Unblocking the State Property Commission to Speed Up the Resolution of the Southern Interconnection

By Dr. sc. Amir Šelo, legal expert

Given that the Parliamentary Assembly of BiH has not passed a law regulating state property, the High Representative for BiH has issued decisions that have proclaimed and repeatedly amended and supplemented the Law on the Temporary Prohibition of Disposal of State Property of BiH and entity laws on the temporary prohibition of disposal of state property. The aforementioned laws have created a legal framework for temporary protection against potential damage that could arise from the disposal of state property.

Exemptions from the temporary prohibition of disposal of state property of BiH relate to:
1. Property and rights of companies, registered as such, which are subject to privatization
under the Framework Law on Privatization of Enterprises and Banks in BiH ("Official Gazette of BiH", no. 14/98 and 14/00) and valid regulations enacted based on it;
2. Part of the state property that will continue to be used for defense purposes, based on and in accordance with Articles 71-74 of the Law on Defense of BiH ("Official Gazette of BiH", no. 88/05);
3. State property that the State Property Commission, upon the proposal of an interested party, exempts from the temporary prohibition of disposal.

Given that entity laws on the temporary prohibition of disposal of state property are also in force, the following property is additionally exempted from the temporary prohibition of disposal of state property in the Federation of BiH:
1. Property and rights of companies, registered as such, which are subject to privatization as defined by Article 1 of the Law on Privatization of Enterprises ("Official Gazette of the Federation of BiH", no. 27/97, 8/99, 45/00, 61/01, 27/02, 33/02, 28/04 and 44/04), and which are currently determined or will be determined as an integral part of the approved active balance sheet of companies, as regulated by the Law on the Initial Balance Sheet of Enterprises and Banks ("Official Gazette of the Federation of BiH", no. 12/98 and 40/99) and the Decree on the Methodology for Preparing the Privatization Program and Initial Balance Sheet ("Official Gazette of the Federation of BiH", no. 10/98, 26/98, 49/99 and 40/00), as well as property and rights that are subject to small privatization;
2. Property that is subject to sale according to the Law on the Sale of Apartments with Tenancy Rights ("Official Gazette of the Federation of BiH", no. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 56/01, 61/01, 15/02 and 54/04).

In the Republika Srpska entity of Bosnia and Herzegovina, the following property is exempted from the temporary prohibition of disposal:
1. Property and rights of companies, registered as such, which are subject to privatization as defined by Article 1 of the Law on Privatization of State Capital in Enterprises in Republika Srpska ("Official Gazette of Republika Srpska", no. 24/98, 62/02, 38/03 and 65/03), and which are currently determined or will be determined as an integral part of the approved active balance sheet of companies, as regulated by the Law on the Initial Balance Sheet in the Process of Privatization of State Capital in Enterprises ("Official Gazette of Republika Srpska", no. 24/98);
2. Property that is subject to sale according to the Law on the Privatization of State-Owned Apartments ("Official Gazette of Republika Srpska", no. 11/00, 20/00, 18/01, 35/01, 65/01, 47/02, 65/03, 03/04, 70/04 and 2/05).

In 2004, the Council of Ministers of BiH adopted the Decision on the Establishment of the Commission for State Property, Determination and Distribution of State Property, Determination of Rights and Obligations of BiH, Entities, and Brčko District of Bosnia and Herzegovina in the Management of State Property. The aforementioned Decision has been supplemented several times to extend the mandate of the Commission.

According to Article 4a of the Decision on the Establishment of the Commission for State Property, the Commission may, upon the proposal of an interested party, decide on the exemption of certain state property from the prohibition prescribed by the laws on the temporary prohibition of disposal of state property at the level of BiH, the Federation of BiH, and Republika Srpska. The State Property Commission is not an organ that makes decisions on the disposal of state property, but it can, upon a specific request, allow an exemption from the prohibition of disposal.

The State Property Commission consists of 11 members, who are appointed on behalf of the following institutions: the Cabinet of the Chairman of the Council of Ministers of BiH, the Ministry of Justice of BiH, the Ministry of Finance and Treasury of BiH, the Legal Counsel of BiH, the Federal Ministry of Justice; the Federal Legal Counsel, the Federal Administration for Geodetic and Property-Legal Affairs, the Ministry of Justice of Republika Srpska, the Legal Counsel of Republika Srpska, the Administration for Geodetic and Property-Legal Affairs of Republika Srpska, the Government of Brčko District of BiH.

The current composition of the Commission has not been filled by the competent institutions. Since it is undisputed that there is a blockade in proposing representatives of certain institutions to the State Property Commission, there is no need to "reinvent the wheel".

The State Property Commission of BiH should be filled by the competent institutions, and its operational work can contribute to resolving current issues of exemption from the prohibition of disposal of state property, even in the case of the large American investment concerning the Southern Interconnection.

Therefore, a part of the American plan in operationalizing the issue of the Southern Interconnection should also be transferred to the domain of unblocking the State Property Commission, as the best solution regarding exemption from the prohibition of disposal of state property.