Tribunal Supremo. Sala de lo Civil; 2013-09-03; MANUFACTURAS ANTONIO GASSOL, S.L.; CORTESE S.p.A.; ATS 4868/2013
Decision by national courts in the field of European Union law — ECLI:ES:TS:2013:4868A
Date: 2013-05-21
Subject matter: Lugano Convention
Origin: Spain

82013ES0521(51)_ENG_SUMJURE
JURE summary
JURE summary
The case regards a cassation appeal examined by the Supreme Court of the Kingdom of Spain against an order of 24 May 2012 of the Provincial Court of Barcelona concerning the execution of a foreign decision.
On 29 July 2012, the appellant filed a cassation appeal against an order of the 15th Section of the Provincial Court of Barcelona of 24 May 2012, which arose from the proceedings of an execution of a foreign decision before the Court of First Instance No 23 of Barcelona. Both litigants were informed of the possible reasons of a non-admission of the appeal on 16 April 2013. On 7 May 2013, the appellant expressed his disagreement with the reasons of the non-admission of the appeal and his interest in referring the case for a preliminary ruling. The respondent expressed a consent with the reasons on 26 April 2013. 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 No 1/2009 of 3 November 2009.
The cassation appeal was filed against an order issued by a second instance court concerning the enforcement of a foreign decision due to the subject-matter, therefore the access to the cassation shall be governed by the Article 477.2(3) of the Ley de Enjuiciamiento Civil (LEC).
The causes of inadmissibility of the cassation appeal may be the following: a) Formal defects concerning the absence of indication of the grounds for the cassation appeal (Article 483.2(1) of LEC, in relation with the Article 481.1 and Article 477.2 of the LEC). b) The lack of a clear reasonable explanation which is necessary to the individualisation of the raised legal problem (Article 483.2(2) of LEC, in relation to the Article 481.1 and 481.3 of LEC). c) The absence of justification of the assumptions which determines the admissibility of the cassation appeal on the grounds of the cassation interest (Article 483.2(2) of the LEC, in relation with the Article 481.2 of the LEC).
In the legal basis of the cassation appeal the appellant cited; Firstly,  Article 27 of the 1968 Brussels Convention on jurisdiction and the enforcement of the judgements in civil and commercial matters (“Brussels Convention”) and the Article 34 of the 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”) to which no cassation interest is bound. Secondly, the appellant claimed the existence of cassation interest based on contradictory case-law. The Court however stated that even though the appellant cited two judgements of different Provincial Courts to prove this claim, he wasn’t able to express clearly the contradictoriness of provided case-law. Thirdly, the appellant claimed that he didn’t have the opportunity to defend himself before the court of origin. This allegation also didn’t meet the requirements for cassation interest based on contradictory case-law. Fourthly, the Articles 207, 222 and 400 of the LEC were mentioned and transcribed without further arguments. Fifthly, the appellant argued against the existence of res judicata and mentioned various decisions regarding the negative effect of res judicata. This would also not justify the cassation interest, because the appellant does not specify how, when and in what sense did the judgement under appeal infringe or ignore the case-law. Sixthly, it is argued that the entry into force of Brussels I Regulation does not justify the review of the final judicial decision. To support this allegation the appellant cited a judgement of the Provincial Court of Barcelona, however this cannot justify the cassation interest as indicated in second allegation. Seventhly, it is argued with the principle iura novit curia. Lastly, the impropriety of the payment of the costs pursuant to the Articles 398 and 394 of the LEC was argued. The Court stated that this cannot be subject to cassation appeal nor the extraordinary appeal for the procedural infringement. The Chamber also did not find it necessary to submit a question request for a preliminary ruling.
The Supreme Court dismissed the cassation appeal as inadmissible and declared that the contested decision had become final according to Article 483.4 LEC. The court also declared the loss of deposit and ordered the appellant to pay the costs. No further appeal is possible according to Article 483.5 LEC.