Last Updated December 21, 2018

Law and Practice

Contributed By Pérez-Llorca

Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

The SCPA establishes a two-tier system, where decisions ruled by the Courts of First Instance are subject to appeal if one of the parties lodges an appeal.

Judgments ruled by the Provincial Courts may be subject to (i) an extraordinary appeal for breach of procedure and/or (ii) an appeal in a court of cassation for infringement of the law regarding the merits of the case. According to the temporary regime established in the SCPA, the Supreme Court is currently the pertinent body to hear both extraordinary mechanisms of review except for cassation for infringement or the law of an Autonomous Community, in which case the competent bodies are the High Courts of Justice of each Autonomous Community. Furthermore, once this temporary regime is no longer in force, the SCPA provides the High Courts of Justice of each Autonomous Community as the competent bodies to decide on the extraordinary appeal for breach of procedure.

Decisions rendered by the Courts of First Instance need not comply with any specific requirements in order to be appealable to the Provincial Courts. The sole exception to this rule are the judgements issued in oral trials for amounts below EUR3,000, which cannot be appealed.

On the other hand, decisions rendered by the Provincial Courts shall follow the rules concerning the extraordinary appeals before the Supreme Court, which must comply with certain requisites to be admissible.

In order for the Supreme Court to accept to process the extraordinary appeal for breach of procedure it must be based on the following grounds:

  • a breach of the rules with objective or functional jurisdiction and competence;
  • a breach of the procedural rules governing the judgment;
  • a breach of the legal rules governing the procedures and safeguards of the proceedings, where such breach gives rise to their nullity in accordance with the law or could have caused a lack of proper defence;
  • a violation of the fundamental rights recognised by Article 24 of the Spanish Constitution in the civil procedure.

The above-mentioned infringements must be raised by the party who intends to lodge the appeal at the same stage of the proceeding as when the infringement or violation has taken place.

In order for the Supreme Court to agree to process the appeal in a court of cassation for infringement of the law, in terms of the details of the case, at least one of the following requirements must be met:

  • the case seeks to protect fundamental rights (except for those foreseen in Article 24 of the Spanish Constitution, which are arguable under the extraordinary appeal for breach of procedure);
  • the cost of the proceedings exceeds EUR600,000.

The decision on the appeal has reversal interest.

The appeal shall be lodged before the court that has rendered the judgment subject to be challenged within the period of 20 business days from the day after the date that the appellant party is notified of the court’s decision.

Once the court clerk has checked that the decision that has been challenged is eligible for appeal and the appeal has been lodged within the timeframe permitted, the court clerk shall agree to process the appeal. In the event that the decision is not eligible for appeal, the court shall decide on its admissibility.

Should the appeal be granted, the court clerk shall serve notice to the other parties in the proceeding, who will be given a period of ten business days to submit a written statement contesting or joining the appeal by challenging the part of the decision that is unfavourable to them.

After having filed the aforementioned written statements, the court clerk shall send the case file to the appellate court which holds jurisdiction to decide on the appeal.

The Court of Appeal shall only decide on the pleas upon which the appeal or the written statements contesting the appeal are based. Thus, the role of the Court of Appeal is to review the approach of the appealed decision to such pleas and rule on its rightfulness.

Admission of evidence in the context of an appeal is restricted to the following categories:

  • any evidence that may have been unduly rejected in the first instance, as long as the decision dismissing such evidence has been appealed or the appropriate protest filed at the hearing;
  • any evidence proposed and admitted in the first instance which could not be produced for reasons not attributed to the applicant;
  • any evidence relating to relevant facts for the decision on the case that may have occurred after the time limit to issue a judgment in the first instance had commenced, or after such time limit had expired, as long as in the latter case the party can prove they became aware of such evidence subsequently.

The rule behind such restriction on the submission of evidence is that all points discussed during the appeal must have been raised by the parties at first instance. Therefore only new facts are permitted to be introduced over the course of the appeal proceedings.

A deposit of €50 is the common formal requisite for the appellate courts to grant an appeal. Also, specific formalities regarding the length and content of the appeal must be fulfilled in order for the Supreme Court to grant it.

The appellate court can confirm the judgment subject to appeal or set aside such judgment partially or fully. In case of the latter, the appellate court renders its own judgment, which shall include a decision exclusively on the matters raised in the appeal or in the written statements opposing to the appeal. The appellate court’s judgment cannot be more damaging to the party who has appealed the decision than the judgment rendered by the Court of First Instance.

When the nullity of the procedures is the object of the appeal, the appellate court shall declare such nullity if it considers that a breach of procedure has taken place. Consequently, unless the breach can be rectified at the time of the appeal, the appellate court must reverse the proceedings to the stage when the breach was committed.

Pérez-Llorca

Paseo de la Castellana, 50
28046 Madrid

+34 91 436 04 20

+34 91 436 04 30

info@perezllorca.com www.perezllorca.com
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Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

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