Tribunal Supremo. Sala de lo Civil; 2019-06-05; ROJ ATS 6163/2019
Decision by national courts in the field of European Union law — ECLI:ES:TS:2019:6163A
Date: 2019-06-05
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: Spain

82019ES0605(52)_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 Juzgado de lo Mercantil n.º 1 de Murcia (hereinafter ‘the Court of First Instance’) issued an order in insolvency proceedings against a commercial company (hereinafter ‘the plaintiff’). The Audiencia Provincial de Murcia (Sección 4.ª) (hereinafter ‘the Court of Appeal’) dismissed the appeal against the first instance order and subsequently also held inadmissible a request to forward the case to the Supreme Court within the cassation appeal since the appeal was lodged against an order which cannot be legally appealed.
Subsequently, the plaintiff filed a complaint with the Supreme Court on the grounds that the dismissed appeal should have been admitted and alleged an infringement of procedural rules.
The Supreme Court recalled that a cassation appeal may only be filed in special cases strictly enumerated by national law. According to Article 477(2) of the LEC (1), there are certain judicial decisions that are excluded from the cassation appeal completely, and this enumeration also includes the order in question. The LEC allows only limited judgments issued in the second instance to be reviewed under the cassation appeal. With regard 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 of the Court of Appeal does not fall under this exception, so the decision of the lower court must be upheld.
The Supreme Court further recalled that constitutional rights (e.g. the right to justice) were also not affected by not admitting the appeal since there is no constitutionally protected right to lodge an appeal on the grounds of a procedural violation. The right to effective judicial protection is satisfied with the possibility of accessing courts and obtaining a decision based on law. The constitutional right to justice is satisfied even with a ruling on the inadmissibility of an appeal.
Therefore, the Supreme Court dismissed the complaint against the inadmissibility of 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.