CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 janvier 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Published on 17 February 2025   SECOND SECTION Application no. 1345/22 DUROCOOL d.o.o. against Croatia lodged on 24 December 2021 communicated on 30 January 2025   SUBJECT MATTER OF THE CASE The application concerns the alleged unfairness of the public procurement proceedings and the alleged unequal treatment of the applicant company in those proceedings. In particular, the applicant company participated as a bidder, together with a Finnish company, in public procurement proceedings concerning the purchase of certain equipment for the Croatian Hydrometeorological Institute. The applicant company enclosed with their bid a certificate from the tax authorities, dated 18 November 2019, that it had no tax debt, as required under domestic law. On 4 March 2020 the Institute verified that information and established that on 4   March 2020 the applicant company had had a tax debt of 14,876.58 Croatian kunas (i.e. 1,974 euros (EUR)). Following a request by the Institute to submit evidence that it had not had a tax debt on 4   March 2020, the applicant company provided another certificate, dated 10   March 2020, that on that date (10 March 2020) it had not had a tax debt. The Institute however insisted on a certificate proving that the applicant company had not had a tax debt on 4 March 2020, which the company was unable to provide. The applicant company explained that the information in the tax authorities’ database was not being updated in real time or daily, and that information on tax debts retrieved on a certain date was therefore inaccurate. The Institute did not accept that argument, and in a decision of 10 July 2020 accepted the bid of the Finnish company while acknowledging that the bid of the applicant company was the most favourable. The applicant company appealed against that decision before the State Public Procurement Commission, repeating its argument concerning the inaccuracy of the tax authorities’ database. It also argued that it had been placed at a disadvantage vis-à-vis the Finnish company because the Finnish tax authorities did not keep record of tax debts below EUR 10,000, and because the managers of that company could themselves certify that they had not had a criminal record whereas those of the applicant company had to obtain a certificate to that effect from the Croatian authorities. However, the Commission dismissed the appeal. The applicant company’s subsequent action for judicial review and a constitutional complaint were unsuccessful. The applicant company complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 12 thereto that the public procurement proceedings in question were unfair and that it was not treated equally vis ‑ à ‑ vis the other party in those proceedings.     QUESTIONS TO THE PARTIES 1.     Did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article   6 §   1 of the Convention? In particular:   (a)     Was the tax authorities’ database on tax debts at the relevant time updated daily? If it was not, was the insistence of the domestic authorities that the applicant company submits evidence regarding the absence of a tax debt on 4   March 2020 arbitrary or manifestly unreasonable in the given circumstances (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 60-65, ECHR 2015)?   (b)     Was the principle of equality of arms respected as regards proving the absence of a tax debt (see Andrejeva v. Latvia [GC], no. 55707/00, §§ 96 ‑ 102, ECHR 2009, and Metalco Bt. v. Hungary , no. 34976/05, §§ 22-24, 1   February 2011)?   2.     Did the applicant company suffer discrimination as a domestic company in the enjoyment of its rights under the Public Procurement Act, contrary to Article 1 of Protocol No. 12 to the Convention? In particular, was the applicant company subjected to a difference in treatment in relation to the other bidder in the public procurement proceedings in question? If so, did that difference in treatment pursue a legitimate aim, and did it have a reasonable justification (see, mutatis mutandis , Savez crkava “Riječ života” and Others v. Croatia , no. 7798/08, §§ 85-93, 9 December 2010)?