The Ports Amendment and the EU Statement: A Narrower Gap Than It Appears

On April 9, the Albanian parliament passed an amendment to the 2007 law on tourist ports, allowing private investors who hold strategic investor status to build and operate ports without going through the concession procedures the law ordinarily requires. The EU Delegation responded today with a public statement flagging concerns about public procurement compliance and Albania’s accession commitments. The political reaction in Tirana was immediate and predictable. This piece argues that both sides are partly right, and that the gap between them is narrower than it appears.

the Tirana Examiner

When the EU Delegation issued its statement today, the reaction in Tirana split along political lines with unusual speed. The opposition read it as a verdict. The government quietly dismissed it as a misreading of a straightforward facilitation measure. Neither response was particularly useful, and neither was entirely accurate.

The amendment passed with 76 votes from the Socialist majority. In practical terms, it does one thing: a private developer who has obtained strategic investor status from the Committee on Strategic Investments, a body chaired by the Prime Minister, may build and operate a tourist port as part of their investment project without running a separate concession tender. The government’s informal explanation of the measure is direct. A developer who has committed hundreds of millions of euros to a resort project should not be required to conduct a separate competitive procedure to build a marina serving that same development. The port, in this reading, is ancillary private infrastructure, not a public asset being awarded to a preferred operator outside competition. It is closer, the argument goes, to a developer building a private access road to serve their own facility than to the state handing over public infrastructure through a non-transparent process, though ports sit in a more heavily regulated domain than roads and the analogy has limits the Commission will note.

The EU Delegation’s statement identified two specific concerns. First, the amendment appears to conflict with EU concession law, which requires transparent and competitive procedures for the award of concessions including port concessions, and which is part of the acquis Albania is negotiating under Chapter 5 on Public Procurement, one of the most closely monitored chapters in the accession process. Second, the amendment imports provisions from the Strategic Investors Law into a legislative instrument that will outlast that law’s expected phase-out. The abolition of the Strategic Investors Law is tied to Albania’s reform commitments within the accession process, and an amendment that preserves the law’s operative logic in a separate instrument after it is abolished creates what the Commission is likely to treat as a structural workaround, regardless of the merits of the underlying policy. The Delegation noted that Albania should refrain from steps that conflict with those commitments.

The Delegation’s statement is better understood as a technical flag than a political intervention. These are real concerns. They are also, in principle, addressable.

The government’s argument has more merit than the EU statement’s framing suggests, and less merit than the government believes.

Where the government’s logic holds: EU concession law is designed primarily to prevent public authorities from channeling public assets or public contracts to preferred operators outside competitive procedures. Where the beneficiary is a private investor building infrastructure that serves their own private development, using their own capital, on a site they control, the concession directive’s core rationale applies with considerably less force. EU case law and Commission practice have distinguished between genuine concessions, where the operator assumes demand risk on public infrastructure, and private development arrangements that happen to include port facilities. That distinction is not frivolous.

Where the government’s logic runs into difficulty: the Albanian legal framework does not currently make that distinction. The 2007 ports law treats tourist ports as a regulated category requiring concession procedures regardless of ownership model or financing structure. The amendment carves out an exemption based on investor status, not on any objective characterization of the port as private ancillary infrastructure versus public facility. The exemption is categorical rather than criterial. That is where the Commission’s services will focus, because categorical exemptions based on investor classification are precisely what procurement and concession directives are designed to prevent.

The Strategic Investors Law dimension adds a separate layer of procedural risk. An amendment that embeds the operative logic of a law pending phase-out into a separate legislative instrument creates a survivability problem the Commission is likely to flag regardless of the merits of the underlying policy. The mechanism matters as much as the substance.

None of this means the government’s underlying policy objective is wrong. There is a legitimate case that large-scale strategic tourism investments should not face procedural duplication that serves no competitive purpose. The comparison with Croatia is instructive. When Zagreb enacted its new Maritime Domain and Seaports Act in 2023, it introduced for the first time a framework allowing concessions on request for hotels, camps, and tourist resorts, a provision designed precisely to accommodate integrated resort and marina developments within EU procurement principles rather than around them. Croatia built the criteria into the law. It did not carve out a categorical exemption. That is the difference between a solution and a workaround, and it is the difference the Commission will be looking for in any corrected Albanian text.

What a technically sound resolution looks like is not complicated in principle. The amendment would need to establish objective, publicly stated criteria under which port facilities qualify as private ancillary infrastructure rather than public concessions subject to the directive. It would need transparency and proportionality safeguards demonstrating that competitive principles are respected even where a formal tender is not required. And it would need to accomplish this without importing the Strategic Investors Law framework wholesale.

That is a drafting and a communications problem, not a policy problem. The government’s objective and the EU’s legal requirements are not fundamentally incompatible.