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What do a highway and the constitution have in common? In Poland and Croatia, more than you might think.by Martin Ehl 9 July 2013
Highways in Central Europe are not a politically and economically neutral topic, especially when the price for their construction per kilometer is compared with the much cheaper highways in the West. But only a few of the people who head off to use them on holiday usually think about them in their full political magnitude. Until they hit their first toll both or have to buy a travel pass, the validity of which is exactly one day shorter than necessary for the journey back home from vacation.
For such a moment we present two examples of innovative legal thinking about highways and their funding. The first comes from Poland, which has 1,342 kilometers (834 miles) of motorways and 1,106 (687 miles) of expressways. There, a lawyer from the western town of Poznan, Arthur Iglinski, got engaged in a debate over why part of a new motorway around Wroclaw was exempt from tolls. And the second example hails from Croatia, with 1,273 kilometers (791 miles) of highways. There, unions from the companies that manage local highways have vowed to push for a referendum that would block a government plan to lease out – de facto privatize – the highways.
First, the story of Poland. The legal basis for collecting tolls on motorways is a 1994 law on the charging of fees for highways and on the national highway fund. But as lawyer Iglinski found when he started looking into how easy it was to exempt a piece of highway from the toll system, various implementing regulations for this law still have not been promulgated. Which led him to conclude, “If the law has no implementing regulations, it has been issued on an unconstitutional basis,” according to the Polish daily Gazeta Wyborcza.
It is therefore possible that Polish and foreign drivers (this writer was among them last week) have been paying tolls on Polish highways in conflict with the constitution. That interpretation has been rejected by the Polish General Directorate for National Roads and Motorways, which claims that some other provisions can be interpreted as implementing regulations for the law.
However, only a court can determine the constitutionality of regulations concerning the private or public operation of highways in Poland, and so far, no one has filed a lawsuit about tolls. When it comes to regulations, the Polish Constitutional Court has been quite conservative, so some constitutional lawyers are not ruling out the possibility that it would rule against the government.
The plan of the Croatian government to lease long-term its highways to private entities could also end up in a legal thicket. The indebted government would like to make about 3 billion euros ($3.85 billion) in this way. Originally it thought that a lease for 30 years would be enough. A consulting firm hired by the government contacted 60 potential interested parties – including insurance companies, infrastructure and pension funds, and banks. Half were interested but want leases of 40 to 50 years.
The decision about whether to rent the highways should be made by mid-August, with the process of selecting the operators then lasting roughly a year. But the trade unions of the state companies that manage the highways have come out against the move. Trade unions in the former Yugoslavia are strong players that in the days of socialism shared in management decisions. Now the unions have given the government an ultimatum: if officials don't back off the planned leasing, then the unions will agitate for a referendum that would prevent it.
The unions argue that highways are owned by all the country's citizens and are developmental, not commercial, projects funded by the taxpayers. The referendum question should then sound something like this: “Do you agree that the government, without the consent of the people through a referendum, should be prevented from leasing and monetizing strategic state real property (highways, shipping channels, waters, forests)?”
For the calling of a referendum, which could take place in the autumn, the unions would need to collect about 450,000 signatures – about 10 percent of the population – over 15 days. The interpretation of this condition could itself lead to a number of legal disputes.
“Surveys show that 70 percent of the population is against giving highway concessions to foreign companies, so I think we can easily collect more than enough of the necessary signatures,” Mijat Stanic, chairman of the road and highway workers union, told the daily newspaper Vecernji list. The unionists also argue that the new operators will increase the already-high tolls and won't solve the problems of the indebted government-owned companies that now manage the highways.
That the construction of highway is a source of “black funds” for businesses, politicians, and political parties (and therefore a subject of corresponding lawsuits and police investigations) is something we are somehow already used to in the post-communist world. But that highways would manage to take the time of constitutional lawyers? That's a real novelty this summer.
#PragueMediaPoint Conference for journalists, media professionals, and scholars
The 2019 edition of Prague Media Point will highlight these types of inspiring examples and more. We will offer a mix of scholarly presentations, including keynote addresses; sessions with innovators explaining their solutions; and networking opportunities to promote the exchange of know-how. As in years past, the conference will have a special regional focus on Central and Eastern Europe, though we look forward to covering cases and trends from other parts of the world. – WHAT’S WORKING
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