Tribunal Supremo. Sala de lo Civil; 2022-03-02; ATS 2970/2022
Decision by national courts in the field of European Union law — ECLI:ES:TS:2022:2970A
Date: 2022-03-02
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters;Lugano Convention
Origin: Spain

82022ES0302(52)_ENG_SUMJURE
JURE summary
JURE summary
This decision regards the admissibility of a cassation complaint addressed to the Tribunal Supremo (hereinafter ‘the Supreme Court’).
The Audiencia Provincial - Sección 25 de Madrid (hereinafter ‘the Court of Appeal’), by its orders, refused (a) an appeal lodged by one of the parties (hereinafter ‘the plaintiff’) against a previous decision of the Juzgado de Primera Instancia e Instrucción nº 5 de Collado Villalba (hereinafter ‘Court of First Instance’), (b) the request for clarification of the refusal.
The plaintiff subsequently filed a complaint to the Supreme Court alleging procedural infringement under Article 477 of the LEC (1).
The Supreme Court specified that under Article 477(2) of the LEC and following procedural rules of the Supreme Court, a cassation complaint could only be lodged against a limited range of decisions. Generally, it cannot be filed against the orders, decisions which do not take the form of a judgment and judgments which deal only with the incidental issues. The only exception is the cassation complaint lodged against the orders issued in proceedings on the recognition and enforcement of foreign judgments under the Brussels Convention (2), the Lugano Convention (3), the Brussels I Regulation (4), the Brussels II Regulation (5) or other similar rules related to the instrument of international law. In the present case, none of the exceptions apply.
The rejection of appeal cannot be understood as a breach of Article 24 of the CE (6) because the constitutional doctrine is clear that the right to appeal is conditional upon compliance with the admissibility requirements established by the legislator and limited by the interpretation of the Supreme Court.
Therefore, the Supreme Court rejected the cassation complaint.
(1) Ley de Enjuiciamiento Civil (Civil Procedure Act).
(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.
(5) Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.
(6) Constitución Española (Constitution of Spain).