Reform of Civil Cassation following the entry into force of the Royal Decree-law 5/2023

The Royal Decree-Law 5/2023 of 28 June adopting and extending certain measures in response to the economic and social consequences of the war in Ukraine, to support the reconstruction of the island of La Palma and other situations of vulnerability, to transpose European Union Directives on structural modifications of commercial companies and the reconciliation of family and professional life for parents and carers; and on the implementation and enforcement of European Union law, which came into force on 29 July 2023, introduces, among others, a series of modifications in the regulation of civil proceedings, especially in the regulation of civil cassation, the purpose of which is to make the processing of appeals more agile and to relieve the Supreme Court.

One of the main changes is the elimination of the extraordinary appeal for procedural infringement, as separating the reporting of procedural infringements from substantive infringements is not considered operative. Although RDL 5/2023 does not include a provision expressly repealing articles 468 to 476 and the sixteenth Final Provision of the Spanish Civil Procedure Act regarding the extraordinary appeal for procedural infringement, the fact is that these provisions must be understood to be repealed due to their manifest incompatibility with the new regulation about cassation’s appeal and in accordance, moreover, with the sole general repealing provision of RDL 5/2023.

On another note, the new regulation about cassation’s appeal includes the limitation of appealable decisions to two, on the one hand, “judgments that put an end to the second instance dictated by the Provincial Courts when, in accordance with the law, they must act as a collegiate body” and, on the other hand, “orders and judgments handed down on appeal in proceedings on the recognition and enforcement of foreign judgments in civil and commercial matters under international treaties and conventions, as well as under European Union regulations or other international rules, when the power to appeal is recognised in the corresponding instrument”.

A limitation is also introduced in relation to the means of access to the appeal, specifically, these channels of access are reduced to two: the first channel requires the appeal to have a cassation interest and the second requires the appealed decision to have been issued for the protection of fundamental rights that can be protected even when there is no cassation interest, thus eliminating the previous channel of access to appeal for an amount greater than 600,000 euros.

On the other hand, according to the modifications introduced by RDL 5/2023, there is a cassation interest when the contested decision infringes the case law of the Supreme Court, when it resolves issues on which there is contradictory case law of the Courts of Appeal (“Audiencias Provinciales”) or when rules are applied on which there is no case law of the Supreme Court, in the latter case removing the requirement that the rule on which there is no case law has not been in force for more than five years.

Likewise, it will also be possible to appreciate a notorious cassation interest when the contested decision has been issued in a process in which the disputed issue is of considered of “general interest”, that is to say, when the issue potentially or effectively affects a large number of situations, either in itself or because it transcends the case that is the object of the process.

This new regulation of the appeal in cassation eliminates the possibility to challenge the admission or rejection of the appeal. The Admissions Chamber of the Supreme Court will simply limit itself to admitting the cassation by means of an order expressing the reasons why it must rule on the issue or issues raised in the appeal or, where appropriate, to rejecting the cassation by means of a succinctly reasoned order which will declare, where appropriate, the finality of the appealed decision.

The need to hold a hearing when requested by all the parties is abolished, with the Court now having the power to decide on the pertinence of holding such a hearing for the better delivery of justice.

Another novelty is the incorporation into the Civil Procedure Act of the formal requirements that had been demanded in the Agreements on criteria for the admission of appeals in cassation and extraordinary appeals for procedural infringement, of January 2017, criteria such as, the identification of the channel of access and the rule infringed, the articulation of the appeal in grounds or the summary of the infringement, among others.

Likewise, among other questions of format introduced by RDL 5/2023, the First Chamber (i.e., Civil Docket) of the Supreme Court is empowered to determine the maximum length of the cassation appeal and the opposition brief by means of an agreement that must be published in the Official State Gazette (“BOE”).

It also establishes the possibility that appeals in cassation may be resolved by means of an order in those cases in which the Chamber considers that the consolidated doctrine reported has indeed been infringed. By means of this order, the case will be returned to the court of origin so that, in accordance with the jurisprudential doctrine, it may issue a new decision.

Finally, and in accordance with the transitional regime, it should be clarified that this new regulation will only apply to appeals lodged against decisions handed down after its entry into force.