JURE summary

JURE summary

This case regards a question of the admissibility of a cassation appeal brought before the Tribunal Supremo (hereinafter ‘the Supreme Court’).

The Juzgado de Primera Instancia n.º 1 de Almería (hereinafter ‘the Court of First Instance’) decided by its order the incidental question, which was later appeal by one of the parties before the Audiencia Provincial de Almería (hereinafter ‘the Court of Appeal’). However, the appeal was dismissed.

Subsequently, the Attorney General filed, in the name and on behalf of the person influenced by the original decision, a cassation appeal with the Supreme Court alleging that the Court of Appeal should not have dismissed the appeal.

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 includes also the decision under the current 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.

While it is true that the contested decision was erroneously named as a ‘judgment’, even if it should have been correctly marked as an ‘order’, it must be concluded that this decision does not meet the criteria requested for the cassation appeal to be admitted.

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.