Article 10.1 of law 2-23 and its exegetical loopholes
For those of us who call ourselves avid followers of what is new in the field of civil procedure, the entry into force of Law. 2-23 on the appeal in cassation and its fascinating procedural nooks and crannies has aroused passions and the intriguing task of unravelling civil doctrine.
And, why not, often conveniently, to make the hermeneutic work of the rules a true art. The maelstrom of a practice as hostile and creative as ours provides the ideal elements for an often strategic exegesis of the loopholes or laxities of the law itself. Thus, as is to be expected, the practical marinade of the last two years has left us with a law that has produced a disruption which, with a series of rulings, full agreements and doctrine, has brought down our old house rules and allowed us to feel the strengths of the law and its opportunities for improvement.
Now, without fear of being mistaken, we dare to affirm that the most controversial novelty brought about by this new law has been the incorporation of the emulated Spanish interest of appeal as a prerequisite for access to appeal, neither as visceral as the discretional Anglo-Saxon writ of certiorari, nor as lax as the special transcendence or constitutional relevance raised by Law 137-11, in the matter of appeals for review of jurisdictional decisions before the Constitutional Court.
As is well known, this regime, which is no longer so new, incorporates specially defined grounds which the doctrine has classified as "presumptive interest of appeal".
These enjoy an automatic jurisdiction of tacit transcendence that exempts the party filing the appeal from proving a higher interest, very different from the second category, in which elements that allow us to deduce the importance - the interest - of the appeal being effectively heard by our court of cassation must be carefully developed. They all aim to protect the two-fold purpose of the appeal, the unification of precedent and the nomophilia of the law which, like a responsorial psalm, has been repeated, and legitimise these requirements.
It is clear that the legislator's aim in establishing this new regime is none other than to eliminate, once and for all, the many reckless and ostensibly improper appeals, while restoring to the appeal its extraordinary nature, in line with its embryonic purpose and, of course, to stop the imminent collapse and materialisation of the appeal procedures.
This worldview of the court of cassation as a court whose north is that of jurisprudential unification finds its genesis in the German system, which, as Alarcón argues, "would be the germ of what would later become known in Spain with the procedural reform of the year 2000 as 'interés cascional.
The incorporation of the presumed interest of the court of appeal seems to have been the legislator's Solomonic way of trying to balance the scales and relieve litigants, in certain specific cases, of the "yoke" of demonstrating the relevance that could be derived from the knowledge of their case.
This institution, which is a copy of the Spanish admissibility system, which in turn is inspired by the German grundsatzliche bedeutung2 , incorporates many of its elements; however, it did not adopt from this system these so-called grounds of "presumed" interest. Rather, everything seems to indicate that we are dealing with a vernacular and premeditated grafting in view of the nature of certain matters.
For the purposes of this article, we will study one of these grounds, included in article 10 of Law no. 2-23, which reads as follows: Article 10.- Proceedings.
An appeal in cassation may be lodged against:
- Final decisions on the merits, handed down in sole or final instance, on the occasion of the following matters or issues: status and capacity of persons; children and adolescents; consumer law; referral; nullity of arbitration awards; enforcement of foreign judgments; jurisdiction of the courts. At first glance, all of them would seem to be based on very special matters whose relevance and legal interest is easy to infer; however, we are particularly struck by the final part, which refers to the jurisdiction of the courts on the occasion of final judgments on the merits, handed down in sole or final instance. We must therefore ask ourselves what constitutes a final judgment on the merits in terms of the jurisdiction of the courts? It would seem an intellectual reflex to associate the jurisdiction of the courts with an incident of the proceedings which would consequently give rise to a final judgment on an incident, but not as a question of substance in itself from which we could derive a final judgment on the merits. How could we speak of a final judgment on the merits when dealing with such an inherently incidental question as jurisdiction? It seems a contradiction - emphasis on seems - but could we justify an appeal, or le contredit, as a ground subsumable in this category? Everything indicates that we can. The distinctive feature of the remedy of le contredit is that it is a remedy against incidental judgments whose content is exclusively concerned with an aspect relating to incompetence. In the words of Alarcón, it is a unique remedy:
A unique remedy of its kind, exclusively enabled for the attack of incidental judgments in which the judicial authority has only ruled on the relevance or a declinatory exception. Its study is therefore inextricably linked to that of this procedural plea, in particular the plea of lack of jurisdiction. Within the restrictive framework imposed by the particular nature of this appeal, we understand that the judgment resulting from its hearing before the court of appeal could not be any other than a final judgment on the merits in terms of jurisdiction.
This, considering that final judgments on the merits are, according to the doctrine: "those (...) that decide the merits of the case, i.e. the contested right between the parties; and which, if they are not challenged within the legal time limit, acquire the authority of irrevocable res judicata "4. In this case, the contested right between the parties is the aspect of jurisdiction. In these circumstances, everything seems to indicate that the judgement resulting from the hearing of a contested action or le contredit is a final judgement on the merits concerning the issue of the jurisdiction of the courts, in the same terms provided for by Article 10.1 of Law 2-23, since it puts an end to the contested right between the parties - the merits - on the only thing that could be disputed in the context of a contredit, which is the issue of the jurisdiction, or lack of jurisdiction, of a court to hear a contested action. This will be the case as long as the lower court has not exercised its power of jurisdiction and has merely ruled on jurisdiction.
We consider it appropriate that this should be the case, as a judgment resulting from an appeal should have no other outcome than to be subject to appeal in a court of appeal. It would make no sense whatsoever to oblige the parties to wait for the merits of an answer that suffers from an embryonic pathology to be known and whose outcome would be condemned to its virtual annulment, placing them in an unnecessarily prolonged situation of economic and time wastage on an issue with a high probability of inoperability and, of course, destined to inevitable failure. Let us imagine, then, a case brought before a court that is clearly incompetent, in which the declinatory exception is raised from the first degree, following its course before the court of appeal (or the court of first instance, as appropriate) on the occasion of the lodging of an appeal, which, in turn, erroneously ratifies the competence of the courts of first degree and refers the parties to serve again before the incompetent court.
Assuming that the court of first instance was indeed incompetent, how would it be compatible with the principles of procedural economy and concentration to oblige the parties to wait until they obtain a judgment on the merits of the main action, even if they know that the court is incompetent? To endorse this thesis would be a real contradiction in terms, incompatible with all the principles that guide our legal system and that are committed to its speed. It would be an ordeal to subject the parties to the ordeal of waiting for years before being able to challenge a judgment that should not even have been heard in the first place. We therefore conclude that the remedy of le contredit, with its particularities, responds to a very specific need: that of providing mechanisms that allow the immediate reorientation of a proceeding when jurisdiction is disputed, and the cassation appeal is the only possible mechanism to try to remedy such a delicate situation.
Eureka to the legislator for this ingenious additive!
Article by Álison Alarcón, Associate in the Litigation, Arbitration and Dispute Resolution department.
