Tribunal Supremo. Sala de lo Civil ; 2019-11-27; ATS 12546/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:12546A
Date: 2019-11-27
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Spain

82019ES1127(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of admissibility of extraordinary and cassation appeals brought before the Tribunal Supremo (hereinafter ‘the Supreme Court’).
The Juzgado de Primera Instancia n.º 6 de Marbella (hereinafter ‘the Court of First Instance’) issued a judgment satisfying an application for a declaration of nullity of a contract of sale of shares. The judgment was later upheld by the Audiencia Provincial de Málaga (Sección 4.ª) (hereinafter ‘the Court of Appeal’).
The party concerned (hereinafter ‘the plaintiff’) filled a request for an extraordinary appeal to the Supreme Court arguing an infringement of procedural rules set by national Spanish law which was allegedly caused by the facts that (a) the Court of Appeal omitted to consider three of five grounds of the appeal submitted to it, and (b) the Court of Appeal assessed the evidence presented by the plaintiff irrationally and illogically. The plaintiff also requested a cassation appeal based on an erroneous application of Article 33 of the new Lugano Convention (1) concerning the recognition of foreign judgments, as the plaintiff alleged that the lower courts ignored the relevant facts brought by the judgment issued by the Kantonsgericht des Kantos Zug (Switzerland) that were favourable for the plaintiff.
The Supreme Court declared that an extraordinary appeal cannot deal with matters which have not been previously subject to ordinary appeal before the Court of Appeal. If the Court of Appeal omitted to deal with some grounds of appeal submitted to it, the person concerned must first complain at that court to rectify the judgment and cannot ask to solve this issue via extraordinary appeal at the Supreme Court.
The assessment of evidence carried out by the Court of Appeal cannot be successfully appealed before the Supreme Court also, unless such assessment has been obviously arbitrary or evidently erroneous. However, the plaintiff did not provide evidence that this had happened. The simple fact that the assessment of evidence did not meet the plaintiff’s expectations is not sufficient to admit an extraordinary appeal on the basis of procedural infringement.
Finally, the reference to Article 33 of the new Lugano Convention cannot serve as the basis for a cassation appeal. The recognition of foreign judgments and the consideration and assessment of evidence arising from these foreign judgments belong to issues of a procedural nature, which cannot be the object of a cassation appeal.
The Supreme Court dismissed all the plaintiff's pleas submitted to it and considered the extraordinary appeal as well as the cassation appeal inadmissible pursuant to Articles 473(2) and 483(4) of the LEC (2). The judgment of the Court of Appeal was therefore declared final.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Ley de Enjuiciamiento Civil (Code of Civil Procedure).