Strasbourg court finds Croatia breached bidder’s right of access to court in municipal tender dispute

About this case:

• Citation:
  App no 18788/22
• Judgment:
  External link
• Court:
  European Court of Human Rights

The First Section held that Oliver Fišić had an arguable civil right under Croatian law to compete on equal terms in the tender procedure. A temporary change in domestic case law which treated mayoral leasing decisions as acts of property management beyond administrative judicial review impaired the very essence of his right under Article 6 § 1 of the European Convention on Human Rights.

Mr Fišić was represented by Mr B. Radan, a lawyer practising in Zagreb. The Croatian government was represented by its Agent, Ms Š. Stažnik. The case was heard by a seven-judge Chamber of the court’s First Section.

Higher bid rejected

In March 2017 the mayor of Župa dubrovačka instructed a municipal committee to organise a tender for the lease of public areas, including land to be used for vending stands. Mr Fišić offered 16 Croatian kunas per square metre per day for a vending stand in Brašina. Another bidder, N.P., offered HRK 11 for the same location. Both bids complied with the tender requirements. The municipal committee nevertheless relied on a provision giving priority to the previous lessee and offered N.P. the lease if she agreed to pay the higher price submitted by Mr Fišić. She did so and the mayor accepted her bid. Mr Fišić objected, arguing that the priority rule had been misapplied. In his view it could apply only where two identical bids were submitted and did not allow the previous lessee to see and then match the highest bid.

The Split Administrative Court initially considered the challenge on its merits. It held that mayoral decisions granting leases of public areas were administrative acts and therefore subject to judicial review, although it ultimately upheld the mayor’s decision. On appeal, however, the High Administrative Court quashed that judgment and declared Mr Fišić’s action inadmissible. Relying on a 2015 decision, it held that decisions on the lease of public areas were acts of property management rather than administrative acts and therefore fell outside administrative judicial review. The Constitutional Court subsequently dismissed his complaint, finding that the restriction on his right of access to a court was constitutionally acceptable.

Temporary departure from earlier approach

Before the Strasbourg court, Croatia argued that Article 6 did not apply because participation in the tender gave Mr Fišić only an opportunity to obtain a lease rather than a legally enforceable civil right. It also maintained that decisions concerning municipal property were property-management decisions and that excluding them from administrative review protected the autonomy of local government.

Mr Fišić argued that the tender directly affected his economic interests and that a mandatory public tender could not be treated like an entirely private property transaction. The municipality was bound by statutory rules and could not exercise unlimited discretion. He also drew an analogy with public procurement and concession procedures, where comparable decisions were subject to judicial scrutiny, and argued that it would be illogical for a more tightly regulated public-tender process to attract less judicial protection than other forms of public contracting.

The ECtHR held that Article 6 was applicable. It reiterated that Article 6 does not create substantive rights which do not exist in domestic law, but can apply where national law gives a person a procedural right to have a claim lawfully determined, even where the ultimate grant of an advantage remains discretionary. The court referred to its case law on public tenders, under which a bidder need not have a guaranteed right to obtain a contract. It is enough that domestic law recognises a procedural right to lawful and proper adjudication of the tender, provided that success would result in a civil right. It noted that Croatian law required municipal property of the relevant kind to be disposed of through a public tender and that a contract could only be awarded to a bidder satisfying the tender requirements and submitting the best bid.

Domestic case law also demonstrated that bidders had a procedural right to lawful and correct adjudication of tenders. Before 2015, and again from 2018 onwards, Croatian administrative courts had treated decisions granting use of municipal public areas as administrative acts amenable to judicial review. The contrary approach introduced in 2015 had been adopted “without providing detailed reasoning”. It was applied for a period, including in Mr Fišić’s case, before the domestic courts reverted to their earlier approach.

The Strasbourg court noted that in later cases Croatian courts had expressly held that bidders were entitled to compete on equal terms and had set aside tender decisions which improperly favoured other bidders. One such case concerned a bidder who had submitted the highest offer but lost after a competing local bidder was allowed to match it. The domestic courts held that the arrangement undermined genuine competition and conflicted with constitutional guarantees of free-market competition and equal legal status for entrepreneurs. It concluded that Mr Fišić therefore had a “right” which could arguably be recognised under Croatian law: the right to compete on equal terms in the tender procedure. Since that right involved a distinct pecuniary interest, it was “undoubtedly civil”.

Very essence of right impaired

Turning to the merits, the court held that declaring Mr Fišić’s action inadmissible constituted a restriction on his right of access to a court.

The 2015 approach relied upon by the High Administrative Court had overturned consistent case law dating from 2008. Yet neither the decision introducing the change nor the decision in Mr Fišić’s own case provided detailed reasoning explaining why a decision made in the course of a public tender for municipal property should no longer be amenable to judicial review. The court also considered it significant that the Croatian courts had subsequently reverted to their former approach and once again recognised judicial review of such tender decisions. It described Mr Fišić’s circumstances as a “historical situation” limited to a particular period which no longer existed.

Against that background, the court rejected Croatia’s argument that judicial review would undermine local-government autonomy or subject municipal business decisions to excessive judicial interference. Municipalities were under statutory obligations to organise public tenders and could award contracts only to parties satisfying the relevant requirements. Judicial review of compliance with those rules, the court said, “ensures the lawfulness of the procedure and guarantees accountability regarding the disposal of municipal property”. The impossibility of obtaining judicial review had therefore restricted Mr Fišić’s access to a court to such an extent that “the very essence of that right” was impaired.

There had accordingly been a violation of Article 6 § 1. The court awarded Mr Fišić €4,000 in respect of non-pecuniary damage and €2,660 for costs and expenses. Although Croatian law allowed him to seek reopening of the domestic proceedings, the court considered that course futile because the proceedings concerned a tender conducted in 2017.

The judgment was delivered unanimously on 29 October 2026 and will become final in the circumstances provided for by Article 44 § 2 of the Convention.