On 21 July 2021, the High Court of Albania overturned earlier decisions of the first instance administrative court and administrative court of appeals. A panel of 3 judges unanimously voted to approve the request filed in May 2017 by TOKA and 27 local inhabitants to grant an interim stop work order. The request was filed in conjunction with the “TOKA & 27 vs. MEI” suit (see details under “Legal Timeline”) which claims the absolute invalidity of the concession contract granted to Gener2 in 2009 authorizing the two ‘Dragobia Cascades’ hydropower plants in Valbona Valley National Park. The formal written court decision was published this month (September).
What Does This Mean?
As granting of the stop work request is tied to the validity of the original concession contract, it also has authority over the validity of ALL permissions resulting from the contract: The environmental permit, the water use permit, the development permit AND the construction permit. Despite Gener2’s argument in the court of appeals hearing in March 2021, that “it doesn’t matter anymore because the construction is finished,” in actuality any and all activity on the HPP – including operation – is strictly forbidden, pending the final court determination regarding the validity of the contract.
As this is a high court decision, there is no appeal.
What Happens Next?
In the Albanian justice system, it is now the responsibility of the plaintiff (TOKA) to deliver the court decision to a bailiff, and request the bailiff to ‘execute’ the decision. This means the bailiff must first formally inform the HPP companies, Dragobia Energy and Gener2, of the court decision, and then give them 10 days to voluntarily cease all activity. Any activity (construction OR operation) after this point will constitute a criminal activity.
What Could Go Wrong?
You might remember that back in 2018, a similar stop work order was granted by the administrative court of appeals by Judge Rilindi Selimi. In 2018, however, the request was tied to a different lawsuit (“TOKA vs KKT”) and applied only to the construction permit. In a shocking move, the developer Gener2 filed suit in Tropoja District Court against the office of the bailiff, Eduart Mrishaj, claiming that if he followed this higher court ruling, he would be acting illegally. Their argument? “This stop work order is tied to a suit concerning the construction permit for Dragobia Energy HPP. This permit has expired, and therefore no longer exists. It is illogical to file suit about something nonexistent, and therefore the stop work order is nonsensical and any action regarding it is illegal.” Of course this highlights our point: They were working – and continue to work – without any construction permit at all! One day before the HPP were due to be shut down, Tropoja Court’s judge Sami Ujkashi upheld the suit, effectively blocking the bailiff. At the time, then deputy Minister of Justice Toni Gogo called the decision “completely illegal” and stated that the Ministry would be investigating and issuing a report. Despite this, to date no report has been published, the construction continued uninterrupted, although the order legally still remains remains in effect.
Watch for the Unfolding Story!
In the coming week, TOKA will visit Tropoja Bailiff Eduart Mrishaj, requesting he enforce the high court decision. Happily, most of the 2018 Tropoja court has been removed by vetting or relocated to other regions. Things are about to get “Interesting . . . .”