Tribunal Supremo. Sala de lo Civil; 2014-05-27; D. Fulgencio; ATS 4615/2014
Decision by national courts in the field of European Union law — ECLI:ES:TS:2014:4615A
Date: 2014-05-27
Subject matter: Lugano Convention
Origin: Spain

82014ES0527(52)_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 a cassation by the Provincial Court of Barcelona.
On 18 March 2014, the plaintiff filed a cassation appeal against an order of the twelfth section of the Provincial Court of Barcelona of 6 February 2014. By this order the Provincial Court dismissed an appeal against an order by the Court of First Instance No 9 of Gava concerning the recognition and enforcement of proceedings. By this order the Court of First Instance rejected the recognition and enforcement of the judgement issued by the Court of First Instance of the 17th Circuit of Broward County, Florida (United States of America) on 12 September 2011. The cassation appeal of 18 March 2014 was dismissed by the order of the Provincial Court of Barcelona of 27 March 2014, thereby the defendant filed a complaint to the Supreme Court deeming that the cassation appeal must have been admitted to processing.  The plaintiff made a deposit to appeal pursuant to the 15th Additional Disposition of the Ley Orgánica No 1/2009 of 3 November 2009 which modifies the Ley Orgánica 6/1985 of 1 July del Poder Judicial.
The Supreme Court stated that since the state which issued the judicial decision to be enforced is not a Member State of the European Union, the Brussel Convention of 27 September 1968, the Lugano Convention of 16 September 1988, the 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“), 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“) and the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgement in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2001 (“New Brussels II Regulation”) are not applicable, even though these legal acts provide the possibility of an appeal. Because of the fact that there is no agreement between Spain and the United States of America concerning the recognition and enforcement of judgements, the general regime of the Article 954 and following of the Ley de Enjuiciamiento Civil (LEC) No 1/2000 of 3 February 1881 is applicable.
The Supreme Court also declares that even though the cassation appeal would be admissible according to the Article 477.2(3) the appeal could not succeed because the appellant failed to prove the cassational interest. When an appellant claims that a contested judgement contradicts the Supreme Court’s case-law, the cassational interest has to be proved by citing two or more sentences of the First Chamber of the Supreme court on which the infringement of Supreme Court case law should be demonstrated.
The Supreme Court dismissed the complaint and confirmed the order of the Provincial Court of Barcelona of 27 March 2014. The dismissal involves the loss of the deposit. No appeal to this order is admissible.