Documents provided by the European Commission to Exit after a freedom of information request show the real reason why the Albanian government insisted on drafting a “Special Law” for the “renovation” of the National Theater: It has no money.
In March 2018, Prime Minister Edi Rama announced suddenly that international renowned architecture firm Bjarke Ingels would design a new National Theater in Tirana, and that a new public–private partnership would be set up to develop the property, as well as the area around it, most of which is public property. The means to implement this project was a “special law.”
Although the Prime Minister refused to name the “private” partner that would develop the project, which included a number of skyscrapers, it became quickly clear that Fusha shpk was involved, one of the companies closest to the government and recipient of many shady tenders.
An argument ensued with civil society about the cultural and historical of the current National Theater, which would destroyed as part of the plan, and why a “Special Law” was needed to privilege a single company in a concession. Not only did the Special Law violate the principle of equality before the law, it also violated the Constitutionally regulated autonomy of local government. As a result, President Ilir Meta rejected the law, while the European Commission demanded an explanation as regards possible violation of non-discriminatory access to markets in violation of the Stabilization and Association Agreement.
The argumentation of the Albanian government to the European Commission is that we are not dealing with a possible procurement situation, because the government has no money to spend:
[I]t is worth pointing out that this is by no means the classic case where the public party has a public fund available […] and is offering it to a private company without conducting a competition.
We point out that the public party does not have a public fund to offer for the construction of a Theatre.
This is a remarkable statement for the government to make. First of all because it admits that it has no money whatsoever for the National Theater, either its renovation or its reconstruction. This is a fact that was never publicly admitted by the Prime Minister, Minister of Culture, or any other government functionary.
Albanian Ambassador to the EU Suela Janina then points out that
The process and the concrete project was initiated and offered to the public party [the Albanian government] by a private entity [Fusha shpk], an adjacent owner who offer to build a new theatre without touching any cm2 of the current theatre in exchange for a part of the adjacent site with the Theatre, the property of the Municipality Tirana, as well as the right to develop this site together with their property. […]
Apart from the falsity of this statement – several architectural rendering show that the surface occupied by the National Theater would be severely reduced – it shows a new and troubling argument: Because the state has no money, it is allowed to give away public property without following any form of public procurement.
Furthermore, Janina claims that none of this is even necessary:
[T]he concrete case did not start from a need declared by the public party, but from the proposal of a project by an entity that is the owner/representative of 93% of the property that is adjacent to state property.
In other words, as long as the state claims it is pennyless, it can give away any public property it wants to anyone who “makes an offer,” as long as no “real money” changes hands. This is precisely the inverse of nationalization – the Rama government is ushering in an era of mass privatization without any form of accountability, while flouting all constitutional standards along the way. But no matter, the Constitutional Court is dead.
This also shows that the revised Special Law, now under consideration with President Meta, does not allow for any real “competition,” because the only possible competitor to this “project” would be a company that not only owns “adjacent land” but also is proposing to gift an even bigger theater than Fusha! All of this is very unlikely, and the changes to the Special Law are therefore merely a cosmetic applied solely to satisfy the European Commission. President Meta would do well to reject it once again.