Tribunal Supremo. Sala de lo Civil; 2022-03-15; ATS 4580/2022
Decision by national courts in the field of European Union law — ECLI:ES:TS:2022:4580A
Date: 2022-03-15
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters;Lugano Convention
Origin: Spain

82022ES0315(51)_ENG_SUMJURE
JURE summary
JURE summary
This decision regards the admissibility of a cassation complaint addressed to the Tribunal Supremo (hereinafter ‘the Supreme Court’).
In a civil matter regarding the nullity of the contractual term, the Audiencia Provincial de Málaga (hereinafter ‘Court of First Instance’) by its order dismissed the request of one of the parties, by which the party sought the admission of extraordinary appeal against a previous order of the Court of First Instance on the ground of an alleged infringement of procedural rules.
The order of the Court of First Instance dismissing the request was brought before the Supreme Court. The Supreme Court specified that under Article 477(2) of the LEC (1) and subsequent procedural rules of the Supreme Court, a cassation complaint could only be lodged against a limited range of decisions. Generally, it cannot be filed against the orders, decisions which do not take the form of a judgment and judgments which deal only with the incidental issues. The only exception is the cassation complaint lodged against the orders issued in proceedings on the recognition and enforcement of foreign judgments under the Brussels Convention (2), the Lugano Convention (3), the Brussels I Regulation (4), the Brussels II Regulation (5) or other similar rules related to the instrument of international law.
In the present case, none of the exceptions apply. Consequently, the cassation complaint must be dismissed as unfounded.
(1) Ley de Enjuiciamiento Civil (Civil Procedure Act).
(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.
(5) 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.