The Constitution says the final word: Serbs in the north get electricity

More precisely, the Constitution has clarified that the ruling does not constitute violations of Kosovo's highest judicial act of the state.

The Constitution's full decision:

The request in question was submitted by 13 Kosovo Assembly deputies.

At the end of its decision, the court has given four findings that you can read below.

The Constitutional Court of the Republic of Kosovo reviewed the motion, submitted by Blerta Deliu-Codra and 12) other deputies of the Republic of Kosovo Parliament, in which it was asked to become an assessment of the constitutionality of the Republic of Kosovo's [Nr.08-R-01] Assembly recommendations on May 6th, 2021.

Under the circumstances of this case, the Court has assessed the constitutionality of the recommendations. 08-R-01 of May 6th, 2021, of the Republic of Kosovo Parliament, based on the request set forth at the Court by 13th (13) the Parliament's deputies under authorisations defined with Article 113 [Jurisdiction and Authorised Pals] of the Constitution. In assessing the constitutionality of the controversial Assembly Act, the Court unanimously ruled that (i) demand is acceptable; (i) The contested action of the Parliament, May 6, 2021, is in compliance with paragraphs 1, 5 and 14 of Article 65 [Comits of the Assembly] of the Constitution of the Republic of Kosovo; (ii) The contested act of the Assembly, May 6, 2021, is in accordance with Article 24 [Prevention Before the Law] in connection with Article 55 [Recognition of Foundation Rights and Freedoms] of the Constitution of the Republic of Kosovo and Article 1 (General Banning of Discrimination) of Protocol No. 12 of the European Convention on Human Rights; (iv) refuse to apply for the Interim Mass; and (v) to reject the hearing request.

(i) The act of request

The court first explains that the object of constitutional assessment in this case is only the constitutionality of the contested Assembly Act, May 6, 2021, with which the KO is authorized The STT to cover electricity deviations in four (4) municipalities of the Republic of Kosovo, exploiting revenues from its own budget, means that will be compensated “by dyvinda or any other possible” mechanism; and (ii) has been imposed on the Government of Kosovo, which within six months' time (six) ensures the entire process of entry into the billing system, according to rules and laws in power, in co-operation with responsible parties, for the luck of consumers in four respective municipalities with electricity.

The court, in this context, also points out that prior to this context, there are no (i) laws, decisions and other acts of public authorities, which have been issued prior to the adoption of the conflicted Assembly Act and which constitute the legal basis of the exercise of the Parliament's competencies, as well as the legal authorisations of other state authorities in relation to the Public COST Company; and neither (ii) the decisions of regular courts, as a result of the procedures developed under the ombudsman's indictment, which connect with the Constitutional Office of the February 6, 2012, whose search for direct coverage of the municipalities in Kosovo's four different energy municipalities, or other energy bills, are in addition to the three different energy municipalities.

The court further explains that, based on the documentation accepted by interested parties, as a result of the failure to reach electricity consumers in four (4) municipalities in the Republic of Kosovo, the electricity losses have been recorded “as Kosovo's deviation to the continental European system”. Following the abolition of the GREE Supreme Decision and until April 2021, these losses, respectively, are covered by the Kosovo Republic of Kosovo's budget. With the aim of balancing the electronic system and covering relevant deviations for the following period, as defined in the applicable laws of the Republic of Kosovo, and specifically as a result of the start of implementing the ECSO-E Agreement, the European Network of Operators of Electrical Energy System, as the body of the continental European Regional Group, the Public Company Koo. The STT has turned to the Kosovo Assembly, respectively, the Functional Commission for Economics, Industry, Undertaking and Market on demand that, among other things, provide financial means for covering losses in four (4) municipalities in the Republic of Kosovo for the period April 2021.

In this respect, the Court, based on paperwork submitted by COSTS and ZREE, explains that on December 14, 2020, implementation of the COSTST Agreement with ENTSO-E has begun. The ENTSO-E Agreement has preceded ratification of the International Agreement between the Republic of Kosovo and the Republic of Albania on 30 March 2017, which has enabled the formation of the common regulatory bloc, known as the Regulatory Block. He has enabled the Kosovo Republic (i) to gain energy independence from Serbia, Montenegro, Northern Macedonia; (ii) to operate as an independent regulatory zone within the Block - The AK, within the Sincroan area of continental Europe; and (ii) the recognition of Europe's energy maps, recognizing the sovereignty of the independent regulatory zone in the electromagnetic system of continental Europe. In exchange, Kosovo institutions have pledged, among other things, that (i) to ensure the balance of the electromagnetic system within its regulatory zone by addressing the consequences of corresponding losses/delinements; whereas, in the event of breaching obligations stemming from this agreement, the Republic of Kosovo will face (i) financial punishment; and (i) reviewing COST status within ENT-E.

As a result, on May 6, 2021, based on the recommendation of the Economics, Industry, Intervention and Trade Commission, according to COST “for the provision of financial means for the coverage of losses”, Kuwait, beyond specific requests for COST report, ruled that (i) the “is authorised to the KO. The STT to cover electricity deviations in the country's four municipalities (North Mitrovica, Leposaviq, Zubin Potok and Zvecan), according to the settlement presented and approved on the operational commission using its own budget revenues, tools that will be compensated by dyvinda or any other possible mechanism (4)x3>; and (ii) the Kosovo government, which within six months' term (6)), ensures all the process of access to the billing system, and power co-operation with the parties responsible for the four television municipalities in Kosovo's Republika Srpska (Kosovo), Kosovo's PodCHOCHOCHOCHDZCH, Z5HB).

(ii) Both claims

Thirteen deputies of the Republic of Kosovo Assembly have rejected the constitutionality of this Assembly Act. Predators first claim that, despite the fact that the contested Assembly Act is entitled “Recommation”, the same is the decision of the Parliament with legal consequences and therefore must submit to the control of constitutionality, as defined in Article 113 of the Constitution. Second, the petitionors claim that the contested Act of the Parliament has been challenged by the Constitution as a result of the procedure followed, but also its contents. In terms of procedure, petitionors, in essence, claim that the contested Assembly Act is contrary to paragraph 5 of Article 65 of the Constitution, because it has been issued without legal basis, stressing, among other things, that such a decision can be made only through the Law on Budget or Compliance. While, in terms of the contents of the controversial Assembly Act, petitionors stress that the same is contrary to Article 3 and 24 of the Constitution regarding Article 14 (Criminal Banning) of the European Convention for Human Rights and Article 1 (U.S. General Prevention) of the Convention Protocol No.12, because in discrimination against electricity consumers who do not live in the top four (4) municipalities, through the Controversial Act of the Parliament, it has been authorised to cover electricity deviations for electricity consumers living in four (4) relevant municipalities in the Republic of Kosovo. Predators of demand, in fact, do not object to the COST Public Enterprise's obligation to cover electricity evasions in these four (4) municipalities until the same is introduced into the power billing system under the laws in power in the Republic of Kosovo. However, the same contests the procedure through which the contested Act has been issued, claiming simultaneously that covering these blackouts in the respective municipalities constitutes discrimination in the sense of Article 24 of the Constitution and relevant provisions of the European Convention on Human Rights.

Comments and answers to the Court have also delivered (i) the Parliamentary Group of Vetevendosje Movement; (ii) the Ministry of Economy; (ii) Z RE; and (iv) COSTT. The answers to the Court have also delivered relevant Assembly Commissions, the Commission for Legislation, the functional Commission for Economics, the Commission for Business, Work and Transfers, as well as the Commission for Public Finance Supervision, respectively. In essence, comments handed down to the Court claim that the controversial Assembly Act (i) is Recommandation rather than the Parliament decision, and therefore the same cannot be subject to the control of constitutionality, and therefore, the request of the petitionors should be declared unacceptable for the court's credit; (i) The contested act of the Parliament has been issued based on Article 2 article 13 (Compern Governance, Capacity, Report) of Law No. 05L-085 for Electric Energy, based on which the Parliament is the sole shareholder of the COST Public Company; (ii) the COSTT's obligation to cover electricity deviations in four (4) municipalities of the Republic of Kosovo, is defined with Article 16 (the obligations and responsibilities of the Transmission System) Electricity Law and Article 5 (Compensation for Loss in north of Kosovo) of KOST Literature, respectively. ZREE/Li 15/17, of April 13th 2017] and more, in accordance with obligations undertaken for the ENTSO-E Locking Agreement; and that (iv) the controversial Assembly Act is in public interest because it is related to Kosovo's energy sovereignty according to obligations stemming from the ENT-EA Agreement.

(i) Access to demand

In assessing the constitutionality of the contested Assembly Act, the Court initially praised the claims of applicants and corresponding responses of interested parties, in terms of the nature of the contested Act. The court in this regard found that the controversial Assembly Act enters the scope of the “decision of the Parliament”, as defined in Article 113's paragraph 5 of the Constitution, and therefore the demand is acceptable for consideration at merit. This, among other things, and based on the clarifications given to the Act of Justice, because (i) the corresponding decision of the Parliament has been adopted by majority vote of the Parliament's deputies; and (ii) has legal effects on KOSTT and Government of the Republic of Kosovo. Moreover, the Court through its already consolidated judicial practice has stressed that the decision-making of public authorities would be left out of constitutional control, if the Court were based only on formal/terminology labeling which the same toʹia has determined the respective acts.

In reviewing the merits of the case, the Court (i) focused on assessing the constitutionality of the constitutionality of the controversial Assembly Act, respectively, whether with the extraction of this Act, the Assembly (i) has acted on (incompatible with its competence of constitutional decision-making and by law; and (ii) has limited the fundamental rights and freedoms of electricity consumers who do not live in the four (4) municipalities of the Republic of Kosovo, contrary to the 24 Constitution on Article 14 of the European Convention on Human Rights and the 1st Protocol. Twelve of this Convention.

(iv) The Constitution of the procedure

As for assessing the constitutionality of the procedure followed, the Court first explained (i) the competencies and responsibilities of the COST Public Company; (ii) the obligation of COST for balancing the energy system and covering the deviations of the electricity; (ii) the rights and obligations of COST in relation to the Key Agreement with ENTSO; (iv) the constitutional and legal competencies of the Assembly for adoption of the Law for Public Finance and responsibilities; (iv) Following the procedure in the country's related to the execution of the Acct, the Court finds that the prosecution is in the condition of 65.

In support of this arrangement, the Court stressed that (i) based on paragraph 1 of Article 65 of the Constitution, the Parliament approves laws, resolutions and acts; (i) based on paragraph 14 of Article 65 of the Constitution, the Parliament sets down “on issues of general interest defined by law”; (ii) on the exercise of its legally defined competencies, respectively, based on paragraph 2 of Article 13 of the Law on Electric Energy, the Parliament of the Republic of Kosovo exercises the right of action (KTST) to more than that, based on the 13th paragraph of the Law, KOCS is functioning in the Public Commission. L-087 for Public Enterprises and relevant legislation in force; (v) based on Article 4 (Actions) of Law No. 03L-087 for Public Enterprises, these are organized as action societies, in accordance with the law in power for commercial societies; and that (vi) based on Article 151 (The Plan for the Authorisation of the Devides) Law No. 06/ L-016 for Trade Companys, among other things, the decision to authorise and pay dividers can be made by shareholders.

Based on the above, the Court explained that in the extraction of the contested Assembly Act, among other things, it had authorised the COST to cover electricity deviations in four (4) municipalities “by exploiting revenues from its own budget, these means that would be compensated by divided or any other possible mechanism” and that this decision had been issued (i) by exercising its competence as a representative of the KOTT Public Company; and (ii) in the exercise of action, with which it had decided on KOTSKSI, while this decision had been issued (i) by exercising its competences as a task force of the command of the country's command, as it is based on the command of the Government's command, and the command of the command of the command of the Commission, as it is to the command of the command of the command of the command of the UN's command of the Government, the 1st government, as it is to the Constitutional command.

(v) Content Constitution

As for the assessment of the constitutionality of the contested Assembly content of the Assembly, the Court first clarified general principles regarding the guarantees of Article 24 of the Constitution, Article 14 of the European Convention on Human Rights and Article 1 of Protocol No. 12 of this Convention, stressing that Article 24 of the Constitution regarding Article 1 Protocol No. 12 of the European Convention on Human Rights extends protection against discrimination even regarding any right established by law. Next, the Court expounded general principles based on its judicial practice and that of the European Court of Human Rights, explaining that to ascertain whether an act may have resulted in discrimination contrary to the guarantees of these articles, it must first be assessed whether the relevant act has dealt in a different way “individuals in analogic or relatively similar situations of”, and if this is the case, to assess whether this in the treatment (a) is defined by law; (b) pursues a legitimate and (c) proportional order, respectively, if there is a relationship between the strictness of the right and the goal that is achieved.

In the upper context, the Court initially found that, in concrete circumstances, in the sense of legal provisions pertaining to consumers of electricity in the Republic of Kosovo, consumers in all municipalities are in “ilog or relatively similar”. While in assessing the gap in treatment, the Court stressed that, as a result of failure to pay electricity to consumers in four (4) municipalities in the Republic of Kosovo, electricity consumption in these four (4) municipalities has been registered as a deviation. To that end, COSTT has requested the allocation of budgetary means aimed at procurement of electricity for covering deviations in four (4) municipalities of the Republic of Kosovo. Moreover, based on the contested Assembly Act, it results from authorisation of the KOSTT from the Parliament for covering electricity deviations due to the failure of the consumers of the Republic of Kosovo's four (4) municipalities to begin implementing the process of introducing electricity consumption to consumers of these four (4) municipalities, these latter enjoy a different treatment from the consumers of other municipalities in the Republic of Kosovo. As a result, the Court found that the controversial Assembly Act results in contrast with treatment between consumers living and not living in four (4) municipalities of the Republic of Kosovo.

The court, however, stressed that, the difference in treatment among persons in “analog or relatively similar”, based on the European Court of Human Rights's judicial practice, results in discrimination contrary to the guarantees of Article 24 of the Constitution regarding Article 1 of Protocol No. 12 of the European Convention for Human Rights, only if the relevant act of public authority does not include “an objective and reasonable excuse”. Therefore, the assessment if the treatment gap is (a) defined in the law; (b) follows a legitimate purpose; and (c) is proportional, it is necessary.

First, the Court found that differences in the treatment of electricity consumers in four (4) municipalities in the Republic of Kosovo are “defined in law”. That's because (i) based on Article 16 (the tasks and responsibilities of the Transmitting System Operator) of the Electric Energy Law, COST has the obligation to balance the power system in line with the network code and market regulations; (i) based on Article 19 (Electrical Energy Procuration and capacity from the Transmitting System Operator) of the Electric Energy System, among other things, COSTT has the obligation to cover losses in the power transmission network and we based on the 28th. (KOST is responsible for providing electricity coverage of losses in the distribution network, among other things. While, based on Article 10 (Operator of the Broadcasting System) of the Electric Energy Law, the transmission system operator holds the transmission system in office and is responsible for operating this system in accordance with the license issued by the regulator. Based on COSTT's Licence, Article 5, respectively, its North Kosovo Loss Procession has been specifically determined by the COSTT's ability to provide “electricity to compensate for losses resulting from energy used but not paid, from consumers in northern Kosovo. ”

Second, the Court found that differences in the treatment of electricity consumers in four (4) municipalities in the Republic of Kosovo follow a legitimate “legitimate goal”. This is because the controversial Assembly Act aims: (i) the exercise of sovereignty in the electromagnetic system with all the rights and obligations defined with the ENTSO-E Agreement; (ii) the preservation of the energy independence of the Republic of Kosovo; (ii) public interest in ensuring electricity supply throughout the territory of the Republic of Kosovo; (iv) interest in preserving and empowering KOST's status in the international mechanism, respectively, the ENTOS Agreement, which has enabled this company to operate as the Independent Union's office within the Independent Order. - AK with the Republic of Albania within the continental European Sinc area; (v) preventing financial punishment from ENTSO-E, as a result of failing to meet the balance on the energy network system or avoidances in the KOSTT energy system; and (vi) preserving COST status in this mechanism and achieving it as an equal member of all transmission operators at the ENT-E.

Third, the Court found that differences in the treatment of electricity consumers in four (4) municipalities of the Republic of Kosovo, through the contested Act, are <x0-probutal”, respectively, the conflicted Assembly Act includes a reasonable proportional report between the undertaken move and the followed goal. This is because the controversial Assembly Act (i) at point 4 has defined the authorisation given to the KOST Public Company for covering electricity deviations in four (4) municipalities of the Republic of Kosovo; whereas (ii) at 5th point has determined the Government's obligation, “within six months' term (6) to ensure the entire process of entry into the billing system under rules and laws in power in co-operation with the parties responsible for billing consumers (4)x3> in four municipalities in the Republic of Kosovo. Therefore, the Court stressed that the contested Assembly Act, respectively granted COSTT authorisation for covering electricity losses, has temporary character and targets the process of entry into the billing system for electricity consumers in four (4) municipalities of the Republic of Kosovo.

Consequently, and ultimately, the Court found that the extraction of the controversial Assembly Act has resulted in contrast with the consumers of electricity that do not live in four (4) municipalities of the Republic of Kosovo, however, this distinction in treatment has an objective and reasonable “ -- x1> and therefore, does not result in discrimination, because (a) it is legally defined; (b) it has followed a legitimate purpose; and (c) is proportional, and therefore, has not been introduced in in in noncompatible with us and 24 conditions in connection with the 1st European Convention for Human Rights.