Tribunal Supremo. Sala de lo Civil; 2013-12-10; MAVICO SARL MATERIAUX VIBRES ET COMPRESSES; ATS 11464/2013
Decision by national courts in the field of European Union law — ECLI:ES:TS:2013:11464A
Date: 2013-12-10
Subject matter: Lugano Convention
Origin: Spain

82013ES1210(51)_ENG_SUMJURE
JURE summary
JURE summary
The case regards a cassation appeal examined by the Supreme Court of the Kingdom of Spain concerning a non-admission of an appeal by the Provincial Court of Barcelona.
On 22 February 2013, the appellant filed a cassation appeal against an order of the 15th Section of the Provincial Court of Barcelona of 23 January 2013 which dismissed an appeal against the order of the Court of First Instance No. 42 of Barcelona. This previously mentioned order rejected the recognition and enforcement of a judgment issued by the Tribunal de Grande Instance in Ouagadougou, Burkina Faso. Attorneys of litigants were informed about the transfer of the proceedings to the First Chamber of the Supreme Court on 28 March 2013. The appellant presented himself by a statement lodged on 3 April 2013, whereas the respondent did not appear before the court. The court revealed possible grounds of inadmissibility of the appeal by an order dated 5 November 2013. The appellant was convinced that the appeal met all requirements of the LEC 2000 (1), thus a document expressing his opposition to the causes was lodged on 26 November 2013.
Since there is no agreement between Spain and Burkina Faso concerning the recognition and enforcement of judgments, both the judgment of first instance and the judgment of appeal applied the regime of Article 951 and following articles of the LEC 1881 (2). Based on this, both instances rejected the recognition because the plaintiff was not able to prove that the defendant was summoned properly before the court or was able to defend himself.
The cassation appeal could not succeed as it did not meet the condition set out in Article 483(2)(1) and Article 477(2) of the LEC 2000, which state that only judgments issued by a second instance court can be subject to appeal. The Supreme Court states that the only exception to this condition are orders concerning recognition and enforcement of foreign judgments, which are based on the following legal instruments: Articles 37(2) and 41 of both the Brussels Convention (3) and the Lugano Convention (4), Article 27 of Brussels II Regulation (5) and the Article 44 of Brussels I Regulation (6).
In conclusion, the cassation appeal is inadmissible due to the lack of appealability of the contested decision as it was adopted in a form of order and is not based on the legal instruments cited above. The Supreme Court dismissed the appeal and declared that the order of the Provincial Court of Barcelona of 23 January 2013 had become final. No appeal to this order is admissible.
(1) Ley de Enjuiciamiento Civil No 1/2000 of 7 January 2000.
(2) Real Decreto de promulgación de la Ley de Enjuiciamiento Civil of 3 February 1881.
(3) 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
(4) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(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) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.