Published on 11 July 2022
FIRST SECTION
Application no. 18788/22
Oliver FIŠIĆ
against Croatia
lodged on 6 April 2022
communicated on 20 June 2022
SUBJECT MATTER OF THE CASE
The application concerns the impossibility by the applicant to challenge before a court the decision of a mayor rendered in the public tendering procedure whereby another bidder was awarded the lease of public surface contract for the purpose of operating a vending stand. According to the applicant, the denial of access to a court was the result of a change in the domestic courts’ practice which, without giving any reasons, set out that the decision of the head of local government rendered in the tendering procedure was not an administrative act and could not thus be challenged before the Administrative Court.
It appears that pursuant to a practice direction adopted by the Administrative Court in April 2008, the decisions of heads of local governments concerning awarding the lease of public surface contracts in the tendering procedure were considered administrative acts until 26 January 2015, when the High Administrative Court in a particular case in which the mayor of Zagreb awarded the lease of property contract to the Croatian Football Federation held that the mayor’s decision was “not an administrative act, but an act by which [the mayor] disposed of property”, and which was therefore not amenable to judicial review. Such change in practice was upheld by the Constitutional Court on 14 November 2019 which held that the High Administrative Court gave relevant and sufficient reasons for the impugned restriction of access to a court.
The applicant complains, under Article 6 § 1 of the Convention, that the denial of the right of access to a court is not justified. Since in determining the best bid the heads of local government are bound by statutory rules, bidders have the right to judicial control of the lawfulness and fairness of the tendering procedure, otherwise risking manipulations and abuses.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case? In particular, did the proceedings concern determination of “civil rights” within the meaning of Article 6 § 1 of the Convention (see Károly Nagy v. Hungary [GC], no. 56665/09, § 62, 14 September 2017; Regner v. the Czech Republic [GC], no. 35289/11, §§ 99‑105, 19 September 2017; Mirovni Inštitut v. Slovenia, no. 32303/13, §§ 28-29, 13 March 2018, and, mutatis mutandis, Melikyan v. Armenia, no. 9737/06, §§ 33-40, 19 February 2013)?
2. Was the denial of access to a court regarding the decision of the mayor rendered in the public tendering procedure justified? In particular, did it pursue a legitimate aim, and was there a reasonable relationship of proportionality between the means employed and the aim sought to be achieved?