Tribunal Supremo. Sala de lo Civil; 2019-09-11; ATS 8710/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:8710A
Date: 2019-09-11
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES0911(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 Audiencia Provincial de Valencia (hereinafter ‘the Court of First Instance’) issued an order regarding the foreclosure of a mortgage, which was later appealed by a plaintiff on the grounds of an alleged infringement of procedural rules (the appeal was lodged to the same court). The Court of First Instance, acting as Court of Appeal, rejected the appeal as inadmissible.
Subsequently, the plaintiff filed a cassation appeal with the Supreme Court on the grounds that the ordinary appeal should have been admitted.
The Supreme Court recalled that a cassation appeal may be filed only in special cases strictly enumerated by national law. According to the LEC (1), there are certain judicial decisions which are excluded from the cassation appeal completely, and this enumeration also includes the order as is under this 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 issued by the Court of First Instance, by which it dismissed an appeal against its own previous order, does not fall under this exception, so the decision of the lower court must be upheld. The Supreme Court further recalled that neither constitutional rights (e.g. the right to justice) were affected by not admitting the appeal, since there is no constitutionally protected right to lodge appeal on the grounds of procedural violation. Conversely, the appeal must always fulfil the admissibility requirements laid down by legislation and it is on consideration of the Supreme Court whether the requirements were fulfilled or not.
Therefore, the Supreme Court dismissed the cassation appeal 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.