Tribunal Supremo. Sala de lo Civil ; 2019-10-16; ATS 10553/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:10553A
Date: 2019-10-16
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES1016(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 Badajoz (hereinafter ‘the Court of First Instance’) issued an order by which it declared a debtor bankrupt. The lawyer representing the debtor filed an appeal to the same court on the grounds of an alleged infringement of procedural rules. The Court of First Instance, acting as the Court of Appeal, rejected the appeal as inadmissible.
Subsequently, the Attorney General filed, in the name and on behalf of the debtor, a cassation appeal with the Supreme Court on the grounds that the ordinary appeal should have been admitted.
The Supreme Court recalled 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 the recognition and enforcement of foreign judgments pursuant to the Brussels Convention (2), the Lugano Convention (3), the Brussels I Regulation (4) or any other legal instrument of a similar nature.
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. The Supreme Court further recalled that neither were constitutional rights affected by not admitting the appeal, since there is no constitutionally protected right to lodge appeals in procedural violation and cassation. Conversely, the appeal must fulfil the admissibility requirement laid down by legislation.
Therefore, the Supreme Court dismissed the cassation appeal as substantially unfounded.
(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.