KEYS TO THE RECENT AMENDMENT TO THE CIVIL APPEAL PROCEDURE

On 29 June Royal Decree-Law 5/2023 of 28 June was published in the Official Spanish Journal (BOE), which, among many other measures, includes a profound reform of the civil appeal in cassation. The main changes introduced in the appeal in cassation are as follows:

• The extraordinary appeal for procedural infringement disappears. Only an appeal in cassation may be lodged, which may be based on both substantive and procedural violations.

• One of the three grounds for an appeal in cassation is eliminated, namely the appeal on the grounds of quantum. Consequently, the appeal may only be based on the existence of an interest in the appeal or on the infringement of fundamental rights that can be protected.

• The concept of ‘notorious’ cassation interest is introduced, with the Chamber being able to appreciate that it exists when the contested decision has been handed down in a process in which the disputed issue is of general interest for the uniform interpretation of state or autonomous community law. It will be understood that there is a general interest when the question potentially or actually affects a large number of situations, either in itself or by transcending the case that is the subject of the proceedings.

• The phase of admission of the Appeal in Cassation is modified in the following aspects:

• The Judicial Secretary of the First Chamber of the SC is attributed the decision by Decree of a possible inadmissibility due to the extemporaneous filing, the lack of denunciation of the previous procedural infringement or, the lack of deposit. Although the Law does not specify it, it can be understood that this Decree can be appealed in review in accordance with Article 454.bis of the LEC.

• The Supreme Court will decide on admissibility without hearing the parties, thus eliminating the ten-day pleading period.

• In the event of inadmissibility, a succinctly reasoned ruling will be issued, not an order as provided for in the previous rules.

• The possibility is provided for the Supreme Court to terminate the appeal by means of an Order when it considers that the Provincial Court has violated the doctrine of the Supreme Court, returning the case to the Provincial Court so that it can issue a new judgment in accordance with that case law.

• As regards the form of the appeal, the form requirements demanded by the Supreme Court are incorporated into the LEC, specifically those included in the Agreement on criteria for the admission of appeals in cassation and extraordinary appeals for procedural infringement, of the Non-jurisdictional Plenary of 27 January 2017.

The reform of the civil cassation appeal came into force on 29 July 2023, being applicable to cassation appeals brought against decisions handed down after its entry into force.

The new wording of the Law empowers the Governing Chamber of the Supreme Court to determine the maximum length and other extrinsic conditions of the appeal in cassation (Art.481.8 LEC). Therefore, the Supreme Court did not take long to publish the Agreement of the plenary session of 8 September on the extension and other extrinsic conditions of the pleadings and opposition of civil cassation appeals, which will enter into force upon publication in the Official Spanish Journal (BOE).Among the rules established by the High Court, the following stand out:

• Maximum length. The previous agreement of the Plenary (Agreement on criteria for the admission of appeals in cassation and extraordinary appeals for procedural infringement. Non-jurisdictional Plenary of 27 January 2017) understood that ‘in general, a length of twenty-five pages is sufficient’, the Chamber not having considered non-compliance with this requirement as an exclusive cause for inadmissibility. However, in the 2023 Agreement, the Plenary imperatively restricts the maximum length of the pleading to 50,000 characters with space, equivalent to 25 pages. It also requires counsel to certify at the end of the appeal/opposition the number of characters contained in the pleading. This length may be exceeded only in ‘special exceptional circumstances’.

• Format. Although already provided for in the previous Agreement, the requirement is maintained that the font used must be ‘Times New Roman’, with a size of 12 points in the text and 10 points in the footnotes. In addition, the line spacing must be 1.5. Finally, the horizontal and vertical margins must be 2.5 cm.

• Title page. The Supreme Court, following in the footsteps of the Constitutional Court last March for the appeal for protection, has established the requirement that the appeal in cassation must be preceded by a cover page with the essential details of the appeal.

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