Published on 12 September 2022

THIRD SECTION

Application no. 27876/22 Fernando RIBOT RODRIGUEZ and Others against Spain lodged on 6 June 2022 communicated on 25 August 2022

SUBJECT MATTER OF THE CASE

The application concerns the lack of summoning of the applicants in the framework of administrative judicial proceedings concerning a public tender.

In June 2010, the Government of the Balearic Islands announced a public tender for the management of 18 pharmacies in islands of Mallorca and Ibiza. The six applicants submitted their respective tenders.

After the call for tender’s term expired, Mr A.G., who had not participated in the call for tenders lodged administrative proceedings with the High Court of Justice of the Balearic Islands (High Court of Justice) against the decision to hold the public tender, seeking its annulment (process no. 644/2010). In particular, he considered that the aforementioned decision contained discriminatory criteria for the concession of the pharmacies because it gave priority to applicants with previous professional experience running a pharmacy in the territory of the Balearic Islands and not in another region.

The High Court of Justice published in the Official Gazette [1] a public notice communicating the existence of the proceedings and summoning any interested parties to take part in them. None of the six tenderers was directly served with a summons at that time.

On 24 November 2011, while the administrative proceeding with the High Court of Justice was pending, the Government of the Balearic Islands issued a decision granting the management of the pharmacies to the six applicants and on 4 April 2012 they received the permission to open those pharmacies. Since that day they began to run their pharmacies.

On 27 May 2013 the High Court of Justice issued a judgement upholding Mr A. G.’s complaint, declaring null and void the call for tenders. The Government of the Balearic Islands appealed in cassation and on 28 April 2015 the Supreme Court dismissed the appeal and the judgment became final.

On 19 March 2019 the Supreme Court ordered the High Court of Justice to execute the judgement (repeating the call for tenders), upon A.G.’s request.

One of the applicants, Mr Ribot Rodriguez, became aware of these proceedings on 28 March 2019 when a local newspaper reported that “The Supreme Court outlawed 18 Balearic pharmacies that have been open for seven years” .

Mr Ribot Rodriguez and, afterwards, the remaining applicants, asked for the annulment of administrative proceedings no. 644/2010 from the moment the High Court of Justice hadn’t summoned them. The Supreme Court annulled the judgement concerning execution of 19 March 2019, gave the applicants the opportunity to contest the execution appeal and issued a new cassation execution judgement in the same sense as the previous one. The Supreme Court refused to annul the judgement of 27 May 2013 considering that it would exceed the scope of the cassation appeal on execution that was pending before it.

The applicants complain that they had not been served with a summons to intervene in judicial proceedings concerning the annulment of the tender proceedings that affected their rights, as required by Article 6 § 1 of the Convention.

QUESTION TO THE PARTIES

Did the applicants have effective access to a court as guaranteed in Article 6 § 1 of the Convention, having regard to the failure to summon them in the administrative judicial proceedings concerning the annulment of the decision announcing the public tender (see Dilipak and Karakaya v. Turkey , nos. 7942/05 and 24838/05, 4 March 2014, and Aparicio Navarro Reverter and García San Miguel y Orueta v. Spain , no. 39433/11, 10 January 2017)?

APPENDIX

Application no. Case name Introduction date

Applicant’s name Year of birth Place of residence Nationality

27876/22 Ribot Rodriguez and Others v. Spain 06/06/2022

Fernando RIBOT RODRIGUEZ

1973 Arenal de Llucmajor Spanish Maria Sonia GARCÍA BARTOLOMÉ

1967 Cala Ratjada Spanish Maria Paz Antonia ELETA NARVAEZ

1953 Can Picafort Spanish Rafael Vicente CONDE CERRATO

1957 Son Severa Spanish Antonio BARCELÓ OBRADOR

1968 Calonge Spanish Juan Luis PALMER LLANERAS

1971 Porto Cristo Novo Spanish

[1] Relying on Article 49 of Law 29/1998, regulating the Administrative Jurisdiction, and Article 59 of Law 30/1992, of the Legal Regime of Public Administrations and Common Administrative Procedure.