Tribunal Supremo. Sala de lo Civil ; 2019-02-06; ROJ ATS 1249/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:1249A
Date: 2019-02-06
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES0206(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 Santa Cruz de Tenerife (Sección Cuarta) (hereinafter ‘the Court of Appeal’) issued an order by which it denied the admission of an appeal against its previous order given in execution proceedings and denied to forward the question within the cassation appeal to the Supreme Court. The Court of Appeal argued that the order under appeal cannot be legally appealed under a cassation appeal since it does not have a form of judgment.
Subsequently, the legal representative of the party concerned filed a complaint with the Supreme Court on the grounds that the dismissed appeal and request for a cassation appeal should have been admitted due to an alleged infringement of procedural rules.
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 judgments issued in the second instance to be reviewed under cassation appeal. With regards to these decisions, the 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 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 an appeal on the grounds of a 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 complaint against inadmissibility of 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.