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.
- 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, was the 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 this PD three applications for annulment were filed with the Plenary Session of the Council of State, all of which were rejected in their entirety.
- 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 has been worked out and issues affecting the development and restrictions on development are 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)].
Finally, the process was completed with the approval of urban planning studies for the Project Planning Areas (A-W1, A-W2, A-W3, A-W4, A-W5, W-W6 and WP-W1) through the JMD no. 109171 EX2019 / 03.10.2019 (Government Gazette 3687)
It should be noted that the following requests for annulment were lodged with the Council of State against these JMCs:
a) the no. 2873/2019 application for cancellation of the JMD for the approval of Town Planning Plans for Town Planning (and the fifth Article of the Legislative Content Act published in Government Gazette A145 / 30.09.2019). The said application had been designated for discussion on 06.03.2020 before the Council Plenary, but was not discussed due to a request of resignation of the applicants before day of hearing
(b) No. 3203/2019 also requesting the cancellation of the JMD for the approval of urban planning studies. Said application was discussed on 06.03.2020 before the Council Plenary and the verdict is pending,
c) the no. 3019/2019 Application for Cancellation of the Development Zone Spatial Organization JMD Approved in the Former Airport Area and Related to the Casino License Contest, which was initially determined to be discussed on 01.04.2020 before the Council of State’s E Section, discussion of which was postponed due to suspension of activities of the courts for the trial day on 16.09.2020.
d) the no. 3021/2019 application for cancellation of the JMD approval of a spatial organization of the Metropolitan Park which was initially determined to be discussed on 01.04.2020 before the E Section of the Council of State, discussion of which was postponed due to suspension of activities of the courts for the trial day on 16.09.2020, and
(e) the no. 3023/2019 request for cancellation of the JMD approval of the spatial organization of Development Zones located on the coastal front, which was also initially determined to be discussed on 01.04.2020 before the E Section of the Council of State, discussion of which was postponed due to suspension of activities of the courts for the trial day on 16.09.2020.
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. Originally the site belonged to the Greek State and HELLINIKON S.A. has only the right to use, manage, administer and exploit the site.
In the Tender context, the State transferred 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, in particular a percentage of 30% of the area of the Former Airport and 30% of the area of the Coastal Zone (excluding the seashore and the beach), which amount to around 1,575 stremmas at the Former Airport and to 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, which took place on 11.02.2020.
Based on said diagram the finalization of the relevant process and implementation of the corresponding distribution are pending – actions which are in any case very demanding and constitute part of the more general procedure for ownership maturity, in combination with the provisions under 5 hereinbelow.
- 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 incorporate and transfer a surface right in the entire Metropolitan Pole to HRADF in agreement with the Investors. Once the process of distribution is completed and the surface right is transferred form the Greek State to HRADF, HRADF must in turn transfer all rights in rem which it holds, that is the right of full ownership in accordance with para. 4 above) as well as the surface right for the Metropolitan Pole 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 hereinabove.
- 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 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 LAMDA, 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 LAMDA, in accordance with its 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.
Law 4549/2018 was voted to fill this divestiture by establishing the body entrusted with the required powers to manage and operate all public spaces, infrastructures, works and equipment within the Property, and the exclusive collection and management of any subscription fees and related charges. Subsequently, the relevant Ministries have also adopted the Internal Rules of Procedure of the body (JMD 52247 / 28.09.2018) and its Internal Service Rules (JDM 52245 / 29.09.2018).
Τhe last two acts had been challenged by an application for annulment, which was rejected by a decision of the Council of State on 05.05.2020.
- 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 Hellinikon.
On 22.02.2019 ECEP published the call for competition with a deadline for submission of tenders, on repeated October 4, 2019.. Following the relevant announcements by ECEP, it turns out that:
- (04.10.2019) 2 investment schemes submitted bids in a timely manner, in alphabetical order: a) MGE Hellinicon B.V. – Mohegan Gaming Advisors LLC – GEK TERNA SA (INSPIRE ATHENS) and b) SHRE / SHRI, LLC.
- (20.01.2020) by the unanimous decision 457/1/14.01.2020 of the ECEP, the Minutes of the Commission were ratified Conduct of the aforementioned international competition concerning the results of the evaluation stage of the Tender Dossier, according to which the tender of SHRE / SHRI, LLC is rejected and the Tender Offer of INSPIRE ATHENS is accepted.
- (13.02.2020) Decision of Rejection Ref. 10/2020 was issued by the Commission of the Authority for Evaluation of Prejudicial Recourse for the prejudicial recourse filed with Tenderer SHRE/SHRI, LLC against decision 457/1/14.01.2020 of the ECEP.
- 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 on one hand expressly requires that bodies located at Hellinikon were to be relocated with the assistance of a special committee which would ensure smooth relocation, and on the other hand 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).
Now, almost eight years after the legislation of 4062/2012, HELLENIC SA arranges for the relocation and removal of all public and private users from the Property, however these procedures are not yet completed
- 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 6 above.
In fact, in 2014 the Council of State rejected all applications for annulment which related to the said ICARP decisions. However, the cancellation applications referred to in sections 3-6 above are still pending.
10. 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).