After Croatia invested tens of millions of euros in half of a bridge on the Sava River near Gradiska and in the first section of a fast road that was supposed to connect the bridge to the Zagreb-Belgrade motorway, the question arises as to whether that country could sue Bosnia and Herzegovina (BiH) because it cannot use these facilities.
As a reminder, due to internal disputes in BiH between Sarajevo and Banja Luka, Zijad Krnjic, the Bosniak member of the Governing Board of the Indirect Taxation Authority (ITA), blocked amendments to regulations that would enable the placement of customs officers on the BiH side, that is, at the new border crossing on the BiH side.
Krnjic is demanding that Republika Srpska (RS) first allow a change in the coefficient for the distribution of revenue from indirect taxes between RS and the Federation of BiH (FBiH), as he believes the current coefficient is to the detriment of Sarajevo, which Banja Luka rejects.
Because this facility has not been opened, Croatia cannot open the fast road on its side of the border, and the border crossing, which was built on time, also cannot begin operations because it is tied to this facility.
Given that this is an interstate infrastructure project, one can theoretically imagine a scenario in which Croatia could sue BiH, but judging by the responses we received, at least for now, Croatia will not move in that direction.
Croatian Roads, the investor in the fast road that was built for them by the Banja Luka-based company Integral Inzenjering, confirmed that they are not considering lawsuits.
Namely, they were asked whether they intend to seek compensation because the facility cannot be used, while regular maintenance must still be carried out regardless of whether cars are using it or not.
“The fast road will be opened to traffic when all necessary prerequisites are met, including the connected infrastructure outside the jurisdiction of Croatian Roads. Croatian Roads does not charge for the use of the roads they manage, and regular infrastructure maintenance is carried out regardless of traffic intensity, in accordance with applicable regulations,” the company said.
At the Croatian Ministry of Finance, which is responsible for the construction of the border crossing on the Croatian side, which was completed on time and made ready for opening, journalists were referred, for an answer to the same question, to the Croatian Ministry of Foreign and European Affairs, which did not respond due to the Christmas holidays.
Croatia is not the only entity that would have the right to complain, as the European Union (EU) also participated in these projects, primarily by providing a multimillion-euro grant for the bridge on the Sava River near Gradiška, as well as around ten million euros for the Mahovljani interchange, which is also linked to this route.
Furthermore, it was reported that the EU, at least for now, also does not plan to sue BiH, and from a European official they learned that it had been planned for the EU to send a delegation to the opening of the fast road in Croatia, but that this was abandoned practically at the last moment when it became clear that BiH would not open the crossing.
After consultations with several international legal experts, it was explained that Croatia could sue the state of BiH, but that the outcome of such a process would be uncertain if there is no clause in the contract defining what would happen if one side failed to open the crossing.
As for the EU, it appears that it also would not be able to sue BiH, but it would have greater instruments of influence because it has provided significant funds to BiH, not only for these specific facilities, but also for equipping border crossings and facilities of the ITA of BiH.
It is also important to note that the crossing, had it been opened, would have been opened under a temporary regime, because BiH and Croatia have not yet signed a new agreement on border crossings that would permanently define this facility, and that fact could also affect the potential outcome of lawsuits.
All things considered, BiH has experienced yet another international embarrassment, raising the question of how likely it is that foreign investors will want to invest in a country that behaves in this way.
