The Commercial Court declared itself "actually incompetent" in the dispute initiated against the Government and the Port of Kotor by the company "Boka Pilot & Tug Boat Services" from Herceg Novi, which sought to establish the nullity of the executive authority's decision from December 2018, which granted the Port of Kotor a primary concession for the use of the port and port waters in Kotor and the performance of related activities.
By decision of the Government of the then Prime Minister Duško Marković (DPS) in December 2018, the state granted the Port of Kotor, which is majority-owned by the Municipality of Kotor, the so-called primary concession for the use of the Port of Kotor for a period of 12 years and the performance of a total of 26 activities from the maritime, port, marine sector and passenger terminal. One of these activities is the performance of maritime pilotage in the port waters, an activity that “Boka Pilot” has been engaged in for years.
"Boka Pilot" claims that the Government "violated the general principles of the prohibition of distorting competition and using a monopoly position", and that in this case the state abused the institute of temporary concession in favor of the Port of Kotor.
In the decision of the Commercial Court issued on December 11, which "Vijesti" had access to, it is stated that the Commercial Court "declares itself to have no substantive jurisdiction to hear the lawsuit in the part of the lawsuit that seeks to establish the nullity of the Government's decision on granting priority for the concession to the Port of Kotor." Commercial Court Judge Vladimir Bulatović He referred to the provisions of the Courts Act that determine the jurisdiction of this court instance, namely the provisions that stipulate that the Administrative Court is competent to decide in cases of disputes over the legality of administrative acts, including Government decisions on the granting of concessions. He instructed "Boka Pilot" that it can seek a review of the legality of the Government's decision from 2018 exclusively before the Administrative Court.
In its lawsuit to the Commercial Court, “Boka Pilot” requested that the Government’s decision to grant the primary concession for the use of the port and port waters in Kotor and the 26 related economic activities for a period of 12 years in 2018 be declared null and void, arguing that this was done in violation of the then-current provisions of the Concessions Act and the Ports Act. They also claim that the Government thereby “violated the general principles of the prohibition of distorting competition and the use of a monopoly position,” and that the state in this case abused the institution of a temporary concession in favor of the Port of Kotor.
Representatives of "Boka Pilota" believe that the temporary concession could not have been granted to the Port of Kotor in 2018 due to legal discontinuity. Namely, as they emphasize, in 2011, after the new Law on Ports came into force, this municipal company refused to act on the orders of the Ministry of Transport and Maritime Affairs and to conclude an agreement with the Port Authority of Montenegro, which then took over the management of ports of national importance, regulating mutual rights and obligations. The Port of Kotor did this by referring to the contract on the use of the maritime domain that the company had with the Public Company for Maritime Domain Management, which was valid until mid-2015. However, even after the expiration of that period, the Port of Kotor continued to "without regulating the relationship with the port operator (UPSUL - Maritime Safety and Port Management Administration)" use the port waters and carry out economic activities in them, which is why, according to "Boka Pilota", the state could not grant it a primary concession in December 2018, referring to the "legal continuity" of that company as a user that in 2011 failed to comply with the legal obligation and orders of the Ministry of Transport and Maritime Affairs.
Representatives of the government and the Port of Kotor disputed these allegations, claiming that there was no evidence for them, and that “there was no impermissible legal basis” for concluding the contract on the primary concession and its subsequent annex between the Government and the Port of Kotor, and that “there was no break in legal continuity to which the plaintiff refers”. They also disputed the legal interest of “Boka Pilota” to file a lawsuit at all to establish the nullity of the contract on the primary concession for carrying out port activities “because the subject of the contract does not include the service of port pilotage, and the plaintiff has not proven in respect of which other services and activities that are the subject of the contract it has a legal interest”.
"The fact that the lawsuit in question was filed more than five years after the decision was made and the contract was concluded makes it indisputable that there is no legal interest," responded the representatives of the Port of Kotor, who also emphasize that in the part of "Boka Pilota's" request for the determination of the nullity of the annex to the contract on the primary concession, "the procedure for granting the port pilotage concession is ongoing and that the plaintiff can exercise the protection of his rights and interests in that procedure."
“Boka Pilot” has already succeeded twice in the disputes it initiated against the state regarding the granting of a concession for maritime pilotage in Boka Bay, after the state declared “Boka Pilot”’s first-ranked bid in the 2018 tender “inappropriate”, and awarded the pilotage concession to two other bidders, the Port of Kotor and the company “Sea Pioneer Montenegro” from Herceg Novi. The state then revoked that concession right from “Sea Pioneer” in February 2023, when the 43rd Government, at the proposal of the then Prime Minister, Dritan Abazović, decided to grant the exclusive concession for pilotage in Boka Bay only to the company Luka Kotor.
At the same time, in making such a decision, Abazović's government obliged the Maritime Safety Administration to "prepare a proposal for a concession act as soon as possible and implement a new procedure for granting a concession for pilotage in Boka Bay". However, the Administration, which has since been headed by PES personnel, first Haris Husic and then Nebojsa Kaljević, has not acted in accordance with that Government conclusion to this day.
In practice, this means that both "Sea Pioneer Montenegro" and "Boka Pilot&Tug Services" are artificially blocked from performing the activities for which they have licenses, personnel and equipment, and that the monopoly on the highly profitable activity of piloting around 500 large passenger ships, which on average enter the Boka Bay annually, has been given exclusively to the Port of Kotor, and this situation has lasted for three years.
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