Tribunal Supremo. Sala de lo Civil; 2013-01-29; Valeriano; María Luisa; ATS 623/2013
Decision by national courts in the field of European Union law — ECLI:ES:TS:2013:623A
Date: 2013-01-29
Subject matter: Lugano Convention
Origin: Spain

82013ES0129(51)_ENG_SUMJURE
JURE summary
JURE summary
The case regards an appeal examined by the Supreme Court of Spain against an order of the Provincial Court of Oviedo. This order declared the inadmissibility of an extraordinary appeal for procedural infringement brought by the plaintiffs, Mr. Valeriano and Ms. Maria Luisa against a previous order, based on the lack of a decision regarding costs, based on the withdrawal of the charges.
The claims of the plaintiffs were accepted on appeal by an order of the Provincial Court of Oviedo of 29th October 2012. However, this order did not make any reference to the costs of the procedure. Considering this omission as a procedural infringement, they brought an extraordinary appeal against this first order. This appeal was dismissed by a second order of 15th November 2012 because, according to the Provincial Court, an extraordinary appeal cannot be brought against orders. Considering that this appeal should have been accepted, Mr. Valeriano and Ms. Maria Luisa decided to bring the case before the Supreme Court of Spain.
The Supreme Court declared that the extraordinary appeal for procedural infringement can be brought only against judgments, excluding therefore, the orders of the Provincial Courts or equivalent resolutions related to recognition and enforcement of foreign judgments, based on the Brussels Convention of 27 December 1968 on jurisdiction and the enforcement of the judgements in civil and commercial matters (“Brussels Convention”) and the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgements in civil and commercial matters (“Lugano Convention”), according to Articles 477.2 and 456.1 of the Ley de Enjuiciamiento Civil (LEC).
In relation to the possible breach of the right to defence, the Court considers that the right of defence recognised by the Constitution does not include the right to bring specific actions and, therefore, there is no right of constitutional status to appeal in the case of either procedural infringement or in cassation. Moreover, the Court points out that this conclusion does not violate the right to defence and the right to access to justice for three reasons: this extraordinary appeal is bounded by legislative requirements of admissibility, the "pro actione principle” regarding the right to defence does not operate with the same intensity on second and subsequent instances and, finally, that these rights are respected even with a mere resolution regarding the admissibility of the action.
The Supreme Court, declaring that the extraordinary appeal for procedural infringement cannot be brought against orders and equivalent foreign resolutions, dismissed the appeal and confirmed the order of the Provincial Court of Oviedo.