Tribunal Supremo. Sala de lo Civil ; 2019-02-20; ROJ ATS 1620/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:1620A
Date: 2019-02-20
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES0220(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of admissibility of a cassation appeal brought before the Tribunal Supremo (hereinafter ‘the Supreme Court’).
The Juzgado de Primera Instancia n.º 3 de Inca (hereinafter ‘the Court of First Instance’) issued an order in execution proceedings which was later appealed by the party concerned (hereinafter ‘the plaintiff’) to the Audiencia Provincial de Palma de Mallorca (Sección 5.ª) (hereinafter ‘the Court of Appeal’). The Court of Appeal ordered the continuation of the execution.
The legal representative of the plaintiff filed a cassation appeal with the Supreme Court alleging an infringement of procedural rules and seeking the change of the Court of Appeal’s order.
The Supreme Court recalled that a cassation appeal may be filed only in special cases strictly enumerated by national law. According to Article 477(2) of the LEC (1), there are certain judicial decisions which are excluded from the cassation appeal completely, and this enumeration also includes the order in question. The LEC allows only limited decisions issued in the second instance to be reviewed under cassation appeal. With regards to these decisions, the only exception of their admissibility for a cassation appeal would be a cassation appeal on a matter of law related to proceedings for the recognition and enforcement of foreign judgments pursuant to the Brussels Convention (2), the Lugano Convention (3), the Brussels I Regulation (4) or any other legal instrument of a similar nature.
The contested order of the Court of  Appeal does not fall under this exception, so the request for cassation appeal cannot succeed. Therefore, the Supreme Court dismissed the request as substantially unfounded.
(1) Ley de Enjuiciamiento Civil (LEC) (Code of Civil Procedure).
(2) Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
(3) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters – Done at Lugano on 16 September 1988.
(4) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.