New civil cassation appeal procedure introduced in Spain

On 29 June 2023, the Royal Decree-Law 5/2023, of 28 June, which approves a far-reaching reform of  cassation appeals in civil law, was published in the Official State Gazette. The new cassation appeal will enter into force on 29 July 2023.

Only remedy available and access to cassation appeals

The reform puts an end to the duplicity of extraordinary appeals in civil matters: the appeal for infringement of procedure ceases to exist, leaving only the cassation appeal. Cassation appeals can be based on the infringement of substantive or procedural rules, provided that the decision on the appeal has reversal interest (interés casacional).

The new regulation provides two channels of access to cassation appeals: appeals that have "reversal interest" and appeals for the judicial protection of fundamental rights. Both of them are appealable. The third channel of access (the possibility of bringing a cassation appeal for an amount exceeding €600,000) is eliminated.

Reversal interest

Reversal interest has become a key element of the new cassation appeal. A decision would have reversal interest if it contradicts the Supreme Court's case law, resolutions are made on issues on which there is conflicting case law among the provincial courts, or it applies laws on which there is no previous case law from the Supreme Court (and despite being in force for more than five years).

Likewise, the concept of "manifest" reversal  interest (interés casacional notorio) has also been introduced. This concept must be assessed when the appealed resolution has been issued in proceedings in which the litigious issue is of general interest for the uniform interpretation of the general laws of Spain or those of the autonomous regions. In that regard, it will be understood that there is general interest when the matter potentially or effectively affects a large number of situations, either in itself or by transcending the case at issue.

Application for leave to appeal

The new legal text incorporates a series of formal requirements into the articles of the Civil Procedure Law that, in fact, had already been included in the successive interpretative agreements of the Plenary of the First Chamber. These include identification of the channel of access to the cassation appeal and reversal interest of the decision on appeal, and the structuring of the legal grounds for the appeal (those involving similar controversies cannot be accumulated). The grounds also need to include a heading stating precisely which rule is infringed and a summary of the infringement committed.

In addition, the possibility of determining the maximum length of the appeals and of the statements of opposition as well as the format in which they must be submitted is enabled. It is expected that the corresponding agreements on the measures to be taken will be published in the Spanish Official Gazette in the coming months.

Admission phase

In addition to the examination made by the Provincial Court (Article 479 LEC), a new compliance control is added to the formal requirements, which will be carried out by the administrative lawyer of the First Chamber of the Supreme Court. Likewise, the parties will not be able to intervene in the admission procedure or make claims (only the defendant, at the time of appearing before the court, will be allowed the possibility of putting forward arguments against the admissibility of the appeal).

Under the new regulation, inadmissibility will be decided in a succinctly reasoned ruling (providencia), whereas admission of the appeal will occur through an order stating the reasons for admission (auto). None of these decisions can be reviewable on appeal.

New decision-making system

The reform includes significant developments with regard to the process for deciding on the admission of appeals. Hearings will only take place if the court deems it necessary and in those matters on which an infringement of the chamber's consolidated case law doctrine is claimed. If it is found that an infringement has eventually occurred, the appeal will be resolved by means of an order (auto) for the return of the case to the court of origin so that it can hand down a new decision based on the corresponding case.

Osborne Clarke comment

The legislative technique used for the insertion of these amendments has been highly criticised by different sectors. It has been considered that the use of the decree law (we should remember that the Constitution foresees this mechanism for cases of "extraordinary and urgent necessity") undermines the autonomy of the Parliament and prevents the deliberation, publicity and study of laws.

In any case, this proposal involves a major reform of the cassation appeal with a view to providing a more agile and efficient model. Royal Decree-Law 5/2023 seeks to eliminate the difficulties faced by the parties when they have to prepare their appeals as well as the obstacles encountered by the Supreme Court in unifying case law.