With this new regulation, the legislator seeks to strike a balance between the rapid resolution of civil court proceedings, which is of particular importance for providing a reinforced framework of legal certainty for national and foreign investors, and a certain limitation on access to appeals in cassation. However, the incorporation of the indeterminate legal concept of "notorious cassation interest" generates a certain risk that it is the media impact, and not the real impact on society as a whole, that determines the admissibility of appeals in some cases.
By means of Royal Decree-Law 5/2023, dated 28 June, the Spanish government introduced a comprehensive reform of the appeal in cassation in civil jurisdiction, with a major impact not only at a procedural level, but also outside the process itself. The focus of this reform is alleviating the Supreme Court's workload by substantially reducing the number of cases that will have access to cassation, with the ultimate aim of speeding up the resolution of cassation appeals. It should not be forgotten that, being optimistic, litigants may currently have to wait more than a year to find out whether an appeal in cassation has been admitted and, in that case, more than another year to obtain a final judgment.
The legislator is aware that delays in the resolution of legal proceedings go beyond mere procedural issues, as the courts' agility and effectiveness is a particularly relevant factor for promoting and attracting national and foreign investors, who increasingly value jurisdictions that guarantee a reinforced framework of legal certainty.
A very significant modification carried out with this reform is the reunification in a single cassation appeal of the previous extraordinary appeals coexisting to date in the civil order: the extraordinary appeal for procedural infringement, reserved for allegations of breaches of procedural rules, and the cassation appeal, reserved for infringements of substantive laws relating to the merits of the dispute. This will make it possible to overcome the problems generated in practice by the coexistence and interaction of these two types of appeal.
However, the most important change in this reform is the modification of the grounds for accessing the appeal in cassation, through which a greater margin of discretion is granted to the Supreme Court (or, where appropriate, to the high courts of justice, when the appeal is based on the relevant regional law) to decide which cases may be reviewed in cassation. As we will see, not only has the most objective criterion for access to cassation, based on the amount of proceedings, been abolished, but also the fixed grounds for dismissal of the appeal have disappeared. It is now sufficient that the dismissal is based on a reasoned decision.
Thus, one of the main amendments brought about by Royal Decree-Law 5/2023 is the elimination of automatic access to cassation, which, until now, applied to cases exceeding the threshold of EUR 600,000 in value, which often used this extraordinary appeal as a "third instance". It is not surprising that this way of accessing the cassation appeal was preferred by the majority of litigants, as it was the most objective of the available criteria. As this route has been excluded, access to cassation is restricted to cases in which there is a cassation interest, a concept that the Supreme Court has developed and relatively objectified, as well as proceedings whose subject matter is the civil judicial protection of fundamental rights.
However, this modification is accompanied by the introduction of a new route of access, the "notorious cassational interest", imported from the contentious-administrative jurisdiction. It will allow the Supreme Court (or, where appropriate, the high courts of justice) to appreciate the cassational interest with respect to matters of general interest, even if there is no "ordinary" cassational interest. This mechanism allows the high court to admit appeals in cassation on matters of particular relevance to society as a whole, which, under the previous regulation, were excluded from cassation appeals. It is not unusual for the matters that generate the most conflict and litigiousness and for which it is difficult to justify the existence of a cassation interest, in accordance with the criteria established by the Supreme Court, to be atomised into a large number of small-value proceedings.
However, greater discretion for admitting appeals, such as incorporating the indeterminate legal concept of "well-known cassation interest", is not without risk. This could mean that it is the media impact and not the real impact on society as a whole that determines, in certain cases, the admissibility of appeals and the speed of their resolution.
Overall, this new regulation attempts to strike a balance between the rapid and effective resolution of judicial civil proceedings and the establishment of certain limitations on access to appeals in cassation. Only time will tell to what extent this reform will prevent the Supreme Court from collapsing and at what cost to litigants.