Contractual Preconditions Regarding the Commencement of the Development of Hellinikon
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According to the Contract, the development of Hellinikon (Metropolitan Pole of Hellinikon-Agios Kosmas), will commence once the Hellenic Republic Asset Development Fund (HRADF) transfers the shares in HELLINIKON S.A., which has the right to develop the Metropolitan Pole, to the Investors. This transfer, however, depends on a series of conditions which, once met, will in effect mark the point in time when the Pole will be ‘ready’ for development, and the Project will start without any further delays or setbacks. These conditions are as follows:
- The Ratification of the Contract by the Hellenic Parliament
Ratification of the Contract by the Hellenic Parliament ensures and confirms that this very important development has the approval and consent of not just the executive authority or the government in power, but of the legislature and politicians in general.
The Contract was in fact ratified by the Parliament in September 2016 with a broad majority (with more than 260 Deputies voting in favour of it) and acquired the force of law. The ratifying law (Law 4422/2016) was published in the Government Gazette 181/A/27.9.2016, thereby providing the project with greater transparency and offering the public more comprehensive information.
2. The Approval of the Integrated Development Plan by Presidential Decree
An issue of vital importance for enabling works to begin is the urban-planning maturity of the Property, so that both the development potential and the restrictions on development are all known from the outset.
The first step to achieve that, wasthe approval of the Integrated Development Plan (IDP) by means of a Presidential Decree on March 2018,, which first underwent examination by the Council of State.
Among the documents accompanying that Plan is the Strategic Environmental Impact Study, which, according the law, was published and submitted for public consultation. At the same time, the Ad Hoc Experts Committee specified in Law 4062/2012 and the Central Administration Council for the Exploitation of Public Property, comprised of the Secretary – Generals of all Ministries involved, expressed an opinion on the Plan.
Therefore, the approval of the IDP via a Presidential Decree. was preceded by extensive scrutiny of all parameters by both the public administration and the judiciary administration. It should be noted that the Investor’s Master Plan was actually submitted to HRADF and was approved during the tender process. However, after the Contract was signed, the Greek State requested for specific points, and specific issues relating to urban planning law to be amended. So, after the Amended Agreement was signed in July 2016, a partial re-planning was required. The IDP was submitted to HRADF to be checked for completeness in December 2016 and was re-approved in February 2017. However, final submission could not be made before the administrative issues which still existed at that time were resolved. To accelerate the process, even though the specific issues had not been resolved -which is very likely to impact the overall ability to implement the development plan-, the IDP was submitted for approval in June 2017 and was approved within 8 months of the submission date.
Against the Presidential Degree three applications for cancellation were submitted, two of them were rejected by the Council of State, while a third is expected to be issued
3. Approval of the urban planning studies by means of Joint Ministerial decisions
In effect this is the second crucial step in achieving urban-planning maturity for the Property. Once the urban planning studies are approved, the building blocks will have been worked out and issues affecting the development and restrictions on development will be known, as well as the conditions for the protection of the natural and cultural environment.
The precondition for the issuance of these JMDs was the issuance of the Joint Ministerial Decision on the “Metropolitan Park” defining the areas of green areas, park lands, water elements, the network of pavements and cycle lanes ect. Indeed, it was issued the no. 74502 EX 2019 / 3-7-2019 NTUA (2792 B ‘) JMD of the Ministers of Finance, Culture and Sport, and the Ministers of Environment and Energy (“Approval of the general organization of the Metropolitan Park of the Metropolitan Pole of of Hellinikon – Agios Kosmas and its environmental conditions’), which was subsequently amended by No. 93298 EX 2019 / 28-8-2019 JMC (Government Gazette 3294 B).
Subsequently, the two JMDs for the Project Development Zones, issued as follows:
1) for the Development Zone in the area of the former airport and related to the casino licensing competition, JMC no. 93620 EX 2019 / 29.08.2019 – (Government Gazette B ‘3347)].
2) for the Development Zones in the coastal area, JMC no. 96572 EX 2019 / 05.09.2019 – (Government Gazette B ‘3405)].
The JMD for the areas to be planned is currently pending where the process is ongoing.
4. Distribution of the right of ownership among joint owners
This condition is one of the two steps for the ownership maturity of the Metropolitan Pole. Currently the site belongs to the Greek State and HELLINIKON S.A. has only the right to use, manage, administer and exploit the site.
According to the tender process, the State undertook to transfer full “ab indiviso” ownership of 30% of the Metropolitan Pole to HRADF (excluding the seashore and the beach) so that it could then be distributed between the indivisible joint owners, so that that ab indiviso 30% share could be ‘converted’ into a full right of ownership of the relevant part of the Metropolitan Pole, around 1,575 stremmas at the Former Airport and 227 stremmas on the Coastal Zone (excluding the seashore and the beach).
It should be stressed that the Contract requires the distribution to be made based on a diagram agreed by the Investors and HRADF and the Greek State, after urban planning maturity of the project has been achieved in the manner outlined above.
5. Transfer of rights in rem in the Property to HELLINIKON S.A.
This is the second stage of the Metropolitan Pole’s ownership maturity. As previously mentioned, the Greek State has undertaken to transfer a surface right in the entire Metropolitan Pole to HRADF in agreement with the Investors. Once this is done, HRADF must in turn transfer all rights in rem which it holds (namely the surface right in the Metropolitan Pole and the right of full ownership in accordance with para. 4 above) to HELLINIKON S.A.
Taking into account the number of parties involved in those successive transactions, their nature and their special features, as well as the property’s special features in general, it is expected that achieving maturity of the ownership regime at the property will be a particularly demanding and complex process, which may require additional steps on top of those briefly set out hereby.
6. Establishment of a special body to manage and operate all communal areas
This condition ensures administrative maturity for the Property; currently management is unequally distributed between three different municipalities (Alimos, Glyfada and Hellinikon – Argyroupoli).
However, the success of such a demanding, complex and long-term project requires constant and effective coordination of all parties involved, both during the implementation stage and also during the actual development process. What is of primary importance for effective and efficient running of the Property is not just correct, rapid and prudent management and maintenance of all communal areas and infrastructure, which is self-evident, but also uniform management so that there are no individual or local differences, no discrimination and no inadequacies.
To that end, a special entity has been set up with this particular objective, but the completion of this set up must be fulfilled, as agreed, before the transfer, in order for this relevant clause to be fulfilled. To address the frequent problem of lack of resources that such entities often face, there is a specific provision that one of its tasks is be the exclusive collection and management of any requiting fees and similar charges.
It is clear that only the agreement between all parties involved in that body (namely the Investors, the Greek State, HRADF and all competent local government authorities: the Attica Region, the Municipalities of Alimos, Glyfada and Hellinikon – Argyroupoli) and other relevant bodies can result in the specific venture being a success. Consequently, not only do those parties need to be actively involved, but they also need to have a deep understanding of the project’s objectives and requirements. The rights and obligations need to be shared out, and there must be a common vision of the outcomes sought.
Especially as per the Metropolitan Park, the investors in accordance with the contractual preconditions regarding the commencement of the development of Hellinikon, will fully and exclusively undertake both maintenance and protection of the Metropolitan Park, as well as its administration, management and utilization, ensuring that it will be kept open to the public, as a common area.
7. Operating permit for a casino on the Property
Part of the Investors’ plan is to create the first Integrated Tourist Resort in Greece, which will consist of a 5 star hotel and have infrastructure to host high standard professional tourism events (fairs, conferences, business meetings and incentives tourism in general, including a casino) to attract new visitors to Athens.
However, given that there is a special regime governing casino operating permits, a special public tender process needs to be launched in order for the permit to be granted, and completing that process is yet another condition for HELLINIKON S.A. to be transferred. It should be noted that the Greek State will collect an additional consideration for this as well as continuous significant revenues from the operation of the casino, indicatively the casino special taxes and levies, since the tender process is related to the Ministry of Finance and not to HELLINIKON S.A. or the Investors.
With the Law Ν. 4446/2016, the granting of the respective license within the Pole was allowed, while with Law N. 4512/2018, the legislative framework was reformed. Subsequently, with the decision of the Ministry of Finance -“ΔΕΕΟΘ Γ 0002374 ΕΞ 2018/22.02.2018 (Β 614)” the Hellenic Gaming Commission (H.G.C.) was assigned to run an international public tender for the granting of the casino operating license within Hellinkon.
On February 22, 2019, after repeated extensions, the HGC published the notice of the relevant competition with the closing date for the submission of tenders on October 4, 2019. At present, the evaluation of tenders submissions and the granting of authorization are still pending.
8. Handing over the Property free
In effect, this refers to the actual maturity of the property. At the time the tender process was held, there were 69 different bodies based at the Property, 44 of which were from the public sector and 25 from the private sector. Some of them are arbitrarily occupying premises at the property. It is clear that failure to regulate that situation could in effect make it impossible for the development to go ahead.
The special legislation for the Property enacted in 2012 expressly requires that bodies located at Hellinikon were to be relocated with the assistance of a special committee which would ensure smooth relocation, but also stated that certain bodies would remain, especially those for which the legislator considered relocation would be disadvantageous (such as the tram depot, the Hellenic Civil Aviation Authority control centre). Besides, the Contract also specified that other bodies were entitled to remain on the Property after transfer, such as various associations for the disabled (with an obligation for the investors to house them), the Agios Kosmas sports facilities which were agreed to remain until the corresponding facilities within the Park were completed, the National Meteorological Service and specific departments of the Coast Guard which could remain temporarily (for a further 10 months).
At present, 5 years after the legislation of Law 4062/2012, and almost three years since the Contract was signed, the relocation process has progressed, however the property is not yet free.
9. The Property’s Judicial Maturity
One of the most important issues which affects all major projects is pending litigation which can drag on for many years. Pending litigation either significantly delays the completion of projects or prevents increased investor interest from materialising because of the risks entailed. For that reason, the tender notice specified that before the project commences:
- The Council of State must have issued judgments rejecting specific applications for annulment which were pending at the time of the tender process against decisions of the Interministerial Committee for Asset Restructuring and Privatisation, which resulted in the tender process being launched and
- There were to be no other pending applications for annulment relating to any other administrative decisions associated with the conditions in paragraphs 3 to 5 above.
In fact, in 2014 the Council of State rejected all applications for annulment which related to the said ICARP decisions. For the second aspect of this condition exists a contractual condition prerequisite concerning paragraphs 4-5 and it will be decidable after the issue of the relative administrative decisions. Concerning paragraph 6, a cancelation petition is pending for a) the internal operation procedure (JMD 52247 / 28.09.2018) and b) the Internal service regulation (JMD 52245 / 28.09.2018). The hearing day therefore has been set on on 04 October 2019.
- Non-detrimental change in conditions
A final condition is that by the time of the transfer no specific events should occur (such as force majeure events) which may result to a reduction by more than 5% in the area capable of being built on within the Metropolitan Pole (calculated during the urban-planning maturity stage).