Tribunal Supremo. Sala de lo Civil; 2013-04-23; ASSOCIATION OF AFFECTED AFINSA; ATS 3727/2013
Decision by national courts in the field of European Union law — ECLI:ES:TS:2013:3727A
Date: 2013-04-23
Subject matter: Lugano Convention
Origin: Spain

82013ES0423(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards the Spanish Supreme Court’s (“Supreme Court”) admissibility criteria on cassational appeals.
The Provincial Court of Madrid issued an Order on October 22, 2012 concerning the winding-up plan, under commercial law, of the company AFINSA. The plaintiff filled a cassation appeal against the latter which was dismissed by the Provincial Court of Madrid by an Order of December 17, 2012. The plaintiff filed an appeal before the Civil Chamber of the Supreme Court against the order of 17 December 2012 arguing that the appeal was in accordance with the rules of procedure.
The Civil Chamber of the Supreme Court held that according to its provisions concerning the admission criteria for cassation and extraordinary appeals for procedural infringement of 30 December 2011, pursuant to Article 477(2) and rule 1(1) of the 16th Final Disposition of the Ley de Enjuiciamiento Civil No 1/2000 of 7 January 2000 (LEC), an appeal in cassation or an extraordinary appeal for breach of procedure will not be admitted against any order or decision other than a judgment or a decision on the merits, with the sole exception of Orders issued in the procedure of the recognition and enforcement of foreign judgments under the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (“Brussels Convention”), Articles 37(2) and 41 of the 1988 Convention on jurisdiction and the enforcement of judgments 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 judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (“Brussels II Regulation”) and the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”).
The Supreme Court stated that an appeal against the order issued in a Second instance cannot succeed because the contested decision is not appealable.
The Civil Chamber of the Supreme Court dismissed the appeal and confirmed the order of the Provincial Court of Madrid. No appeal to this order is admissible according to Article 495(5) LEC.