Further amendments to Concessions Law - International Law Office

Establishment of Concessions Agency
Changes to Administrative Appeal Procedure
Comment

The recently published Concessions (Amendment) Law (10157/2009) has brought about several key changes to the Concessions Law (9663/2006) (as amended). The amendment law was published in Official Gazette 149 on November 5 2009 and entered into force on November 21 2009.

Establishment of Concessions Agency

The Public Procurement Agency will no longer cover concessions - this role will now be performed by the newly established Concessions Agency. According to the amendment law, the agency will report directly to the prime minister and its organization shall be determined by the Council of Ministers. The competencies of the agency in relation to concession procedures are more extensive than those of the Public Procurement Agency previously. The agency will oversee the application of concession procedures and adjudicate appeals that are lodged by bidders, and propose disciplinary measures and impose fines in cases of administrative offences committed by officers of the public institution dealing with that concession.

Further, the agency will:

• require contracting authorities to provide bi-annual reports on the status of concessions;
• propose to the Council of Ministers necessary steps to improve the legal framework for concessions; and
• be responsible for disqualifying from concession procedures bidders that submit falsified documents or provide false data.

Changes to Administrative Appeal Procedure

The changes introduced to the administrative appeal procedure are the most significant of those brought about by the amendment law.

If a bidder or an interested party wishes to exercise the right to submit an administrative appeal to the agency, it must pay 10% of the bid security to the agency upfront. Methods of payment will be set out in sub-acts, which have not yet been approved. Whether the agency will consider the appeal is dependent on this payment. If payment is not made, the agency will not consider the appeal.

If the appeal is successful (ie, the agency considers it to be based on law and fact and decides that the claimant has suffered damage as a result of acts or omissions by the contracting authority), the payment is returned to the bidder. However, should the appeal not be granted by the agency, the payment goes towards the state budget.

The agency will conclude the inquiry and make its decision within 30 days of submission of the appeal. Previously, the Public Procurement Agency had 20 days in which to reach a decision.

After the closing of the inquiry the agency may:

• grant the appeal and define (i) the contracting authority's infringement in its application of the Concessions Law, and (ii) the steps to remedy such infringement and restore the legality of the contracting authority's activity;
• reject the appeal and describe in writing to the appellant the reasons for such decision; or
• impose a timeframe on the contracting authority within which it must correct such infringement or mitigate the negative effects thereof.

Comment

The Amendment Law raises issues regarding constitutional rights and freedom.

The Constitution (8417/1998) (as amended) upholds the fundamental right to appeal and the prohibition of discrimination as two of the most important human rights in Albania.

Article 42 of the Constitution defines the principle of due process. Every subject has the right to be judged in a public and due process and claim that his or her freedom or rights have been infringed. Article 6 the European Convention on Human Rights, which has been ratified by Albania and is an integral part of the Albanian legal framework, guarantees the right to a fair trial by stating that everyone has the right to due process for the evaluation of their case before a neutral body. According to the European Court of Human Rights, this right should be broadly interpreted, providing everyone with the right to submit requests, appeals or other queries to judicial or administrative bodies without limitation.

In Baraonit v Portugal(1) the European Court of Human Rights considered that not only standard courts, but also administrative bodies should be included in the concept of 'court', as defined by Article 6. Thus, the court considered that any limitation imposed on a person to appeal to juridical or administrative bodies is not in conformity with the convention.

Arguments to support the view that the amendment law restricts the freedom of fair and due process can be drawn from the Constitution and the convention, both of which prohibit discrimination. Article 18 of the Constitution prohibits discrimination based on, among other things, gender, race, religion or economic status. Article 14 of the convention and Article 1 of the 12th Protocol of the convention expressly prohibit unequal treatment of persons for any reason, including wealth.

Finally, in cases where the bidder is unable to pay the 10%, it may not file a lawsuit as, in accordance with Article 26 of the Concessions Law, it may do so only after a decision has been rendered by the agency.

For further information on this topic please contact Olti Skrame at Kalo & Associates Law Firm by telephone (+355 4 2233 532), fax (+355 4 2224 727) or email (o.skrame@kalo-attorneys.com).

Endnotes

(1) October 26 1984.