Tribunal Supremo. Sala de lo Civil; 2013-10-01; Benigno; Lidia; ATS 8738/2013
Decision by national courts in the field of European Union law — ECLI:ES:TS:2013:8738A
Date: 2013-10-01
Subject matter: Lugano Convention
Origin: Spain

82013ES1001(51)_ENG_SUMJURE
JURE summary
JURE summary
On 18 October 2012 Mr. Beningo, filed an extraordinary appeal for breach of procedural law against an order of 13 September 2012 issued by the Provincial Court of Las Palmas de Gran Canaria in an appeal proceedings. The preceding proceeding before the Court of First Instance in San Bartolomé de Tirajana concerned enforcement of judgements. The Court of First Instance decided by an order of 9 january 2012 on an opposition against the enforcement of judgement. The Supreme Court pointed out that there are possible reasons that the extraordinary appeal will be dismissed as inadmissible. The appellant Mr. Beningo opposed the cause of inadmissibility. The respondent Ms. Lidia expressed her consent with the cause of inadmissibility. The appellant made a deposit to appeal pursuant to the 15th Additional Disposition of the Ley Orgánica No 6/1985 of 1 July 1985 del Poder Judicial amended by the Ley Orgánica 1/2009 of 3 November.
The Supreme Court stated that the contested decision was issued after the entry into force of the Ley 37/2011 of 10 October 2011 de Medidas de Agilización Procesal as well as the new Ley de Enjuiciamiento Civil 1/2000 of 7 January 2000 (LEC). This means that the appealability regime introduced by these laws will be applied. As this Court has repeatedly stated, as long as the transitional regime established by the final provision 16 of LEC 1/2000 is maintained, only judgements issued in appeal proceedings by Provincial Courts can be subject to cassation appeal pursuant to Article 477(2) LEC. This excludes decisions issued as orders or those which should have taken this form as well as the interlocutory judgements and incidental questions. The decisions on appeals regarding recognition and enforcement of foreign judgements under Articles 37(2) and 41 of 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”), Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses (“Brussels II Regulation”) and Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (“Brussels I Regulation”) and others of a similar nature, when the right to appeal is recognized directly by these legal acts, constitutes an exception to the mentioned provision.
The Supreme Court dismissed the extraordinary appeal for a breach of procedural law as inadmissible due to the lack of appealability and declared that the contested order had become final according to Article 473(2) LEC. The court also declared a loss of deposit and ordered the appellant to pay the costs. No further appeal is possible according to Article 473(3) LEC.