The Ministry of Maritime Affairs told "Vijesti" that the Shareholders' Assembly of Barska Plovidba transferred its powers to the executive director and that he was able to make a decision on the selection of the best bidder for the sale of the company's old administrative building and sign the purchase agreement.
The Special State Prosecutor's Office is investigating this sale, following a complaint from the highest bidder, Admiral Holding, because the CEO is Boris Mihailović rejected theirs, and accepted a 200 thousand euro lower offer from the company “Roaming Montenegro”. “Admiral Holding”'s offer of 1,95 million was declared invalid because a notarial deed for their employee was allegedly missing.
According to information from "Vijesti", the prosecutor's office is also investigating whether the executive director could have made a decision on the selection of the offer given his responsibilities under the Law on Business Companies and the company's Statute, as well as whether the highest offer was correctly rejected.
Mihailović made the decision to choose the lower bid 25 days after the Commission determined that both bids were correct, on the last day when “Barska plovidba” was due to pay the loan installment to the Chinese Exim Bank of around 1,55 million euros. On the same day, the purchase agreement was signed, the buyer paid the money and began the process of transferring the property to himself.
The law authorizes the director to receive up to 100.000 euros
The Law on Companies and the Statute of Barska Plovidba state that the sole jurisdiction of the Shareholders' Assembly is to dispose of assets of greater value (over 20 percent of the book value), and that the Board of Directors is responsible for implementing the decisions of the Assembly.
It does not say anywhere that the Shareholders' Assembly can transfer its powers to the executive director, or that it can bypass the board of directors in making this decision.
The company's statute stipulates that the executive director can make decisions on assets worth up to 100 thousand euros, and the board of directors can make decisions on assets worth 100 thousand to 20 percent of the book value. The company has a negative value because accumulated losses are greater than assets, and the company's liabilities are also greater than assets.
How the board of directors was bypassed
Mihailović previously told "Vijesti" that he presented the decision on the selection of the bidder to the company's Board of Directors and received the green light from that body for him to be the one to make the decision.
Chairman of the Board of Directors of the company Ćazim Alković subsequently responded stating that the Board of Directors of Barska povidba never decided on the selection of the bid, nor is there a Decision on Consent, nor could the Board give consent in this regard, but that they were only informed about it.
From the Ministry of Maritime Affairs, whose State Secretary is Pavle Tripković Mihailović's godfather, in response to questions from "Vijesti", stated that the Shareholders' Assembly legally transferred its authority to the executive director.
The Ministry did not participate in the proceedings.
"We inform you that this is a decision that falls within the jurisdiction of the Shareholders' Assembly, so this body has made a lawful decision and partially transferred to the Executive Director the operational segment of its powers, those necessary for the efficient implementation of this decision.
Precisely because of the delegation of the operational segment of authority by the Shareholders' Assembly, the Ministry of Maritime Affairs did not participate in the process of selling the real estate in question. Although this was not a legal obligation of the company 'Barska plovidba', for reasons of transparency and competitiveness, the executive director formed a commission to which he entrusted the procedure of conducting the sale through public bidding.
"The commission worked independently and evaluated the submitted bids," the Ministry stated.
They indicate that, like all other interested parties - the Ministry of Finance and the Protector of Property and Legal Interests, they have been informed about the content and correctness of the submitted bids.
The Government holds the majority of votes at the Shareholders' Assembly and its representative (from the Ministry of Maritime Affairs) voted in favor, while the small shareholders voted against. Thus, the Government effectively authorized Mihailović to carry out the procedure.
The deadline was awaited.
Before making his decision, Mihailović waited for the opinion of a hired private lawyer who had found an alleged problem with the notarial deed, and presented his decision to cancel the best offer to the authorities just before the deadline for paying the installment to the Chinese bank expired.
"All of the aforementioned participants were aware that a possible cancellation of the initiated sales procedure would lead to uncertainty in terms of securing funds to pay the due loan installment to Exim Bank, and none of the aforementioned participants wanted to accept such a risk. On that occasion, it was concluded that the correct offer should be accepted," the Ministry stated.
The state is the guarantor of this loan agreement and has so far paid most of these installments without any problems.
The committee was only informed.
The Ministry states that they are aware that the Board of Directors of Barska Plovidba was informed about the public bidding procedure and the work of the commission throughout the entire process, and that it "left it to the executive director to bring the process to an end without any suggestions or objections."
In his response, Alković stated that the Board of Directors was only informed about the activities of the Executive Director and the Commission formed by the Director, and that it did not give any consent.
"The board also received information from the executive director that it will consult the Ministry of Maritime Affairs and the Ministry of Finance about the decision, which does not constitute a decision, nor does it constitute any consent to the selection of any offer regarding the sale of the old Barska plovidba office building," Alković said in his reaction.
The director implemented and followed up on the decision
The materials from the Barska Plovidba Shareholders' Meeting of May 19th of this year include a decision to sell the old office building in Bar and office space in Belgrade.
The decision states that the executive director is authorized to carry out the real estate sale procedure, and in the following article, the executive director is tasked with monitoring the implementation of this decision.
Ministry: Notary certified everything
The Ministry states that additional proof that the sale was carried out legally is that a notary has verified the authorizations and certified the contract.
"Given that the competent notary ultimately verified all legal authorizations for concluding the contract, drew up a notarial deed and certified the Real Estate Purchase and Sale Agreement, we believe that there are no valid legal reasons for annulling the sale," the Ministry of Maritime Affairs believes.
The company that made the better offer, "Admiral Holding", initiated a dispute with the Commercial Court in Podgorica, requesting a temporary measure prohibiting the transfer of real estate to the selected buyer until the investigation by the Special Prosecutor's Office is completed.
Jovović: We've been talking about what it's going to be like for ten years
One of the representatives of small shareholders Alexander Jovovich He said that the prosecution's actions were late in "Barska plovidba".
"Minority shareholders at the last Assembly voted against the sale of the building and against the contract on technical cooperation with Crnogorska plovidba. We have been talking for 10 years about what will happen, how both companies were managed and how they continue to be managed, but the prosecution so far seems to have not known the way to Bar. Now it is unnecessary to react and talk, the time that has passed has given the best answer. And the important thing is that ASK dealt with us and kicked us out of the Board of Directors, since then everything has flourished," said Jovović.
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