Constitutional Court

The Constitutional Court of the Republic of Kosovo has decided regarding the referrals in cases KO159/21 and KO160/21, with the Applicant the Municipality of Prishtina, which based on paragraph 4 of Article 113 [Jurisdiction and Authorized Parties] has requested the constitutional review of the challenged acts of the Ministry of Local Government Administration and the Ministry of Industry, Entrepreneurship and Trade, namely (i) “The report on the review of legality of the municipal act [no. 020-558/17] of the Ministry of Local Government Administration of 12 July 2021” regarding “confirmation of the legality of the act of the Municipality of Prishtina no. 5133  of the Ministry of Industry, Enterpreneurship and Trade of 9 July 2021”; and (ii) “The report on the review of legality of the municipal act no. 020-558/10 of the Ministry of Local Government Administration of 8 July 2021” regarding “confirmation of the legality of the act of the Municipality of Prishtina no. 6077 of the Ministry of Industry, Enterpreneurship and Trade of 7 July 2021”.

The Court, unanimously, decided to: (I) declare referrals admissible; and to hold that: (II) in case KO159/21 (i) “The report on the review of legality of the municipal act [no. 020-558/17] of 12 July 2021” of the Ministry of Local Government Administration; regarding: (ii) “confirmation of the legality of the act of the Municipality of Prishtina [no. 5133] of 9 July 2021” of the Ministry of Industry, Enterpreneurship and Trade; are not compatible with paragraph 2 of Article 12 [Local Government], paragraphs 1 and 3 of Article 123 [General Principles] and paragraphs 2, 3 and 7 of Article 124 [Local Self-Government Organization and Operation] of the Constitution of the Republic of Kosovo; (III) in case KO160/21 (i) “The report on the review of legality of the municipal act [no. 020-558/10] of 8 July 2021” of the Ministry of Local Government Administration, regarding (ii) “confirmation of the legality of the act of the Municipality of Prishtina [no. 6077] of 7 July 2021”, of the Ministry of Industry, Enterpreneurship and Trade, are not compatible with paragraph 2 of Article 12 [Local Government], paragraphs 1 and 3 of Article 123 [General Principles] and paragraphs 2, 3 and 7 of Article 124 [Local Self-Government Organization and Operation] of the Constitution of the Republic of Kosovo, and as such are declared invalid.

The judgment initially clarifies that on 16 June 2021, the Assembly of the Municipality of Prishtina, by two (2) separate decisions, approved the proposal of the President of the Municipality for the exchange of municipal immovable property with immovable property owned by private persons, for the implementation of the regulation plan “New Prishtina – East”, destined for the construction of the school, garden and green spaces. Based on Article 81 (Mandatory Review of Legality) of Law no. 03/L-040 on Local Self-Government, the decisions were submitted to the Ministry of Local Government Administration (MLGA) for the procedure of checking their legality. MLGA had forwarded them to the Ministry of Industry, Enterpreneurship and Trade (MIET) for the assessment of their legality, while MIET by two separate acts, namely “confirmation of the legality of the act of the Municipality of Pristina” [no. 6077] and [no. 5133] of 7 and 9 July 2021, respectively, notified the MLGA that the acts of the Municipality should be suspended and not produce legal consequences until this issue is addressed by the Interministerial Commission for Strategic Investments defined in the Law on Strategic Investments. As a result, MLGA by two acts, namely “reports on the review of legality of municipal acts”, [no. 020-558/10] and [no. 020-558/17] of 8 and 12 July 2021, respectively, notified the Municipality regarding the notification of MIET, failing to assess the legality of the relevant acts as specifically required by articles 81 (Mandatory Review of Legality) and 82 (The Procedure for the Review of Legality) of the Law on Local Self-Government, also making impossible the financial assessment of the decision of the Municipality on the exchange of immovable property by the Ministry of Finance, Labor and Transfers (MFLT), on the grounds that confirmation of legality was missing of the decisions of the Municipality by the MLGA was lacking.

The Municipality of Prishtina challenged the aforementioned acts before the Court, claiming that they infringe the competences of the Municipality stipulated by Articles 12 [Local Government], 123 [General Principles] and 124 [Local Self-Government Organization and Operation] of the Constitution and applicable laws of the Republic of Kosovo, namely Article 81 (Mandatory Review of Legality) of the Law on Local Self-Government, because MLGA, failing to make the assessment of the legality of the decisions of the Municipality within the legal deadline and notifying it about the suspension of their implementation, had made it impossible for the Municipality of Prishtina to exercise its competences accurately defined by the provisions of the Law on Local Self-Government.

In addressing the allegations of the Municipality of Prishtina, the Court first elaborated on the general principles related to local self-government according to the Constitution, the European Charter of Local Self-Government, the relevant Opinions of the Venice Commission, the laws in force of the Republic of Kosovo, as well as the case law of the Constitutional Court. The Court, based on articles 12, 123 and 124 of the Constitution, among others, reiterated that: (i) the basic territorial units of local self-government in the Republic of Kosovo are the municipalities and their competences are regulated by law; (ii) municipalities have their “own”, “extended” and “delegated” competencies; and (iii) the administrative review of municipal acts by the central authorities in the area of their own competencies shall be limited to ensuring compatibility with the Constitution and the law. Moreover, based on these constitutional articles, the Court emphasized that the activity of local self-government bodies is based on the Constitution and laws and respects the European Charter of Local Self-Government. The latter, among others, and insofar as it is relevant to the circumstances of the present case, determines that: (i) local authorities, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority; (ii) the powers given to local authorities should normally be full and exclusive, and they cannot be undermined or limited by another authority, central or regional, except as provided for by the law; and (iii) any administrative supervision of local authorities may only be exercised according to such procedures and in such cases are provided for by the Constitution or by law.

The Court also reiterated that local self-government is of such importance in the constitutional order that the Constitution: (i) has defined these guarantees, among others, in its Basic Provisions; (ii) has determined compliance with the European Charter of Local Self-Government; and (iii) in order to ensure the protection of these guarantees, in its article 113, municipalities have been given direct access to the Constitutional Court, in a capacity of the authorized parties, to challenge the constitutionality of laws or acts of the Government, which violate municipal responsibilities or reduce the revenues of the municipality, in case the respective municipality is affected by that law or act.

In accordance with the aforementioned guarantees of the Constitution and the European Charter of Local Self-Government, and the reference of the latter in the obligation that these guarantees are also implemented by and according to the applicable laws, the Court recalled that based on Article 17 (Own Competencies) of the Law on Local Self-Government, the municipalities have “full and exclusive” competences in terms of local interest, respecting the standards defined in the applicable legislation, which also includes “land use and development.” The Municipality exercising this responsibility, based on Law No. 06/L-092 on Allocation for Use and Exchange of Municipal Immovable Property, decided to exchange municipal property with immovable property of private persons to achieve a public interest. In this regard, based on Article 81 (Mandatory Review of Legality) of the Law on Local Self-Government, the Municipality of Prishtina submitted two (2) of its decisions to the MLGA for legality review. Articles 81 (Mandatory Review of Legality) and 82 (The Procedure for the Review of Legality) of the Law on Local Self-Government clearly define the term, obligation and procedure to be followed in the context of the review of legality, obliging the supervisory authority, namely the relevant ministry, to assess the legality of the act, the procedure to be followed in case it is assessed that the act is unlawful, enabling the supervisory authority to use legal remedies before the regular courts in the event that the relevant municipality does not review the decision, and also precisely determines that the supervisory authority cannot suspend the execution of municipal decisions. The judgment clarifies that this is exactly the case by the challenged acts of MLGA and MIET.

In this regard, the Judgment emphasizes that only the regular courts have the constitutional and legal duty to order the suspension of the implementation of a decision of the Municipal Assembly in accordance with the applicable legislation. Accordingly, the institutions at the central level are not authorized by the Constitution and the law to suspend the decisions of the Municipal Assembly, making it impossible to continue the legal procedures by the respective Municipality in accordance with the obligations of the Law on Local Self-Government and the Law on Allocation for Use and Exchange of Municipal Immovable Property.

Therefore, in the circumstances of the present case, based on the aforementioned constitutional principles, namely, articles 123 and 124 of the Constitution, according to which, among others, (i) local self-government is guaranteed by the Constitution and regulated by law; and (ii) any administrative review of municipal acts by the central authorities in the area of their competences, is limited to ensuring compliance with the Constitution and the law, the Judgment finds that with suspension of the decisions of the Municipality of Prishtina by the challenged acts, the MLGA and the MIET have not exercised the competence of administrative control in compliance with the provisions of the Constitution, the European Charter of Local Self-Government and the applicable law.