In a retrial, the Commercial Court rejected the lawsuit of the company "Plava Hydro Power", which had a concession for the construction of a small hydroelectric power plant on the Đurička River in Plav, demanding that the state return a bank guarantee of 250 thousand euros with interest, as well as that NLB Bank compensate it for damages due to the collected guarantee of 44,7 thousand euros.
The court also ruled that the company, owned by Kosovo businessman Florin Krasniqi, whose lawyer in the proceedings was Ana Đukanović, must reimburse the state for the costs of the court proceedings in the amount of 4.725 euros and the second defendant, NLB Bank, in the amount of 2.400 euros. The state was represented by the Office of the Protector of Property and Legal Interests Bojana Ćirović.
The court finds that the collection of the guarantee was initiated within the legal deadline before its expiration and in a proper manner, that the concessionaire "Plava Hydro Power" did not fulfill its obligation from the contract to extend the concession 15 days before its expiration, and that the state and NLB Bank acted in accordance with the law in everything.
The Court of Appeal previously overturned the verdict in favor of Krasniqi.
The Commercial Court issued this ruling on May 9th, and Krasniqi's company has the right to appeal to the Court of Appeals within eight days of receiving the ruling.
The Commercial Court issued its first ruling regarding this dispute in July 2023, when it accepted the request of the plaintiff "Plava Hydro Power" that the state return the collected bank guarantee of 250 thousand euros with interest from 2022, while at that time it rejected the part of the claim related to the collection of alleged damages from NLB Bank.
This judgment was then appealed by both Krasniqi's company and the state's representative. The Court of Appeal annulled this judgment of the Commercial Court and remanded it for retrial, finding that the first-instance judgment was affected by a significant violation of the provisions of civil procedure because it lacked sufficient and clear reasons on the decisive facts. The Court of Appeal requested that the new proceedings clarify and prove whether the state had submitted a request for collection of the guarantee within the legal deadline before its expiration and whether, with the legal agreement between the state, NLB bank and the concessionaire on the extension of its collection until June 1, 2022.
In the new court proceedings, the prosecutor maintained that the bank guarantee was collected illegally, while the Office of the Protector of Property and Legal Interests of Montenegro stated that the guarantee was collected within the legal deadline due to the concessionaire's failure to fulfill its obligations.
Billing initiated five days before expiration
The new ruling of the Commercial Court established that the bank guarantee for this concession expired on March 14, 2020, that the concessionaire was obliged under the contract to submit a new guarantee at least 15 days before the expiry of the previous one, but that it did not do so, and that after failing to fulfill this obligation, the state sent a summons to collect the bank guarantee on March 9. That is, the collection was initiated while the guarantee was valid after the concessionaire violated the contractual obligation to submit a new one.
The reasoning for the verdict now also lists all correspondence between the state, the NLB bank with which the guarantee was deposited, and the concessionaire regarding requests to postpone the collection of the bank guarantee.
"Since the first defendant (the state) primarily activated the bank guarantee in question within its validity period (i.e. before 14.03.2020) on 09.03.2020 by submitting a request for collection of the bank guarantee, because the plaintiff did not extend the existing one or submit a new bank guarantee, in accordance with the obligation assumed under Article 11 of the basic contract, but to suspend the collection of the same until 17.04.2020 because negotiations have begun on the termination of the concession contract with an indication that the request for collection will be withdrawn if a new bank guarantee is provided by 17.04.2020, this court is of the opinion that the first defendant acted in all respects in accordance with the previously cited provisions. Uniform Rules, whereby the factual findings, namely the specific written communication between the plaintiff and the representative of the Ministry of Economy, and later the Ministry of Capital Investments, point to the conclusion that there was evidently a coordinated call between the principal and the beneficiary of the guarantee, as well as the approval "The guarantor's request to extend the validity period of the guarantee," the explanation of the new verdict stated.
Then, the dates of ten requests for deferral of the collection of the bank guarantee that the state accepted were listed, and that the last one expired on June 1, 2022, after which the guarantee was collected on June 10.
Concession issued in 2014, cancelled in 2021.
Florin Krasnići's "Plava Hydro Power" consortium was granted a concession to build a small hydropower plant on the Đurička River in April 2014. His project was declared public interest by the former government in 2016, in order to make it easier to expropriate land that private owners did not want to sell to him for the construction of a small hydropower plant. He repeatedly requested extensions of various deadlines in the contract. On December 4, 2020, the day the new government was elected, he informed the former Ministry of Economy through his lawyer that he was initiating the procedure for terminating the concession contract to the detriment of the government.
The Ministry's documents state that this concessionaire did not submit a bank guarantee in the amount, within the deadline and with the content stipulated in the concession agreement, which is the reason for the termination of the contract. It is also stated that the deadline for completing the construction expired in October 2020. The former Government also wanted to terminate the contract with this concessionaire, as stated in the conclusion from October 2019, but did not implement it. The contract was terminated by the new government only in 2021. During the dispute, Krasniqi's company also referred to the fact that it could not complete the project due to protests by citizens who opposed the construction.
Bonus video:
