Tribunal Supremo. Sala de lo Civil; 2019-02-13; ROJ: ATS 1547/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:1547A
Date: 2019-02-13
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES0213(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of admissibility of a cassation appeal brought before the Tribunal Supremo (hereinafter ‘the Supreme Court’).
The Audiencia Provincial de Madrid (hereinafter ‘the Court of First Instance’) issued an order rejecting an appeal against its previous decision. The appeal was filled by a natural person influenced by the original decision on the ground of alleged infringement of procedural rules.
Subsequently, the Attorney General filed, in the name and on behalf of a person influenced by the original decision, a cassation appeal with the Supreme Court on the grounds that the ordinary appeal should have been considered admissible.
The Supreme Court recalled that, as it had already explained in numerous decisions that a cassation appeal may be filed only in special cases strictly enumerated by national law. According to the LEC (1), there are certain judicial decisions, which are excluded from the cassation appeal completely, and this enumeration also includes the order as is under this cassation appeal. With regards to these decisions, the only exception of their admissibility for a cassation appeal would be a cassation appeal on a matter of law related to proceedings for recognition and enforcement of foreign judgments pursuant to Brussels Convention (2), Lugano Convention (3), the Brussels I Regulation (4) or any other legal instrument of a similar nature providing that such option follows directly from such instrument.
The contested order issued by the Court of First Instance, by which it dismissed an appeal against its own previous order, does not fall under this exception, so the decision of the lower court must be upheld. Therefore, the Supreme Court dismissed the cassation appeal as substantially unfounded. Moreover, the Supreme Court confirmed that the Court of First Instance did not exceed its powers by not admitting the ordinal appeal and decided strictly in the sense of Article 479 of the LEC.
(1) Ley de Enjuiciamiento Civil (LEC) (Code of Civil Procedure).
(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.