The European Commission has asked the Rama government for clarifications regarding the reasons for the passing of a special law dictating the demolition of the National Theater building and the appropriation of public property by the private company Fusha shpk.
Via a letter, the Commission has presented the government with 15 questions, one of which asks whether the special Fusha shpk law is consistent with Albania’s obligations per the Stabilization and Association Agreement, that makes up the regulatory framework between the EU and our country.
The Commission also questions the Rama government’s decision on a private company that was not preceded by a competition. This intervention followed a letter four Democratic Party MPs sent to the European Commission.
Find a summary of the Commission’s questions below:
- Please provide a detailed description of the envisaged project and related transactions between the parties involved including the underlying financial data.
- In the absence of the public tender, please explain how will the authorities ensure that no selective economic advantage will be granted to Fusha Ltd as a result of the envisaged contract.
- With reference to the letter providing counter arguments relating to the affectation of the trade between the EU and Albania it is noted that the law only lays down conditions of a special procedure for negotiating and signing the contract for a development project in the National Theater zone. However, please note that if the law is implemented and the contract is concluded, the effect on trade between the EU and Albania would need to be considered. In this respect, in line with the EU jurisprudence it is not necessary to establish that the aid has an actual effect on trade but only whether the aid is liable to affect such trade.
- What is the reason of assigning a private company to conduct the project without any competition?
- Why is this done in the form of a specific law?
- As the law foresees a “Negotiating Committee” mostly for defining the terms of the contract with the private company selected, why this Committee was not charged also with the selection of the company itself?
- It seems from the provisions of the law that many basic elements of the contract and its performance are still to be defined. Taking this into account, could you please explain the elements that were taken into account during the selection of the private company nominated by the law to conduct the project?
- With reference to the letter providing counter arguments stating that “The approved Law not only has not preliminarily selected any private entity, but among with the stipulation of other legal acts in force, it has also provided for some additional requirements that the private entity should fulfill (…)” please clarify what were the selection criteria of the private company conducting the project?
- Was it only the fact that it has legal title over a land and a building (the seat of his company) in an area near the theater? If so, please explain how these selection criteria ensure that the basic principles of public procurement (equal treatment, non-discrimination, and competition) are followed?
- With reference to the provided counter arguments stating “The regulation of this atypical legal situation cannot be realized through the procedures and rules set out in the concession legislation / private public partnership due to the following reasons (…)” please clarify which provisions in the Albanian public procurement legislation allow for such a legal solution?
- How does the legal solution of direct award comply with the basic principles of public procurement, i.e. equal treatment, non-discrimination, and competition?
- How does such a legal set up complies with Article 74 of the EU-Albania Stabilization and Association Agreement on public contracts allowing non-discriminatory access to the Parties’ companies in each other’s public procurement markets?
- Furthermore, given that the private party will not receive any financial compensation from the state budget, please explain what is the type of compensation that it will receive for the completion of the works?
- What are the rights and obligations of the public and of the private party in the contract?