Following the decision of the Constitutional Court in July, Barcelona's Contentious-Administrative Court 15 has annulled its original decision, substituting the decision of October 13th 2020, which ordered the Catalan Health Service to pay the Complainant - owner of a pharmacy in Barcelona - late payments of its invoices plus interest from the date of filing of the Complaint, in the amount of 9,260.85 Euros.

José Luis Aguilar, Andersen partner, filed an action for amparo with the Constitutional Court, which was admitted on October 15, 2018 and granted on July 15th 2020, challenging the legitimacy of the pharmacists to claim, on an individual basis, the interest accrued as a consequence of the late payments made by the Servei Català de la Salut.

The new Sentence of the Contentious Administrative Court, makes a brief pronouncement in relation to the question of legitimacy, making its own the arguments now held by the Constitutional Court, specifically states:

The defence of the defendants considers that the contested decision is in accordance with the law, and at the same time raised as a preliminary issue of inadmissibility under Article 69(b) of the Contentious-Administrative Jurisdiction Law the lack of standing to bring proceedings, which Her Honour initially accepted, but given that the Constitutional Court ruling had previously joined the proceedings, there is no need to consider this question, since it has been understood that the plaintiff does have standing in the present proceedings, and the legal reasoning of the High Court has been reproduced for reasons of procedural economy.

The pronouncement is therefore a consequence of the legal grounds of the Constitutional Court's ruling which states that the ordinary judge cannot claim to be conditioned on a previous pronouncement in order not to alter his previous criterion consisting of considering the lack of active legitimation in a similar case, while the same, he recalls, can be altered in a justified and reasoned manner.

In this sense, the argument followed in the Constitutional Court's judgment is that it does not allow the principle of equality and non-discrimination to be used to prevent the judicial body from being able to alter its own previous criterion.

In this line, the High Court continues to state that "we would reach the absurd conclusion that, for the judicial body, it is the right to equality in the application of the law of the plaintiff herself that does not allow for the recognition of her legitimacy" which implies an "unreasonable interpretation and a decision that is harmful to the right to judicial protection in access to jurisdiction, as it is disproportionate".

As regards the main argument on standing, the Constitutional Court ruled that legitimate interest is characterised as "a material relationship between the subject and object of the claim", it being obvious in this case that the applicant for protection, a pharmacist who owns a pharmacy, has an interest of her own, The applicant is a direct and certain claimant in relation to the claim exercised in that his pharmacy has acquired medicines and health products in order to fulfil its obligations, and has dispensed them to patients of the National Health System, and therefore is entitled to receive the economic consideration for that service, which must be paid by the Servei Catala de la Salut, and, furthermore, to receive it within the time limit determined in the agreement.

The applicant is not indifferent to the fact that that consideration is paid late, because that has a structural effect - as the Public Prosecutor also points out - on the very operation of the pharmacy (since the availability of the funds is essential to the fulfilment of the obligations incumbent on it, which are the purchase of medicines, with their proper storage and preservation, and their distribution to the public).

In other words, it must be understood that if the owner of a pharmacy is obliged by virtue of the aforementioned agreement, and in turn is entitled to payment for its services, he must also be able to claim the fulfilment of that consideration as well as the consequences derived from his temporary non-compliance and, consequently, "make it worthy of having a legitimate interest, and of defending it, without the need to channel his action through the Consell de Col-legis Farmacèutics de Catalunya (CCFC)".

For all these reasons, the concept of "active legitimation" must be interpreted in a broad and non-restrictive sense, that is, in accordance with the principle of pro actione, as already established by the Constitutional Court's ruling 67/2010, of 18th October, Legal Basis 3.

On the other hand, the ruling that resolves the appeal for protection does not accept either the argument of the ordinary court that the object of the litigation was a contractual breach between two legal entities, the Servei Catala de la Salut and the CCFC, which signed the 1995 pharmaceutical care agreement, which was rewritten in 2010, and of which the individual who owned a pharmacy was not a direct party. The examining magistrate understood that an agreement from the General Meeting was required to be able to individually claim interest on late payments.

However, the High Court rightly warns that "the undertaking given by the CCFC involves imposing on pharmacies and the pharmacists who run them an obligation, in particular, to provide pharmaceutical care to patients in the public health system. For its part, the Servei Català de la Salut, in logical counterpart, undertakes to process punctually the orders for payment of the corresponding invoices to the Treasury of the Generalitat (...)".

It concludes that the requirement sought by the ordinary court in requiring the holder of a pharmacy to exercise his claim through the CCFC would not be in line with the right to effective judicial protection enshrined in Article 24 of the Constitution, in its aspect of access to jurisdiction, so that the judicial decision in the first instance must be considered detrimental to the right of the appellant in the amparo proceedings.

Consequently, the concept of "legitimate interest" provided for in Article 19.1 a) of the Law on Contentious Administrative Jurisdiction is characterised as a univocal material relationship between the subject and the object of the claim (act or provision being challenged), in such a way that its annulment automatically produces a current or future but certain positive or negative effect, such a relationship being understood to refer to an interest in its own, qualified and specific, current and real sense.

In the same sense, the Public Prosecutor pronounces that it is the pharmacies that effectively assume the dispensing of medicines, the responsibility for it, and that make the economic payment that allows the necessary availability, for which he understands that an adequate interpretation of article 24.1 of the Constitution was not made, understanding that "the interpretation that links the concept of "contractual party" with legitimate interest is disproportionately rigorous and reduced".

Finally, and following the ruling of the Barcelona Contentious Administrative Court 15, the way is paved for pharmacists to collect the corresponding payments and interest, on an individual basis, from 2016 to date. This pronouncement by the Constitutional Court implies the unification of the doctrine of the various contentious-administrative courts, a matter which has been under discussion since 2015.

Read the full article in Confilegal