Tribunal Supremo. Sala de lo Civil; 2022-03-14; ES
Decision by national courts in the field of European Union law — ECLI:ES:TS:2022:939
Date: 2022-03-14
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters;Lugano Convention
Origin: Spain

82022ES0314(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards the admissibility of an extraordinary appeal addressed to the Tribunal Supremo (hereinafter ‘the Supreme Court’).
A mother of a minor child (hereinafter ‘the plaintiff’) requested the Juzgado de Primera Instancia n.º 27 de Madrid (hereinafter ‘Court of First Instance’) to recognise and enforce the judgment of a court of Colombia depriving the father of a child (hereinafter ‘the defendant’) of his parental rights. Since the child’s name in the request for recognition differed from the name given in the Colombian judgment and the plaintiff was unable to deliver the document certifying the legal change of the name, the Court of First Instance stayed the proceedings until the plaintiff did so.
The Audiencia Provincial de Madrid, Sección 22.a (hereinafter ‘the Court of Appeal’) did not grant the recognition either. The evidence that the defendant had been lawfully summoned to appear at the trial was considered insufficient.
The plaintiff filed a request for extraordinary appeal and cessation to the Supreme Court. The request was based on an alleged breach of (a) the right to obtain the adequate protection by the courts granted by Article 24 of the CE (1), (b) the right to education granted by Article 27 of the CE and (c) procedural rules governed by Article 218 of the LEC (2) guaranteeing the completeness and consistency of judgments.
The Supreme Court cited Article 46 of the Ley 29/2015 (3), according to which a foreign judgment shall not be recognised if the judgment was given in manifest breach of the rights of defence (e.g. judgment given in default of the defendant’s appearance or if the defendant was not served with the document which instituted the proceedings). This exception would not apply, by contrast, if the defendant decided not to enter an appearance when it was possible for him to do so. Although the legislation of the European Union does not apply to the current case (involving the Colombian judgment), the principles set therein could be used. Article 27(2) of the Brussels Convention (4) or Article 20 of the Lugano Convention (5) then support these presumptions.
In the present case, the Court of Appeal expressly requested the plaintiff to prove how the documents were served to the defendant. Still, the attempts to reach the defendant made by the plaintiff were considered insufficient. Consequently, the plaintiff received a reasonable decision of inadmissibility based on law. The constitutional right protected by Article 24 of the CE is not infringed when the courts make a reasoned and well-founded decision, although not in favour of the party concerned.
The Supreme Court further expressed that the order of the Court of Appeal cannot be considered either incomplete or inconsistent within the meaning of Article 218 of the LEC.
The plea based on an alleged breach of the constitutional right to education was dismissed too since the proceedings regarding parental rights do not preclude the child from being enrolled in school.
Therefore, the Supreme Court held the request unfounded and rejected it.
(1) Constitución Española (Constitution of Spain).
(2) Ley de Enjuiciamiento Civil (Civil Procedure Act).
(3) Ley 29/2015, de cooperación jurídica internacional en materia civil (Law 29/2015 on international legal cooperation in civil matters).
(4) Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
(5) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.