Continuous legal battle between Durres Port Authority and EMS Albanian Port Operator
The Albanian public body has requested compensation of 830,000 euro to the German concessionaire company, due to performing some operations not included in the terms of the concession contract
It is surely a never ending story the fight between Durres Port Authorit (APD) and EMS Albanian Port Operator.
The Albanian public body has now requested to the Tribunal a compensation of 830,000 euro to the German concessionaire company, which has been accused of performing some operations not included in the terms of the concession contract.
It all started a few years ago.
The Ministry of Public Works and Transport of Albania (today Ministry of Infrastructure and Energy) on 6 May 2013 signed the concession contract "On the management, operation and maintenance of the Eastern Terminal of the Port of Durres" with EMS Shipping and Trading Gmbh, under whose terms and conditions the Contracting Authority grants the concessionary company the management and operation of the terminal, operation involving the loading/unloading of mainly bulk cargoes, general/general loads and project loads as appropriate, as well as related activities, ie activities closely related to the processing of bulk cargoes and in particular cases of general cargo and project loads.
However the Germany-controlled concessionary company has also carried out operations (services) for most of which there is no approved fee, such as container filling, transport loading/unloading of container, extra movements, full/ empty, storage, weighing tools loaded, since the start of operation at the Eastern Terminal.
These services were provided and invoiced to users of the port of Durres by the concessionary company, contrary to Article 8 of the Contract "Financial and Payment Issues", on the basis of which the fees applied by the concession company should be in accordance with the "Durres Port Authority's Tariff Book" and the revenues earned by it, should be divided between the Ministry of Transport, Port Authority Durres and EMS-APO, according to percentages specified in the contract.
Concession proceeds are divided into three parts and the calculation basis for all three concession contract parties are service tariffs that apply to port users.
In 2017 the Durres Port Authority filed a lawsuit against the concessionary company EMS Albanian Port Operator (EMS-APO) with the object: Obligation of the Respondent, EMS Albanian Port Operator (EMS-APO) ltd. to: pay the amount of 101.991.277 lekë in favor of the Durres Port Authority as a result of the loss suffered by carrying out operations in contravention of the definitions of the concession contract, which constitutes a missing income for the Durres Port Authority for the period July 2013-30 November 2017, as well as the damage suffered in connection with non-payment in time of this amount; to stop processing of containers in the Eastern Terminal as an activity carried out in contravention of the concession contract, until contractual and tariff regulation of the created situation.
The Administrative Court of First Instance in Tirana with Decision no. 1414 on 24 April 2019 decided partial admission of the lawsuit. Obligations of the respondent party EMS Albanian Port Operator ltd pay the amount of the contractual obligation of 20.469589 lekë determined under the "Royalty" tariff in favor of the claiming party Port Authority Durrës and the amount of the contractual obligation of 71.383.280 lekë with unspecified tariff system in favor of the plaintiff party Durres Port Authority as a consequence of the performance of the activities included in the contract, and the damage suffered related to the non-payment of this amount in the form of interest payments in the amount of 258.173 lekë for the part of services where there is a defined fee and interest delays for 3.036.058 lekë for the part of services that did not have a defined fee.
Also, the Court finds unfounded in law the allegation of prohibiting the activity of container processing in Eastern Terminal as long as it is estimated that the entire activity of providing these services by the concessionaire has been in the function of the concession contract despite the non-performance of the contractual obligation in the form of revenue sharing in accordance with the law with the other parties to the contract.
The case is now registered with the Administrative Court of Appeals due to the exercise of the appeal by both litigants.
APD has filed an appeal no. 1775 prot. dated 20 May 2019 for the part of the claim that was overturned; date for review of appeals by the Administrative Court of Appeal has not yet been set.