Tribunal Supremo. Sala de lo Civil; 2019-10-23; ATS 10803/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:10803A
Date: 2019-10-23
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES1023(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 lo Mercantil n.º 9 de Madrid (hereinafter ‘the Court of First Instance’) issued an order which was later appealed by the party concerned (hereinafter ‘the plaintiff’) to the Audiencia Provincial de Madrid (Sección 28.ª) (hereinafter ‘the Court of Appeal’). The Court of Appeal by its order decided to stay the proceedings pursuant to Article 40(3) of the LEC (1), according to which a court shall stay the civil proceedings and inform the Public Prosecutors Office if the circumstances of the case may give rise to criminal proceedings. The Court of Appeal further dismissed the appeal against its order and refused to forward the case to the Supreme Court within the cassation appeal. It argued that the order in question cannot be legally appealed under cassation appeal.
The legal representative of the plaintiff filed a complaint with the Supreme Court on the grounds that the dismissed appeal and request for 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 does not fall under this exception, so the decision of the lower court must be upheld, and the appeal cannot be allowed.
The Supreme Court further recalled that neither were constitutional rights (e.g. the right to justice) 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 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.
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.