Tribunal Supremo. Sala de lo Civil ; 2019-02-20; ROJ ATS 1748/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:1748A
Date: 2019-02-20
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES0220(52)_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 Coruña (Sección 3.ª) (hereinafter ‘the Court of Appeal’) rejected a request for an extraordinary appeal lodged by the party concerned against a previous second-instance order of the same court.
Subsequently, the legal representative of the party concerned filed a complaint with the Supreme Court on the grounds that the dismissed request should have been admitted and an alleged infringement of procedural rules.
The Supreme Court recalled that a request for cassation appeal may only be successful in special cases strictly enumerated by national law. According to Article 477(2) of the LEC, certain judicial decisions 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 the cassation appeal. With regard 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 constitutional rights (e.g. the right to justice) were also not affected by not admitting the appeal since there is no constitutionally protected right to lodge an appeal on the grounds of a procedural violation. The right to effective judicial protection is satisfied with the possibility of accessing courts and obtaining a decision based on law. The constitutional right to justice is satisfied even with a ruling on the inadmissibility of an appeal. 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. The rules governing access to extraordinary remedies may not always be favourable to the appellant.
Therefore, the Supreme Court dismissed the complaint against the 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.