Besides the authorization to negotiate with Greece, the draft law for the National Theater seems to be the most challenging issue for President Ilir Meta during the first year of his term. Within 20 days from its presentation, the President must either sign or send the National Theater law back to parliament (per articles 84 and 85 of the Constitution). His decision is, without a doubt, the most important one at the moment, as this decision will set the course for his future relationship with the government, the opposition, and the country’s citizens.
The Constitution, EU integration prospects, the laws, and public interests all dictate the President should return the law to parliament. However, oftentimes, these have proved to be insufficient. Without attempting to judge the President’s decision, it is important to list, once more, the reasons why President Meta mustn’t sign the National Theater law:
1. The new National Theater law violates the autonomy of the local government.
The National Theater law mandates the expropriation of public land owned by the Tirana municipality, to give it to the private company Fusha shpk.
However, article 13 of the Constitution declares that the local government is “based on a decentralization of power principle and exercised on the basis of the local autonomy principle.”
Meanwhile, article 113 of the Constitution clearly dictates that it is municipal councils who “exercise property rights, administer their income independently, and are entitled to exercise economic activity.”
The Tirana municipality owns around 2,100 sq.m. of the public land in question, its far majority. It is only the Tirana Municipal Council who has the right to transfer ownership of any part of this property.
These Constitutional principles are further elaborated on in Law no. 139/2015 “On local self-government,” art. 54 of which clearly dictates that the expropriation or usage of public property to the favor of third parties falls within the jurisdiction of the municipal council, and can only be approved if 3/5 of the council vote for it. This is an organic law, passed by a two-thirds vote in Parliament, and overrides any simple-majority approved law like the National Theater’s draft law. What this means is that the Parliament cannot pass any law that contradicts the above via a simple majority.
Furthermore, Constitutional Court ruling no. 3/2009 dictates that central government organs have no right to interfere in the local government organs’ jurisdiction:
Local self-governing units cannot be impeded in their jurisdiction by central government organs, as they have their own realm of activity predicted by the Constitution.
Constitutional Court ruling no. 29/2006 dictates that “urban planning and land management fall entirely and exclusively within the local authorities’ jurisdiction.”
Though the Constitutional Court is currently non-functional, the above rulings are final and binding for every institution, per article 132 of the Constitution. Therefore, the Parliament, as well as every state institution, including the President, are bound to obey them.
Articles 3 and 4 of the European Charter of Local Self-Government, ratified by the Albanian Parliament, dictate that central government organs, including the Parliament, cannot restrict the local government’s legally provided rights. This means that the Parliament has no right to expropriate municipality property, because, in doing so, it infringes on the exclusive competence of the municipal council.
2. The National Theater law violates the free competition and non-discrimination principle.
This principle has been sanctioned in the Stabilization and Association Agreement, which makes up the regulatory framework between Albania and the EU, and according to which public contracts must be signed based on the principles of free competition and non-discrimination (articles 71 and 74).
A law containing the explicit selection of a specific private company for a public contract violates these principles, as it makes it impossible for any other Albanian or European company to participate in the execution of this project. At a time when Albania is persistently attempting to enter the EU, such a law violates the principles on which the entire joint European market stands upon.
The claim that this company is an adjacent property owner is irrelevant, since no law or article of the Constitution grants a private company the right to acquire exclusive construction or development rights, without first undergoing a competitive procedure.
Furthermore, as it has come out recently, the property in question is a small one (289 square meters) adjacent to the National Theater plot.
3. The Theater building plan violates law 125/2013 “On Concessions and Public–Private Partnership”
Article 25 of this law, which defines the ways in which a public–private partnership must be conducted, states the procedure that must be followed in the case of an unsolicited proposal, like that of Fusha shpk. If such a proposal is approved, it then triggers the start of a public competition.
4. This law violates Constitutional article 3, according to which, “national identity and inheritance are the bases of this state, which has the duty of respecting and protecting them.”
The value of this public property was recently confirmed by the International Committee for Documentation and Conservation of Buildings, Sites and Neighbourhoods of the Modern Movement (Docomomo) and the Pan-European Federation for Cultural Heritage (Europa Nostra), who asserted that:
The National Theater is an extraordinary example of Italian modern architecture from the era, and the only building of its kind in Tirana.
The above reasons demonstrate that this law does not follow neither the spirit nor the letter of the Albanian Constitution, the Stabilization and Association Agreement, the European Charter of Local Self-Government and other laws.
At a time when the Constitutional Court has been rendered non-functional as a result of an insufficient amount of members, the President’s role gains a special importance. As Head of State, it is his primary duty to protect the Constitution. He must return the draft law for the expropriation of the public land on which the National Theater is built to Parliament, and refuse to make way for this unconstitutional and illegal attempt, that has the potential to become an unmatched precedent in the history of a EU candidate country.
