FIFTH SECTION

DECISION

Application no. 27876/22
Fernando RIBOT RODRIGUEZ and Others
against Spain

The European Court of Human Rights (Fifth Section), sitting on 5 December 2024 as a Committee composed of:

 Gilberto Felici, President,
 María Elósegui,
 Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 27876/22) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2022 by six Spanish nationals, whose relevant details listed in the appended table, (“the applicants”) and who were represented by Ms A. Bueno Perez-Victoria, a lawyer practising in Madrid;

the decision to give notice of the complaints concerning Article 6 of the Convention and Article 1 of Protocol No. 1 to the Spanish Government (“the Government”), represented by their Agent, Mr L. E. Vacas Chalfoun, co‑agent, Representative of Spain to the European Court of Human Rights, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The central issue in the case is whether the handling of the applicants’ intervention in an appeal on points of law satisfied the requirements of the right to access to a tribunal under Article 6 § 1 of the Convention.

2.  On 6 May 2010 the government of the Balearic Islands (“the government”) launched a call for applications for licences to open eighteen pharmacies in Mallorca and Ibiza. The applicants submitted their candidacies and were eventually attributed licences on different dates from 2012 on.

3.  Meanwhile, on 4 June 2010, C.A.G., a pharmacist from Barcelona who had not applied for a licence, started administrative proceedings against the government seeking annulment of the call. He argued that the call contained a discriminatory criterion (“the A7 criterion”) that would be contrary to the right of establishment laid down in Article 49 of the Treaty on the Functioning of the European Union. The criterion favoured candidates who had pursued professional activities in Mallorca or Ibiza over those who had done so elsewhere in Spain.

4.  On 27 May 2013 the High Court of Justice of the Balearic Islands (“the High Court”) allowed, in proceedings no. 644/2010, C.A.G.’s claim and found that the A7 criterion was indeed in breach of EU law – a finding that entailed the unlawfulness of any related administrative acts. On 28 April 2015 the Supreme Court dismissed the government’s appeal on points of law.

5.  On 22 March 2016 the High Court rejected C.A.G.’s request for the enforcement of the judgment because it had already been executed in that the government had annulled the A7 criterion by way of a Law Decree in 2013.

6.  C.A.G. brought an appeal on points of law before the Supreme Court. He complained that his right to the enforcement of a final judgment had been breached, because in his initial claim he had sought not only the annulment of the A7 criterion but also the removal of its effects, that is, the annulment of the call itself.

7.  By a judgment of 19 March 2019, the Supreme Court quashed the decision of 22 March 2016 and ordered the High Court to execute the judgment of 2013 fully and exhaustively (en sus propios términos).

8.  On 26 April 2019 the first applicant lodged an action for annulment with the Supreme Court. He claimed not to have learnt of the Supreme Court’s enforcement judgment until 28 March 2019 when an online news portal (ultimahora.es) published the information. He complained that his right to access to a court had been frustrated because he should have been able to participate in the proceedings as an interested party, summoned personally. The Supreme Court agreed and declared the nullity of the judgment of 19 March 2019, ordering that he be granted leave to oppose the appeal on points of law within 30 days. Nonetheless, the first applicant submitted a motion to have this decision complemented or clarified, arguing that he had also sought the nullity of the whole proceedings, including the main proceedings no. 644/2010 and the judgment of 27 May 2013 (see paragraph 4 above).

9.  On 10 September 2019 the Supreme Court dismissed this motion, holding that to restart the main proceedings no. 644/2010 would not only be inoperative because of the resultant delay, but also unnecessary because the opposition to the appeal on points of law was a sufficiently effective way (resulta adecuado e idóneo) to guarantee the applicant’s right to be heard as an intervener in the proceedings.

10.  Subsequently, the Supreme Court extended the possibility to intervene in the appeal on points of law to the other five applicants. The first three applicants submitted their allegations on 24 January 2020. In a preliminary observation they agreed with the High Court findings regarding the discriminatory character of the A7 criterion. On 27 January 2020 the fourth and fifth applicants submitted their allegations in which they objected to C.A.G’s legal standing and argued, following the High Court’s decision of 22 March 2016 (see paragraph 5 above), that the judgment declaring the nullity of the criterion had been duly executed. The sixth applicant submitted allegations on 28 January 2020. After underlining that the only issue in the main proceedings was whether A7 criterion was unlawful, he argued that if it was, such a finding should not entail that the call was null and void.

11.  On 31 July 2020 the Supreme Court gave a second judgment, in which it again granted C.A.G.’s appeal on points of law and ordered the High Court to execute the judgment of 2013 fully and exhaustively.

12.  Actions for annulment against the second judgment were brought afresh by another group of pharmacists, who had not been parties to the proceedings. On 21 July 2021 the Supreme Court, after having accepted their interventions in the appeal on points of law, gave a third judgment, in which it again granted C.A.G.’s appeal on points of law and ordered the execution.

13.  On 11 October 2021 the applicants lodged a joint amparo appeal against the third judgment with the Constitutional Court. It was declared inadmissible for lack of constitutional importance in a decision notified on 25 February 2022.

14.  The applicants complained that the manner in which the Spanish courts handled the case amounted to a breach of their right to access to a tribunal and might expose them to the eventual withdrawal of their licences. They relied on Article 6 § 1 of the Convention.

THE COURT’S ASSESSMENT

15.  The applicants complained that the limited extent of their intervention in the appeal on points of law at the enforcement stage amounted to frustration of their right to access to a court. They further argued that the enforcement of the judgment regarding the nullity of the call for pharmacy licences might call into question their rights as owners of pharmacies.

16.  The Government objected to the admissibility of the case on various grounds. The Court considers that it is not necessary to address each of these issues, because the application is in any event inadmissible for the following reasons.

17.  The general principles on the right of access to a court were recapitulated in Zubac v. Croatia [GC], no. 40160/12, §§ 76-86, 5 April 2018.

18.  In the present case, the Court notes at the outset that the six applicants are in the same situation because even though they all participated in the call for licences and were eventually attributed pharmacy licences, none of them was personally summoned in the proceedings. However, ultimately, they were all granted access to the appeal on points of law at the enforcement stage and submitted an opposition to it (see paragraph 10 above). The Court therefore concludes that the applicants had equal access to the appeal on points of law in the context of the enforcement proceedings.

19.  As the Court has already held, for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is in interference with his rights (see Bellet v. France, 4 December 1995, § 36, Series A no. 333-B; Nunes Dias v. Portugal (dec.), nos. 2672/03 and 69829/01, ECHR 2003-IV and Cañete de Goñi v. Spain, no. 55782/00, § 34, ECHR 2002-VIII and references cited therein). In application of this principle, the Court will examine whether the Supreme Court, after having granted the applicants access to the proceedings at the enforcement stage, should have extended the same to the main proceedings.

20.  The Court notes that the outcome of the main proceedings was that the A7 criterion was contrary to EU law for being discriminatory and against the freedom of establishment (see paragraph 3 above). The Court further notes that the applicants did not contest at any stage, once they were granted access to the proceedings, this finding. As a matter of fact, some of the applicants expressed before the Supreme Court that they agreed with the A7 criterion being declared unlawful (see paragraph 10 above). Thus, the Court finds that the applicants never took issue with the conclusions reached in the main proceedings. Their claim concerned exclusively the extent of the effects of the A7 criterion being annulled and the question as to whether it implied the annulment of the call for licences or not. This was essentially the subject matter of the enforcement proceedings as brought by C.A.G. (see paragraph 6 above).

21.  The Court reiterates that where a person claims the right of access to a court, that Convention right may be in conflict with the other party’s right to legal certainty, likewise secured under the Convention. Such a situation requires a balancing exercise between conflicting interests, and the Courts accords the state a wide margin of appreciation (see Sanofi Pasteur v. France, no. 25137/16, §§ 56-58, 13 February 2020). In the present application, the subject matter of the appeal on points of law concerned C.A.G.’s right to the enforcement of the final judgment of 27 May 2013. Enforcement is also considered, along with the right for access to a court, a fundamental aspect of Article 6 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 196, ECHR 2006-V).

22.  The Court notes that the Supreme Court conducted a balancing exercise in its decision of 10 September 2019 regarding the moment in time in regard to which the proceedings should restart (see paragraph 9 above). These findings were applicable to the rest of the applicants who appeared later in the proceedings, in so far as they were all in the same situation.

23.  Observing that the outcome of the main proceedings was never contested by the applicants, taking account C.A.G.’s right to the enforcement of the final judgment of 27 May 2013, and considering that the applicants’ claim concerned exclusively the extent of the effects of the nullity of the A7 criterion and not the nullity of the criterion itself, the Court is satisfied that the applicants’ position could be sufficiently defended in the appeal on points of law at the enforcement stage.

24.  It follows that there is no appearance of a violation of the applicants’ right of access to a tribunal under Article 6 § 1. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

25.  To the extent that the applicants may be understood to complain under Article 1 of Protocol No. 1 of the potential calling into question of their rights as owners of pharmacies, the Court observes at the outset that there has not been any act of annulment of the applicants’ licences or any measures aimed at the closure of their pharmacies in the context of the proceedings regarding the A7 criterion. The Government, for their part, pleaded in essence non‑exhaustion of domestic remedies and the absence of victim status in that the applicants’ concern was a hypothetical grievance.

26.  In their supplementary observations of 18 December 2023 and 26 February 2024, the applicants submitted two High Court decisions dated 1 and 20 December 2023. Amongst other issues, these decisions dealt with a possible future closure of their pharmacies and mentioned some possibilities of protecting the applicants’ rights. These are, inter alia, a provisional stay of the closure of the pharmacies while a new call for licences is pending and, more importantly, the possibility for the owners of licences to claim compensation from the State in the form of a claim for State liability. In this regard, the High Court underlined that section 24 (9) of the Pharmacies’ Organisation Act of the Balearic Islands no. 7/1998 (Ley 7/1998, de 12 de noviembre, de Ordenación Farmacéutica de las Islas Baleares) allows that in the event of annulment of a pharmacy licence pursuant to judicial proceedings, the original owner may request the attribution of a different pharmacy licence. The High Court indicated that this could be a form of compensation for the original owners in State liability proceedings.

27.  The Court therefore finds that the applicants may have a remedy at their disposal in the event their licences are annulled after a new call for licences. Having regard to the fact that the enforcement proceedings are still pending and a new call for licences is ongoing and, moreover, that a remedy against the potential annulment of their licences is available, the Court concludes that this complaint is premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 January 2025.

 {signature_p_1}  {signature_p_2}

 Martina Keller Gilberto Felici
 Deputy Registrar President

Appendix

List of applicants: