Constitutional Court

KO157/23, Applicant: Vlora Dumoshi and 11 other deputies, Constitutional review of Decision no. 08-V-583 of the Assembly of the Republic of Kosovo, of 13 July 2023, on the dismissal of the member of the Board of the Procurement Review Body  

KO157/23, Judgment of 17 May 2024, published on 1 July 2024

Key words: institutional referral, admissible referral, procurement procedures, competencies of the Assembly, institutional independence of the PRB

The circumstances of the present case are related to the dismissal of a PRB Board member by the contested Decision of the Assembly of the Republic of Kosovo, of 13 July 2023. As clarified in the Judgment, the dismissal of the PRB Board member was preceded by the Decision [PSH. 397/409/22] of the PRB Board of 11 October 2022, which annulled the Notice of the Contracting Authority, namely the Ministry of Health, for the cancellation of the procurement activity entitled “Supply of Insulin Analogues from the Essential List Lot 1 and Lot 3”. The aforementioned decision of PRB’s Review Panel was rendered unanimously, following the complaints by two (2) economic operators and after having examined the expertise of the relevant procurement expert, specifying that the Ministry of Health Notice on the cancellation of the procurement activity is annulled, and that the case is remanded for re-evaluation. The aforementioned decision of PRB’s Review Panel, at the request of the Ministry of Health, has been subject to assessment by the regular courts, the Basic Court in Prishtina and the Court of Appeals, respectively, which rejected the lawsuit, respectively the complaint, of the Ministry of Health, as inadmissible. In what followed, the Government of the Republic of Kosovo proposed the dismissal of the chair of PRB’s Review Panel, which had issued the aforementioned decision, on grounds of “violation of professional ethics”. This proposal of the Government was reviewed by the Committee on Budget, Labor and Transfers of the Assembly of the Republic of Kosovo, which decided to recommend to the Assembly not to approve, namely to reject the proposal of the Government of the Republic of Kosovo for the dismissal of the PRB Board member. Nevertheless, the Assembly of the Republic of Kosovo, in the plenary session of 13 July 2023, based on the proposal of the Government, through the contested Decision, dismissed the PRB Board member.   

The applicants before the Court challenged the constitutionality of this Decision of the Assembly, claiming, among others, that it was rendered in violation of the oversight competence of the Assembly, according to the provisions of paragraph 9 of article 65 [Competencies of the Assembly] and article 142 [Independent Agencies] of the Constitution, in essence, underlining (i) the lack of legal basis for the respective dismissal; (ii) the violation of PRB’s functional independence; (iii) interference with the competence of the judicial branch to assess the legality of the PRB’s decision-making; and (iv) the violation of the fundamental rights and freedoms of the dismissed member of the PRB. The claims of the applicants were opposed by the Parliamentary Group of the VETËVENDOSJE Movement!.

In the context of the issues above, the Judgment first emphasizes the fact that the aforementioned circumstances and allegations, among others, have raised issues related to (i) the constitutional competence of the Assembly of the Republic of Kosovo to oversee the work of public institutions, which, based on the Constitution and the laws, report to the Assembly and the relevant limitations in the exercise of this oversight function based on the laws adopted by the Assembly; (ii) the independence of the independent agencies established pursuant to Article 142 [Independent Agencies] of the Constitution, including the status and functional and decision-making independence of the PRB based on the applicable laws on public procurement; and (iii) the competence of the Assembly, in exercising its oversight function, to dismiss PRB members, including the respective limitations based on the applicable laws on public procurement.

In the context of the principles arising from the analysis of constitutional principles, the Judgment initially clarifies that the Assembly exercises its function based, among others, on article 4 [Form of Government and Separation of Power] and article 65 [Competencies of the Assembly] of the Constitution, including the competence to (i) adopt laws, resolutions, and other general acts; and (ii) to oversee the work of the Government and other public institutions, which, based on the Constitution and laws, report to the Assembly. According to the clarifications given in the Judgment, both of these competencies constitute the essence of the constitutional function of the Assembly. Having said this and based, among others, on articles 65 [Competencies of the Assembly] and 74 [Exercise of Function] of the Constitution, in the context of the constitutional competence of oversight, the Assembly is conditioned in the exercise of this function in compliance with (i) constitutional provisions, including those stipulated by articles 3 [Equality Before the Law], 4 [Form of Government and Separation of Power] and 7 [Values] of the Constitution, respectively; and (ii) the limits and authorizations established in the laws approved by the Assembly itself in relation to the public institutions that report to/are overseen by the Assembly. According to the clarifications given in the Judgment, in the context of the exercise of the oversight function of the Assembly pertaining to the Independent Agencies established based on Article 142 [Independent Agencies] of the Constitution, within which also the PRB falls based on its characteristics according to the applicable laws on public procurement, but also according to Law no. 06/L-113 on the Organization and Functioning of the State Administration and Independent Agencies, specific importance is attached to the oversight limitations of the Assembly based on paragraph 9 of article 65 [Competencies of the Assembly] of the Constitution in conjunction with paragraph 1 of Article 142 [Independent Agencies] of the Constitution and laws related to public procurement in the Republic of Kosovo, as adopted by the Assembly itself.

The Judgment further clarifies that, whereas based on article 142 [Independent Agencies] of the Constitution, Independent Agencies are established by laws of the Assembly and which regulate their establishment, operation and competencies, the same, based on the aforementioned article of the Constitution, exercise their functions independently from any other body or authority in the Republic of Kosovo and, moreover, every organ, institution or other entity exercising legal authority in the Republic of Kosovo is bound to cooperate with and respond to the their requests  during the exercise of the legal competencies in a manner provided by law. Furthermore, based on the provisions of Law no. 04/L-042 on Public Procurement of the Republic of Kosovo and the respective amendments and supplementation to this law, among others, (i) PRB is an independent review body that exercises its authority, powers, functions and responsibilities as established in the Law on Public Procurement; and (ii) no person or public official may exercise or attempt to exercise political influence or unlawful influence on PRB or any of its employees concerning their decisions. Further and according to the given clarifications, the aforementioned Law establishes the relationship between PRB and the judicial and legislative branches, respectively. In the context of the former, the applicable law determines that the legality of PRB’s decision-making is subject to judicial control. While, in the context of the second, the applicable law establishes the relationship between the Assembly and PRB, related to the appointment of PRB’s members, reporting obligations and the dismissal of  PRB’s members. Pertaining to the latter, according to the clarifications provided for in the Judgment, taking into account the importance of PRB’s functional independence, the applicable laws, over the years, have specified that the dismissal of PRB members may be done only after the grounds for dismissal have been confirmed through the decision-making of the courts, whereas with the amendments and supplementations to the Law on Public Procurement of March 2016, exceptionally, the possibility for the Government to propose to the Assembly the dismissal of the chairman or a member of the PRB has been provided for, “if he/she has committed any act which is contrary to professional ethics and professionalism associated with professional duties”,  a ground on which the dismissal of the PRB member resulted in the circumstances of the present case.

However, based on the clarifications given in the Judgment, neither the Government nor the Assembly have given any justification regarding the alleged violation of the “professional ethics” of the PRB member, the basis on which the proposal and her dismissal was made. The Committee on Budget, Labor and Transfers of the Assembly had recommended to the latter not to approve the Government’s proposal for dismissal. In addition, the Basic Court and the Court of Appeals dismissed as inadmissible the lawsuit and the complaint of the Ministry of Health for the annulment of the Decision of the PRB. In fact, based on the circumstances of the case, it results that the PRB member was dismissed for her decision-making regarding the issuance of the PRB Decision on the annulment and re-evaluation of the Ministry of Health’s Notice on the cancellation of the relevant procurement activity.

According to the clarifications given in the Judgment and relying on constitutional and legal guarantees, as well as the case-law of the Court, including in the context of dismissals of members of institutions/agencies and/or independent bodies for their decision-making, the Court emphasizes that the individual and collegial independence of PRB members, does not only mean independence from external influences that the PRB members may face, but also from influences from the body that has appointed them to the relevant positions – in this case, the Assembly. This independence embodies the intention that the members of the relevant bodies are free to exercise their functions without fear of any consequences related to the performance of their functions based on the authorizations pursuant to the applicable laws. The latter, as far as it is relevant in the circumstances of the case, accurately determine that (i) the legality of PRB’s decision-making is subject to judicial review; whereas (ii) PRB members are suspended and/or removed from office, in the event of an indictment or a final court decision, respectively. The possibility of dismissing a PRB member on the ground of “professional ethics” cannot be invoked formalistically to justify the dismissal of a PRB member, for decision-making in concrete cases, if the violation of the rules of “professional ethics” is not convincingly proven. Such a precedent, based on which PRB members could be dismissed for their decision-making, would deeply undermine PRB’s functional independence and the very purpose of its existence, according to the provisions of the applicable laws.

In its Judgment, the Court has finally reiterated that the authorization of the Assembly based on paragraph 9 of article 65 [Competencies of the Assembly] of the Constitution to oversee PRB is indisputable, but that in exercising this authorization, the Assembly is limited to the constitutional provisions, including the independence of the Independent Agencies based on the provisions of the Constitution itself and laws which the Assembly itself has adopted based on paragraph 1 of article 65 [Competencies of the Assembly] of the Constitution. The Judgment also emphasizes the values of the constitutional order of the Republic of Kosovo, including the principles of respect for human rights and freedoms, the rule of law and the separation and interaction of powers, which have been elaborated through the case-law of the Court over the years, including in the context of the importance of the independence in decision-making in the exercise of public functions according to the provisions of the Constitution and the applicable laws.

Based on the foregoing considerations, the Court decided: (i) unanimously to declare the referral admissible; and (ii) with eight (8) votes for and one (1) against, that the Decision [no. 08-V-583] of 13 July 2023 of the Assembly of the Republic of Kosovo on the dismissal of the member of the PRB Board, is not in compliance with paragraph 9 of article 65 [Competencies of the Assembly] and paragraph 1 of Article 142 [Independent Agencies] of the Constitution.