Competencies and Concessions: Is Sarajevo Canton encroaching on state property?

By: A. Čorbo-Zećo

The Sarajevo Canton Assembly boasted yesterday about the adopted laws, and emphasized the importance of adopting several significant solutions, including amendments to the Law on Concessions.

This law defines who is exempt from the obligation to sign a concession agreement for the subject of the concession, so that the Canton, the City of Sarajevo, a municipality within the Canton, a public institution, and another legal entity that is a budget user and whose founder is the Canton, the City of Sarajevo, or a municipality within the Canton are exempt from the obligation to sign a concession agreement for the subject of the concession.

It has been determined who and when adopts regulations on concession fees from specific areas, with the consultation of local communities on the subject of the concession.

However, the question arises whether the adoption of the Law on Amendments to the Law on Concessions by the Sarajevo Canton Assembly is in legal conflict with the decision of the Constitutional Court of BiH regarding the Vareš case.

We remind you that the decision concerned the disposal of state property at the federal level, while the legislative initiative in Sarajevo Canton is aimed at regulating concessions within the framework of cantonal competencies.

The Constitutional Court of BiH, in a previous ruling, determined that the Government of the Federation of BiH made a decision to change the purpose of forest land in Vareš without the consent of the Parliamentary Assembly of BiH, which is contrary to the Constitution of BiH.

Therefore, without the titular owner, there are no adequate solutions, nor can lower levels of government do so.

However, legislative activities at the Sarajevo Canton level, such as the adoption of the Law on Amendments to the Law on Concessions, do not fall under the jurisdiction of the Constitutional Court of BiH, unless they relate to state property or violate constitutional provisions at the state level.

Therefore, care must be taken that the legislative initiative in Sarajevo Canton does not conflict legally with previous decisions of the Constitutional Court of BiH.

A possible conflict will arise if the subject of the concession relates to state property, e.g., forests, waters, mineral resources, which are the responsibility of the state.
Also, if cantonal bodies, exempted from concession agreements under this law, begin to dispose of state property without the consent of state institutions, it would be a direct violation of constitutional provisions and the case law of the Constitutional Court of BiH.

Everything must be carefully implemented to avoid legal conflict with the decisions of the Constitutional Court of BiH, especially regarding the disposal of state property. Otherwise, there is a risk of legal nullity of certain decisions, as well as possible constitutional appeals.