CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sD37F5C3B { margin-top:66pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s60FA0468 { width:114.68%; border-collapse:collapse } .s26EBDE6F { width:6.78%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s7DFAC0A7 { width:52.04%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sA4DC510B { width:16.82%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sC4A68051 { width:24.36%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sEB980A2 { width:6.78%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s403BC04C { width:52.04%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sCCAF9AA9 { width:16.82%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s5AEDFC40 { width:24.36%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } Published on 17 February 2025   FIFTH SECTION Application no. 13008/24 POOL IBÉRICO FERROVIARIO A.I.E. and Others against Spain lodged on 4 May 2024 communicated on 27 January 2025 SUBJECT MATTER OF THE CASE On 28 February 2017 the National Commission on Markets and Competition ( Comisión Nacional de los Mercados y la Competencia, “the CNMC”) gave a decision establishing violations of competition rules on the one hand by Renfe, the former national railroad company, and on the other hand by the applicant companies. The CNMC found two infringements: (i) a competition restriction agreement in breach of section 1 of the Defence of the Competition Act and section 101 of the Treaty on the Functioning of the European Union (“the TFEU”) and (ii) an abuse of dominant position contrary to section 2 of the Competition Act and section 102 of the TFEU. The applicants were liable only for the first violation, namely the competition restriction agreement. They were fined EUR 10.513.000. For its part, Renfe was found liable for both violations and fined EUR 49.962.000 and EUR 15.129.000 EUR for each breach. Both the applicants and Renfe challenged separately this decision. The applicants’ claim led to proceedings no. 309/2017 before the Audiencia Nacional and Renfe’s claim led to proceedings no. 302/2017 before the same Section and Chamber of the Audiencia Nacional . On 8 September 2021 the Audiencia Nacional rejected the applicants’ claim. On the same day, in a different judgment, the claim lodged by Renfe was also rejected. Both the applicants and Renfe lodged appeals on points of law against their respective judgments. The applicants’ appeal on points of law before the Supreme Court against the Audiencia Nacional judgment in proceedings 309/2017 was declared inadmissible on 1 December 2022. In contrast, on the same day Renfe’s appeal on points of law was declared admissible. These decisions were issued by the same Section and Chamber of the Supreme Court sitting in the same composition. The applicants lodged an action for annulment against the inadmissibility decision of their appeal on points of law and complained that they did not have access to a court. They argued that their appeal on points of law was substantially identical to that lodged by Renfe and that there should have been no difference as to the admissibility. The action for annulment was rejected on 27 April 2023. The Supreme Court found that the appeal on points of law in the Renfe case raised different issues than the appeal lodged by the applicants’ and that Renfe’s appeal on points of law was more relevant for the establishment of case-law. The applicants lodged an amparo appeal before the Constitutional Court complaining about access to the Supreme Court, in which they specifically argued that the sanction that had been imposed by the CNMC was criminal in nature for the purposes of the applicability of Article 2 of Protocol No.   7 to the Convention and that therefore the Supreme Court’s inadmissibility decision had entailed a breach of this provision. The Constitutional Court’s inadmissibility decision of the amparo appeal for lack of constitutional importance was notified on 8 January 2024. The applicant companies complain of a violation of the right to access to the Supreme Court and the lack of a second degree of jurisdiction in a matter that can be argued to be criminal in nature. They rely on Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention.     QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair trial in accordance with Article 6 § 1 of the Convention? In particular, having regard to the decisions of the Supreme Court that declared the applicants’ appeals on points of law inadmissible but Renfe’s appeals admissible, has there been a violation of the applicants’ right of access to a court within the meaning of Article 6 § 1 of the Convention (see Inmobilizados y Gestiones S.L. v. Spain , no. 79530/17, 14 September 2021)? Did the Supreme Court, by declaring the applicants’ appeals on points of law inadmissible, apply excessive formalism or disproportionately affect the applicant companies’ possibility of obtaining a final determination of the dispute by that court?   2.     Was Article   2 of Protocol No. 7 applicable to the proceedings in the present case?   2.a.     In particular, did the decision of the National Commission on Markets and Competition concern a criminal offence consisting of a conviction or sentence (see Saquetti Iglesias v. Spain , no. 50514/13, §§ 20-29, 30   June 2020)? 2.b.     If so, was the conviction or sentence issued by a tribunal within the meaning of Article 2 of Protocol No. 7?   3.     If Article 2 of Protocol no. 7 is applicable, were the applicants afforded the right of appeal envisaged by Article   2 §   1 of Protocol No.   7? If not, did the absence of an appeal fall within the exceptions laid down by Article   2 §   2 of Protocol No.   7?   4.     In Spanish law, is the regulation of the appeal on points of law in administrative matters before the Supreme Court capable of infringing the essence of the right to a double degree of jurisdiction under Article 2 § 1 of Protocol No. 7? What is the relevance in this context of the fact that the element of guilt is not amenable to a review by the Supreme Court?     APPENDIX   No. Applicant’s Name Nationality Company seat 1. POOL IBÉRICO FERROVIARIO A.I.E. Spanish Madrid 2. DB CARGO AG German Mainz 3. DEUTSCHE BAHN AG German Berlin 4. DEUTSCHE BAHN IBÉRICA HOLDING S.L. Spanish Barcelona 5. SOCIEDAD DE ESTUDIOS Y EXPLOTACIÓN DE METERIAL AUXILIAR DE TRANSPORTES S.A. Spanish Madrid 6. TRANSFESA LOGISTICS S.A. (ANTERIORMENTE DENOMINADA TRANSPORTES FERROVIARIOS...) Spanish Madrid