Tribunal Supremo. Sala de lo Civil; 2013-01-08; Banco Mare Nostrum, S.A.; Anibal; Belarmino; DIRECCION000; David; ATS 188/2013
Decision by national courts in the field of European Union law — ECLI:ES:TS:2013:188A
Date: 2013-01-08
Subject matter: Lugano Convention
Origin: Spain

82013ES0108(51)_ENG_SUMJURE
JURE summary
JURE summary
The case regards an extraordinary appeal for procedural infringement against an order of the Provincial Court of Madrid. This order confirmed a previous order of the Court of First Instance of Madrid, which declared the lack of legal capacity and representation of the plaintiffs Mr. Belamino, Mr. David, Mr. Anibal and the community of property DIRECCION000.
On 31 May 2010, the Court of First Instance of Madrid declared the lack of legal capacity and representation of the plaintiffs on an infringement procedure and, therefore, the lifting of the embargo and the filing of the proceedings. The plaintiffs appealed this order before the Provincial Court of Madrid, which confirmed the lack of legal capacity and representation of the plaintiffs. Considering that this confirmation of the lack of legal capacity and representation was a procedural infringement, the plaintiffs decided to bring the case before the Supreme Court of Spain.
The Supreme Court stated that the extraordinary appeal for procedural infringement, according to a transitional procedure established on the 16th Final Provision of the Ley 1/2000, of 5 of January, de Enjuiciamiento Civil (LEC), can be brought only against the same resolutions that can be the object of an appeal in cassation before the Supreme Court. This means that the extraordinary appeal for procedural infringement can be used only against judgments of the Provincial Courts of second instance, excluding therefore, interlocutory judgments, decisions regarding incidental issues as well as orders of the Provincial Courts or equivalent resolutions related to recognition and enforcement of foreign judgments, based on the Brussels Convention of 27 December 1968 on jurisdiction and the enforcement of the judgements in civil and commercial matters (“Brussels Convention”) and the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgements in civil and commercial matters (“Lugano Convention”), according to Articles 477.2 and 456.1 of the LEC. However, the Supreme Court also stated some exceptions to this rule under which the extraordinary appeal for procedural infringement would be admissible, even if the requirements for an appeal in cassation before the Supreme Court would not be fulfilled. These exceptions are: judgments of first instance courts related to the judicial protection of fundamental rights (Article 477.2.1 in relation to Article 249.1 and 2 of the LEC) and judgments on ordinary proceedings when the value of the claim exceeds 150.000 euros (article 477.2. in relation to Article 249.2 of the LEC).
The Supreme Court, considering that an order of a Provincial Court on an enforcement procedure does not fulfil the requirements for either an appeal in cassation nor for the exceptions previously mentioned, declared that the extraordinary appeal for procedural infringement was not admissible, confirmed the order of the Provincial Court of Madrid.