New Port of Durres/ Constitutional Court dismisses opposition lawsuit against investment project

2025-02-21 18:30:00, Aktualitet CNA

New Port of Durres/ Constitutional Court dismisses opposition lawsuit against

The Constitutional Court has today completed the review of the case requested against this institution by opposition members of Parliament, regarding the agreement for the strategic investment project "Marina & Yachts of Durrës".

In this case, the Court decided to dismiss the request by a majority vote. The Court specifies that the final decision will be announced with a reasoned decision within the legal deadlines provided for by the judicial procedures.

At the end of the review, the Constitutional Court dismissed the opposition's lawsuit against this investment project.

Full decision:

"On February 21, 2025, the Constitutional Court completed the review of the case with petitioners of no less than 1/5 of the deputies of the Assembly with the object:

1. Repeal of Law No. 79/2022 “On the approval of the framework agreement between the Council of Ministers of the Republic of Albania and Eagle Hills Real Estate Development, Albanian Seaports Development Company, sh.a., and NSHMI Development LLC regarding the strategic investment project “Durres Marina & Yachts”.

2. Repeal of DCM No. 861, dated 29.12.2021 “On the transfer to the real estate fund for the support of strategic investments, of state real estate for the development and implementation of the strategic investment project “Durres Marina and Yachts”, as amended by three other DCMs”.

Initially, the Court reiterated its position that it has jurisdiction to review the constitutionality of enacting laws, such as Law No. 79/2022, as long as the Court's jurisdiction is determined by the constitutional nature of the claims.

As regards the applicants' claims for the unconstitutionality of the four DCMs, against the relevant standards of constitutional jurisprudence, the Court, by majority vote, concluded that they (the DCMs) are individual acts and as such are not subject to constitutional jurisdiction pursuant to Article 131, paragraph 1 (c) of the Constitution.

The court assessed that the applicant is legitimate as a subject (ratione personae and ratione temporis) for all claims raised in the application regarding Law No. 79/2022.

Further, in assessing the content and constitutional nature of the specific claims (ratione materiae), the Court, by majority vote, assessed that the applicant's claims for the violation of:

· national identity and cultural heritage as a result of the development of the strategic project in the territory of the port of Durrës;

· Article 11/2 of the Constitution, due to the state's failure to protect this public property, by making it available to a private company (partially);

· the right to transparency due to: (i) failure to hold hearings with interest groups; (ii) failure to inform members of parliament about some parts of the contract; (iii) accelerated procedure in approving the law; (iv) uncertainties regarding the ultimate beneficial owner;

· Article 82/1 of the Constitution, because the draft law was not accompanied by a report justifying the financial expenses for its implementation;

· The Constitution, the SAA and the Visa Waiver Agreement between Albania and the EU, due to the creation of a golden passports type scheme;

· the principles of local autonomy, due to the fact that the Municipality of Durrës and the residents of that city will be deprived of the income that will come in the form of the infrastructure impact tax and the benefit of the legal quota for social housing,

will not be considered as long as the applicant has not managed to present constitutional arguments.

The Court also found that the applicant's claim for infringement of the freedom of economic activity, in terms of competition related to the principle of equality before the law, because the developer of the strategic project was selected without competition, concluded that it should not be considered, since the selection of the developer without competition is provided for in the international agreement between the Council of Ministers of the Republic of Albania and the United Arab Emirates, approved by Law No. 145/2020 and not by the law under review. Furthermore, the Court found that the competition between developers under the Law on Strategic Investments is carried out at the stage of obtaining the status of strategic investor.

The Court then proceeded to examine the merits of the following claims, alleging infringement of:

1. the constitutional principles of decentralization and local autonomy, due to the provision of Article 10.6 of the Framework Agreement approved by Law No. 79/2022 (subject of the request), which provides that the management of public spaces created by the implementation of the strategic project will be carried out by the strategic investor;

2. freedom of economic activity in terms of free competition linked to the principle of equality before the law, due to the exemption of the strategic investor from the obligation to pay the infrastructure impact tax, the obligation to contribute to social housing (Article 2/1 and 10.12 of the Framework Agreement) and the fact that public property has been made available to a private company without competition (Article 11/2 of the Constitution).

With regard to the first claim, in a reconciling interpretation between the contested provisions and Articles 13 and 113 of the Constitution, the Court, by majority vote, concluded that the management of public spaces by the strategic investor in Article 10.6 of the Framework Agreement should be understood as only an option, the implementation of which remains at the discretion of the local government.

Regarding the second claim, the Court, by majority vote, concluded that it is unfounded, since the exemption of the strategic investor from the obligation to pay these taxes/financial obligations does not give it a competitive advantage in the relevant market, as long as, despite the apparent advantages, in return the state has become a shareholder in the investing company to the extent of 33%, consequently it will participate in the distribution of dividends to the same extent. "/ CNA