The reform of the civil cassation appeal in the Preliminary Draft of Procedural Efficiency Measures
Published on 17th Nov 2021
The reform contained in the Preliminary Draft proposes significant modifications to the current regulation of civil cassation appeals. Worth noting are the suppression of the extraordinary appeal for procedural infringements and the establishment of a single appeal, i.e., cassation, to consider all infringements, both procedural and substantive ones.
On 15 December 2020, within the framework of the Justice 2030 strategy, the Council of Ministers passed the Preliminary Draft of Procedural Efficiency Measures of the Public Justice Service (the "Preliminary Draft" or the "Proposal"). Then, in July 2021, the corresponding report on the Preliminary Draft of the Secretary of State for the Ministry of Justice was approved in the plenary session of the General Council of the Judiciary.
This ambitious Preliminary Draft revolves around three main pillars: i) to provide the Justice system with alternative dispute resolution means (ADR); ii) a deep reform in procedural legislation; and, lastly, iii) the introduction of a digital transformation plan.
Further study into the reform of procedural laws, shows that the Preliminary Draft suggests an essential modification in civil cassation appeals. In this sense, the Proposal intends to eliminate the extraordinary appeal for procedural infringements, which in reality means returning to the situation previous to the Spanish Law of Civil Procedure of 2000 (in Spanish "LEC"). Namely, all procedural and substantive infringements will be processed through the same channel of access, i.e., the cassation appeal, and the Supreme Court or, if appropriate, the High Courts of Justice, will hear them.
In this regard, the current grounds for accessing the cassation appeal are simplified so that the three reasons outlined in Article 477.2 of the LEC (the protection of fundamental rights, the amount of the appeal and the cassational interest) are reduced to two: i) the cassational interest and ii) the violation of any fundamental rights susceptible of the appeal for the constitutional protection of fundamental rights, except for those guaranteed under Article 24 of the Spanish Constitution, even if there is no cassational interest.
The cassational interest, then, becomes the cornerstone of the new cassation appeal. Therefore, according to the Proposal, there is cassational interest when: i) the resolution appealed against disagrees with the Supreme Court's doctrine of case law; ii) resolutions are made on issues on which there is a contradictory doctrine of case law in the Provincial Courts; iii) rules, on which there is still no doctrine of case law in the Highest of Courts, are applied; and iv) the disputed matter is of general interest for the consistent interpretation of State or Autonomous law.
Another issue worth mentioning is that the Preliminary Draft considers a deep reform of the admission phase, which is fully modified. It also establishes a new control of compliance with the formal requirements, to be carried out by the Counsel of the Administration of Justice. Additionally, the appeal admission is regulated as a procedure without the intervention of the parties.
Regarding the form of the appeal, the Proposal enables the Governing Chamber of the Supreme Court to set the maximum length and other formalities of the document. At the same time, rules and criteria concerning the format of documents established by the Civil Chamber of the Supreme Court in 2017 (see Non-jurisdictional Plenary Agreement on admission criteria, of 27 January 2017) are added to the articles of the LEC.
Finally, mechanisms that will contribute to reducing the excessive workload of the Supreme Court are introduced, such as the possibility of resolving an appeal using an order when the doctrine of case law had been violated, thus dismissing the resolution appealed against so that it can instruct the Provincial Court to issue a new resolution according to this doctrine of case law.
All in all, this is a major modification with a clear goal: to draft a much more agile and efficient new cassation appeal model. However, in any case, what really matters in the admission and satisfactory outcome of the cassation appeal is always making a good diagnosis of the dispute and adequately detecting the cassational interest.
