Tomislav Đorđević

Tomislav Đorđević’s lawsuit against the Agency for Privatisation

In September 2009, Tomislav Đorđević filed a lawsuit against the Privatisation Agency, to modify or terminate the Contract for the sale of social capital of Ribarsko gazdinstvo. Tomislav asks that the purchase price is amended due to changed corcumstances or that the agreement is terminated and his payments are returned, since with the termination of the contract the agency reposesses all the shares of Ribarsko gazdinstvo sold to Tomislav.

Namely, after conclusion of the privatisation contract, the Commercial Court in Užice ruled that 76.24% of the fish farm Perućac, the only production capacity of Ribarsko gazdinstvo, is awarded to the Republic of Serbia and its operation granted to the Municipality of Bajina Bašta.
The dispute, which was initiated 10 years ago prior to the privatisation was completed in an incredibly expedited proceeding up to the Supreme Court’s decision on revision.

Thus, the Republic of Serbia re-acquired ownership rights to the fish farm, which was previously sold by the Agency on behalf of the state to Tomislav. Ribarsko gazdinstvo was left without a single production part, which prevented production activity and withdrew the means to a substantial part of the company’s income.

After that, Tomislav filed a lawsuit to modify or terminate the privatisation contract, because it was certain that under the new circumstances, the enforcement of the agreement in its original form would be unfair and impossible.

By then, Tomislav had paid two instalments of the purchase price and fulfilled the contractual investment obligation, and in June 2009 he informed the Agency in writing of his intention to pay the third instalment after contractual obligations and the real state of the company were brought in line with the current situation and the real state of the company.

During the litigation, at the end of December 2009, the Agency sent Tomislav a notice of termination due to his failure to comply with the privatisation contract for Ribarsko gazdinstvo.

The verdict of the Commercial Court in Belgrade on 29 April 2010 rejected the claim of Tomislav Đorđević.

Tomislav Đorđević appealed to the Commercial Court of Appeals in Belgrade. The Commercial Court of Appeals rejected the appeal on 5 May 2011.

On 21 June 2011 Tomislav Đorđević filed for revision and submitted his appeal to the Constitutional Court. The Supreme Court of Cassation denied the request for revision on 22 March 2012.

Tomislav Đorđević submitted a new constituonal appeal on 27 July 2012.

On 30 November 2012 Tomislav Đorđević submitted application to the European Court of Human Rights in Strasbourg regarding the privatisation of Ribarsko gazdinstvo.

Complete documentation of this dispute can be downloaded here (in Serbian only).

The constitutional appeal of Tomislav Đorđević

In January 2010 Tomislav Đorđević filed a complaint with the Constitutional Court against:

• The decision of the Privatisation Agency on the transfer of capital of Ribarsko gazdinstvo to the Share Fund
• The decision of the Privatisation Agency on transfer of own shares of the subject of privatisation Ribarsko gazdinstvo to the Share Fund
• Failure of the Central Securities Registry to take action in accordance with the Constitution
• The actions of the Central Securities Actions – the enforcement of above decisions contrary to the Constitution

On 14 November 2011 the Constitutional court refused the petition, on the grounds that the petitioner had not exhausted all pior legal remedies, neglecting the fact that such a proceeding is impossible before regular courts, and the constitutional appeal represents the only legal remedy available.

Motions to assess conformity with the Constitution filed by Tomislav Đorđević

In February 2010 Tomislav Đorđević filed a motion to assess conformity with the Constitution of the following provisions of the Law on Privatisation:

• Article 17:
  Shares acquired by the buyer in new issues arising from increasing the capital of the privatisation entity during the execution of contractual obligations, are considered to be own shares of the subject of privatisation that are fully paid for.”
• Article 29:
  “The privatisation process initiated before the entry into force of this law shall continue according to the provisions of this law.”

On 24 October 2011 the Constitutional court denied the motion for initiating proceedings to determine conformity with the Constitution.

In February 2010 Tomislav Đorđević filed another motion to assess conformity with the Constitution of the following provisions of the Law on Privatisation:

• Article 5, paragraph 3:
  “In exercising supervision over the procedures of privatisation, in terms of privatisation regulations, the Agency shall verify: the estimated value of capital or assets subject to privatisation; conformity of the privatisation or restructuring programme with the regulations, conformity of the inflow of funds from the sale with the sale contract to which the Agency is a party, and the transfer of shares to employees. “
• Article 41a, paragraph 3:
  “In the event of cancellation of the contract of sale of capital or assets because of the buyer defaulting on his obligations, the buyer of capital, being a party acting in bad faith, shall not have the right to recover the amount paid on account of the contract price, for the sake of protection of the public interest.”

This initiative to assess conformity with the Constitution has not yet been reviewed.