal roads and streets implies works which ensure unhindered and safe traffic, preserve and improve the usability of municipal roads and streets. Works related to the regular maintenance of the municipal road and street in the sense of Article 41(1)(13) of the said Decision, inter alia, imply works on the examination, determination and assessment of the condition of the municipal road and street, cleaning of road surfaces and other elements on the municipal road and street within the boundaries of the land stretch, mowing of grass and organising green areas on the municipal road and the street in the land stretch of the municipal road outside the settlement, as well as cleaning snow and ice from the the municipal road and street and road surfaces at bus stops and parkings, as well as curbs and gutters.

After analysing the relevant legal framework, the Commissioner for the Protection of Equality first stated that, in terms of the Law on Utility Activities, utility activities are defined as activities of general interest whose content is reflected in the provision of the utility services important for meeting the needs of natural and legal persons, in which case the local self-government unit is obliged to create conditions for ensuring the appropriate quality, scope, availability and continuity of the performance of these services. The Commissioner for the Protection of Equality points out that, in a specific case, this also concerns activities of general economic interest which, in accordance with Article 2(4) of the Law on Utility Activities, undergo regulations on consumer protection. In this regard, the Law on Consumer Protection prescribes that a service of general economic interest is a service whose quality, conditions of provision or price is regulated or controlled by a state body or other holders of public authority, especially because of the high initial investment values, limitation of resources necessary for its provision, sustainable development, social solidarity and the need for balanced regional development, for purpose of meeting the general social interest, in particular electronic communications services, distribution and public electricity supply, gas distribution and supply, heat distribution and supply, drinking water supply, drainage and treatment of atmospheric and wastewater, transport of passengers in public transport, postal services, maintenance of cleanliness, disposal of municipal waste, management and maintenance of cemeteries, funeral services, maintenance of clean public areas, maintenance of public green areas and the performance of smelting jobs. The Commissioner also points to Article 83 of the same Law which stipulates that, within the framework of access to services of general economic interest, the consumer has the right to regular and continuous supply of services of general economic interest of the appropriate quality at a fair price in accordance with special regulations, and that the trader providing a service of general economic interest is, inter alia, obliged to maintain the quality of the service in accordance with the law, special regulations and professional rules and not to discriminate against consumers. The trader in terms of Article 5(1)(2) of the Law on Consumer Protection means a legal or natural person who appears on the market as part of their business activity or for other commercial purposes, including other persons acting on his behalf or for his account.

For the purpose of collecting information, the Commissioner for the Protection of Equality addressed Public Utility Company “Komunalac” Indjija. PUC “Komunalac” Indjija replied that this company never plowed snow near the house located in Ratko Pavlović Street in Indjija and that snow and ice plowing is regulated by municipal decisions which apply to all citizens equally. It is further stated that Article 107 of the Decision on utility order, inter alia, prescribes  that all owners or users of residential, business or other premises are obliged to regularly clean snow and ice in front of and directly around their facilities, to the edge of the pavement with road surface or public parking lots and to pile it until disposal, which will be performed by an authorised company or entrepreneur, and that, in another case, disposal will be done by another person, at the expense of the service provider.

Article 105 of the Decision on utility order[9] prescribes that the disposal of snow and ice in traffic area (from sidewalks and road surfaces) is carried out in accordance with the Winter Service Operation Program issued by the Construction Directorate of Indjija Municipality no later than 15 October of the current year for the program period. Article 106 of this Decision prescribes that the Operation Program contains: an overview of activities of public utility companies participating in the implementation of the Program; schedule of workers’ shifts who will dispose snow and ice; involvement of workers and machinery in the disposal of snow and ice per degree of readiness; list of roads according to the priority of snow and ice disposal from these surfaces, prevention of the formation of ice and spreading of appropriate material; location for snow and ice disposal and method of maintenance of the location; the number and type of mechanical and other devices, their purpose and schedule of use, and necessary financial resources for the operation of the winter service.

In view of the above stated, the Commissioner for the Protection of Equality asked Public Utility Company “Komunalac” Indjija to clarify who maintains clean local roads and streets in Indjija Municipality during the winter period, and whether the maintenance of the part of Indjija in which Ratko Pavlović street is located is under the competence of this company, as well as to state whose responsibility it is to dispose snow and ice from the edge of the pavement with road surface, having in mind Article 107 of the Decision on the utility order.

According to Public Utility Company “Komunalac” Indjija, in accordance with Article 3 of the Decision on municipal roads and streets in Indjija Municipality, the activity of managing, protection and maintaining municipal roads and streets is performed by the Construction Directorate of Indjija Municipality PC Indjija, which in the meantime changed its name to PC “Indjija put”. Public Utility Company “Komunalac” Indjija has taken on the obligation to plow snow from local roads and streets every year from 15 November to 31 March, starting from November 2013, based on a public procurement contract concluded by this company with PC “Indjija put”. According to the contract, the cleaning of local roads and streets in the winter period is carried out in accordance with the Winter Service Operation Program adopted by PC “Indjija put” according to which third priority streets are cleaned 72 hours after cessation of precipitation, “if needed”. Since Ratko Pavlovic street falls into third priority streets of Indjija Municipality and Public Utility Company “Komunalac” Indjija has only undertaken the obligation to clean surfaces of local roads and not public areas outside road surfaces. On the basis of the Public Procurement Contract, it is obliged to maintain local roads and streets in accordance with the schedule set out in the Winter Service Operation Program, that is, it has no right to change the Operation Program nor can it deviate from it without prior consent. PUC “Komunalac” Indjija stated in a letter that Ratko Pavlović street was cleaned in accordance with priorities defined in the Winter Service Operation Program.

According to the Public Procurement Service Contract –winter service for winter 2017-2018, number 404-52/2017-8 dated 9 November 2017, concluded between Public Company for Road and Parking Management “Indjija put” Indjija (contracting authority) and Public Utility Company “Komunalac” (service provider), it was determined that the subject of the contract is the provision of services – maintenance of local roads and streets in Indjija Municipality with the material (salt and “rizla” material) provided by the contracting authority. In accordance with the Agreement on services that are the subject of this Contract, the provider is obliged to do everything in accordance with applicable laws and by-laws; adopted winter service operation program; applicable technical regulations, norms and standards; generally accepted professional rules and the standard of a good businessman; instructions of the contracting authority, and according to the provisions of this contract (Article 2 of the Contract). The service provider is obliged to maintain local roads and streets of Indjija Municipality according to the schedule defined in the Winter Service Operation Program, which is an integral part of the contract, and it is obliged to regularly visit roads and streets whose circulation it maintains and, based on the situation on the site, act with appropriate machinery and labour (Article 3 of the Contract); the service provider does not have the right to change the Winter Service Operation Program nor can it deviate without previous written consent of the contracting authority (Article 4 of the Contract); among other contractual obligations, the service provider is obliged to perform services provided by the stated contract professionally, in good quality and in a timely manner, with his own machinery and necessary labour force for this purpose; ensure good quality management and performance of works for the duration of operation of the winter service and strictly adhere to the Winter Service Operation Plan in Indjija Municipality (Article 8 of the Contract). Article 10 of the Public Procurement Contract stipulates that the service provider is obliged to compile and keep winter service documentation and that the obligatory documentation are: winter service logbook, shift logbook , billing sheet of the construction book, travel order for the operation of machines and means of transportation, and records on work and shifts of workers, whereas Article 12 of the Contract stipulates that all facts and circumstances that arise during the execution of works, as well as records on work and shifts, description of routes, time of commencement and end of works should be entered in the winter service logbook.

By inspecting a copy of the winter service logbook for 2015/20 and 2016/2017, that is, weather conditions and annexes on completed works of the winter service for the stated period, it was determined that the plowing of snow from third priority streets was not recorded in winter season 2015/2016, whereas in season 2016/2017, it was recorded that snow was cleaned only on one day (on 25 January 2017), that is, on 10 January 2017 was recorded that the entire Indjija Municipality was cleaned “on several occasions”. By inspecting the weather report logbook, it was determined that the snowfall was recorded in winter season 2015/2016, as well as in season 2016/2017, which ended on 18 January 2017. Article 2 of the Public Procurement Contract –winter service for winter period 2017-2018 stipulates that PUC “Komunalac” Indjija, as a service provider, is obliged to perform services that are the subject of this contract in accordance with applicable laws and by-laws; the adopted winter service program; generally accepted professional rules and standard of a good businessman. The Commissioner for the Protection of Equality states that, by inspecting the stated documentation, it may be concluded that first and second priority streets were cleaned on all days when snowfall was recorded, whose number was considerable, according to the records from the winter service logbook, both in winter season 2015/2016 and in winter season 2016/2017, whereas this is not the case with third priority streets.

Namely, it is indisputable that the maintenance of roads in the winter period and the disposal of snow and ice represent a responsible job which involves the engagement of resources, that is, labour and materials, which is why the rational behaviour of the contractor or the authorised road maintenance companies is necessary. However, the Commissioner believes that, in a specific case, rationalisation of expenditures is achieved by prescribing an obligation to the service provider, in this particular case, to PUC “Komunalac” Indjija, to clean third priority streets within 72 hours from the cessation of precipitation, which is why failure to act in accordance with the undertaken obligation, apart from representing the non-fulfilment of a contractual obligation, also represents an unjustified denial of rights to a particular group of persons to the equal access to public services based on their place of residence. On the other hand, by inspecting the price list of PUC “Komunalac” Indjija, published on the official website of this company, the Commissioner concludes that all the citizens living in Indjija Municipality pay for utility services according to the unique price list of this company. Although, in the specific case, the prescription of the obligation to clean third priority streets is not within the competence of PUC “Komunalac” Indjija but within the competence of PC “Indjija put”, the Commissioner indicates that, a comparative analysis of the winter road and street maintenance program has shown that most public companies in other cities of the Republic of Serbia have third priority streets cleaned within 24 hours, or 48 hours after the cessation of precipitation, which is why it considers that there is no justified reason why cleaning of third priority streets after 72 hours, as stipulated by the Winter Service Operation Program, is not enforced in line with the established Operation Program.

The Commissioner for the Protection of Equality believes that, according to the submitted documentation, and in terms of the maintenance of third priority streets, which include Ratko Pavlović street, PUC “Komunalac” Indjija did not act in accordance with the Winter Service Operation Plan, and put the citizens who live in that street in an unjustified and worse position in relation to the citizens living in the city centre. In this way, residents of Ratko Pavlović street in Indjija which, according to the priorities for maintaining municipal roads and streets, falls into the category of third priority streets, are unjustly deprived of the provision of utility services – maintaining clean public areas, in relation to Indjija residents living in first and second priority streets, based on their personal characteristic – the place of residence.

Also, the Commissioner for the Protection of Equality points out that, during the procedures she, also came to the conclusion that the residents of Ratko Pavlović street in Indjija are predominantly older persons and she indicates that the Law on the Prohibition of Discrimination prescribes that the elderly have the right to dignified living conditions without discrimination, as well as the right to equal access and protection against neglect and harassment in the use of health and other public services. Also, the Commissioner points out that the maintenance of clean public areas (snow and ice plowing) and maintenance of streets in the winter period is equally important and that it also equally affects the position of persons with disabilities, children, pregnant women, as well as other citizens with movement difficulties.

In this regard, the Commissioner points out that in conditions where satisfying some of the basic needs in life is possible only through companies that perform utility or similar activities of general interest, proper performance of their activities is of great general interest for all male and female citizens. Therefore, any failure to comply with regulations, in particular suspension or irregular provision of services, may have serious consequences, especially for older beneficiaries who are at greater risk of injuries if snow and ice are not cleaned from the streets, as well as for persons with disabilities, children, pregnant women and citizens with movement difficulties. In view of the above stated, the Commissioner believes that there is no justification why residents of the streets on the periphery of the town would not enjoy the rights enjoyed by the residents of the streets in the centre, which results in a feeling that they are less important only because of their place of residence.

Considering all these circumstances, the Commissioner for the Protection of Equality sends a recommendation to Public Utility Company “Komunalac” Indjija in accordance with Article 33(9) of the Law on the Prohibition of Discrimination, with the obligation to inform it of the measures undertaken in order to implement this recommendation, within 30 days from the date of receipt of the recommendation on measures for the achievement of equality.

[1] Law on the Prohibition of Discrimination (“Official Gazette of the RS“, No. 22/09), Art. 33(1)(9)

[2] Constitution of the Republic of Serbia (“Official Gazette of the RS“, No. 98/06)

[3] Law on the Prohibition of Discrimination, Article 33.

[4] “Official Gazette of the RS“, No. 15/16

[5] “Official Gazette of the RS“, No. 15/16, Article 4(1)(1).

[6] “Official Gazette of the RS“, No. 88/11 and 104/16

[7] “Official Journal of the SFRY“, No. 29/78,39/85,45/89 – decision of the CCY and 57/89, “Official Gazette of the SRY“, No. 31/93 and “Official Journal of Serbia and Montenegro“, No. 1/03 – Constitutional Charter

[8] “Official Gazette of the RS“, No. 62/14 and 6/16 – state law

[9] “Official Journal of Indjija Municipality“, No. 3/13