1 Celso Rodríguez Padrón, General

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CELSO RODRÍGUEZ PADRÓN, GENERAL SECRETARY OF THE GENERAL COUNCIL OF THE JUDICIARY I CERTIFY: THAT THE PLENARY OF THE GENERAL COUNCIL OF THE JUDICIARY IN ITS MEETING OF THIS DATE, HAS APPROVED THE REPORT FOR THE DRAFT OF THE LAW REGULATING HIGH COURT APPEAL IN MATTERS OF CIVIL LAW OF CATALONIA

I. BACKGROUND

On the 5th April 2010 has entered in the Register of the General Council of the Judiciary (from now on, the CGPJ), the text of the Draft for the Law regulating high court appeal in matters of Civil Law of Catalonia, remitted by the Justice Department of the Catalan Parliament (Generalitat de Cataluña), for the issue of the mandatory report.

The Committee of studies and reports has agreed to appoint Her Honour the Member Mrs. Margarita Uria Etxebarria as referee and, at the meeting dated June 10 th of 2010 approved the present report, agreeing remitting it to the Plenary of this Council.

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II GENERAL CONSIDERATIONS ABOUT THE CONSULTATIVE FUNCTION OF THE GENERAL COUNCIL OF THE JUDICIARY.

The consultative function of the CGPJ defined in the article 108 of the Organic Law 6/1985 dated July 1 st , of the Judiciary (LOPJ) is directed to the drafts of Laws and general resolutions of the State and the Autonomous Communities that affect totally or partly, among other matters expressed in the aforementioned legal precept, the “ procedural laws or that affect judicial- constitutional aspects of the tutelage at the Ordinary Courts of the exercise of fundamental rights and whatever ones that affect the Constitution Organization, operation and government of Courts and Tribunals ”.

In the light of this legal resolution, the opinion that this constitutional entity is entitled to give about delivered Draft will have to be limited to the substantive or procedural regulations established shown in the same, avoiding any other consideration about subject that the outside the Judiciary or to the exercise of the legal function that is of its competence.

Notwithstanding, the CGPJ keeps the faculty of expressing its opinion also about the aspects of the Draft that affect fundamental rights and liberties, because the prevalent position and the immediate effectiveness that they own through express resolution of the article 53 of the Spanish Constitution (CE). Concerning this point, we must specially start out from the pronouncements of the Constitutional Right’s Court, in its condition of supreme interpreter of the Constitution, which resolutions dictated in all types of processes constitute the direct source of the interpretation of the constitutional precepts and principles,

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obligating all the judges and Courts, according to what is established in the article 5.1 LOPJ.

Finally, and according to the principle of cooperation among the constitutional entities, the CGPJ has been stating the convenience to introduce in its reports other considerations, in particular, relative to legislative technique or of terminological order, with the purpose of contribution to the improvement of the correctness of the normative texts and, consequently, for their effective applicability in judicial proceedings, since it is juridical entities that, in the last instance, will have later to apply the rules submitted to report by this Council, once they are approved by the competent entity.

III GENERAL CONSIDERATIONS OF THE DRAFT

The Draft for the Law regulating High Court Appeal in matter of the Civil Law of Catalonia (from now on, the Draft) consists of an Account of Motives and an articulate Text, constituted by five articles and two final resolutions.

The Account Motives, in general, fulfils its own function, since from its tenor it is understood the aim and object of the future rule, it includes the competence title according to which the pre-legislative activity is dealt with, and in a detailed way offers and explanation of the range and contents of the different parts of the articulate text

Considering the importance, as it will be seen later, that in the present case the considerations in the Account Motives contain, a detailed analysis of its most outstanding aspects. After mentioning the competences of the High

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Court of Justice of Catalonia, concerning the standardization of the interpretation of the Catalan Law and the importance that it has for the definition of the Civil Law, the Account of Motives alludes also the instrumental relevance that for its sake the High Court appeal means, and to that sense it states an important consideration; that the application of the rules foreseen in the LEC for the High Court appeal has given place to a noticeable of the number of subjects judged by the High Court of Justice of Catalonia, and that prevents that this Court “ reaches in an effective way the challenges that the Catalan Legislation confers to it concerning the Civil Law”. And further to the above idea, it finally concludes that certain matters appertaining to the Catalan Law do not have access to High Court appeal.

From the exposed premises, the Account of Motives collects in an explicit way what is the purpose to be reached through the normative innovation that it is intended to be effected. This object is, clearly, to increase the number of matters susceptible to accede to the autonomical High Court appeal. The increase of the number of matter that is intended to reach is basically grounded, in the differential fact that the intense qualitative and quantitative development of the Catalan Civil Law, connected with the codification process started in June 2002. From this point comes the need of increasing the volume of jurisprudential resolutions, for the sake of the consolidation of the interpretation of the Catalan Civil Law in the largest possible number of matters.

Then, the Account of Motives details the concrete purpose of each one of the different articles, although, it can be summed up in the following way: to intend to increase the number of matters susceptible to High Court appeal, either by way of diminishing the “summa gravaminis” or through the flexibilization of the motives that justify the interest for appeal.

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The article text, which contents will be analyzed in detail in other sections, establishes what is the scope of the application of the rule (article1); it defines the type of resolutions that can be appealed and the access requisites to the appeal in the High Court of Justice of Catalonia (article 2 and 4); it fixes the type of infringements that can be appealed (article3) and establishes the sequences of infringement of a rule of the Catalonian Civil Legislation of a procedural character ( article 5). Lastly, the final Resolutions concern the entry in force of the rule and its application to the resolutions of the Provincial High Courts.

IV REFERENCE RULES

The legislative initiative that is the object of the present report concerns the residual competence that the article 149.1 6 th of the Constitution grants to the Self-governing Communities, in what concerns the procedural legislation. This precept attributes to the State the exclusive competence in the subject of the procedural legislation “ subject to the necessary specialties that from this order may be derived of the particularities of the substantive Law of the Self- Governing Communities” . Because of the importance that it owns for this report the most important precepts of the autonomical legislation are transcribed below a) Organic Law 6/2006, dated 19 th July about the amendment of Statute of Autonomy of Catalonia.

Article 95.1.2 and 3:1. The High Court of Justice of Catalonia is the jurisdictional entity that completes the judicial organization in Catalonia, and it is competent in the established terms of the organic law, to judge about the appeals and

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proceedings in the different jurisdictional order and for the tutelage of the rights established in the present Statute. Anyway, the High Court of Justice of Catalonia is competent in the jurisdictional orders: civil, criminal, contentious administrative, social and in others that may arise in a future.

2. The High Court of Justice of Catalonia is the last instance for all judicial proceedings started in Catalonia, as also for all the appeals that are conducted in its territorial ambit, regardless the invocated law is applicable, according to the Organic Law of the judiciary, and without prejudice to the competence reserved to the High Court for doctrine standardization. The organic Law of the Judiciary will establish the scope and contents of the mentioned appeals.

3. It exclusively belongs to the High Court of Justice of Catalonia the standardization of the interpretation of the Law of Catalonia.

Article 130 : it belongs to the Catalan Parliament to establish the specifical procedural rules that depend on the particularities of the substantive Law of Catalonia. b) Law 29/02 dated December 30 th , of First Law of the Civil Code of Catalonia

Article 111.1 : The Civil Law of Catalonia is constituted by the regulations of this Code, the remaining laws of the Parliament in the matter of the civil law, the usage and general principles of the own law.2.The usage only applies in absence of an applicable Law.

Article 111.2:1 . For its application, the civil law of Catalonia must be interpreted and integrated according to the general principles that constitute it, taking account the Catalan judicial tradition.

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2. specially, when interpreting and applying the civil law of Catalonia the civil jurisprudence of the High Court of Appeal of Catalonia and the High Court of Justice of Catalonia, not amended through the present Code or other laws, must be taken in account. The one and the other may be invoked as jurisprudential doctrine for the appeal.

The special regime that the Draft intends to establish for the so-called “autonomical appeal”, finds its place so much in the article 149.1.6 th of the Constitution as in the article 130 of the Statute of Autonomy of Catalonia (from now on, EAC), since from its contents it is understood that the Catalan Parliament is competent to establish specifical procedural regulations, whenever they are urged by the sum peculiarities of its substantive law.

In what concerns the autonomical appeal, the article 73.1 c) of the Organic law of the Judiciary (from now on, L.O.P.J .) establishes that the High Courts of Justice will be able to judge “the High Court appeal that the law against resolutions of jurisdictional entities of civil order with their seat in the self- governing community provided that the appeal is based in an infringement of regulations of the civil law, local or special, of the own community, and whenever the concerning statute of Autonomy has foreseen this attribution. The concordance of the mentioned precept, with the articles 95. 3 of the EAC and 111 of the First Law of Civil Code of Catalonia, allows inferring the normative innovation that is indented to establish so is at law with the competential frame, constitutionally and legally foreseen.

Of course, the State civil procedural legislation constitute and important reference frame, but for the sake of method, it is opted for carrying out a detailed survey of the different articles of the Law of Civil Procedure (from now

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on LEC), together with the articles of the Draft. This survey will be carried out in another section.

V CONSTITUTIONAL DOCTRINE IN MATTERS OF PROCEDURAL LAW OF THE SELF-GOVERNING COMMUNITIES. Overcoming this first sieve, does not exempt from carrying out an evaluation of another series of matters of interest. As a starting point, one must retake the above mentioned article 149.1.6 of the Constitution, in order to understand the scope and the contents of its terms. The precept to be cited is framed within the context concerning the attribution of competences exclusive of the State only, and for that reason the matters that concerns the procedural law must be understood as belonging to the State in a general character, as only exceptionally the self-governing Communities will be able to legislate about this matter whenever the following requisites concur:

a) That the Self-Governing Community has an own or special substantive law. b) That this substantive Law has some peculiarities that express a singularity. c) That the procedural speciality that is established be needed for safe- guarding the specificity of the substantive Law. d) That the State of Autonomy confers this faculty to it.

The Constitutional High Court has had occasion in different pronouncements, to define the contours of the article 149.1.6 th . When following a chronological order of STC 71/82, when tackling with the subject of the generalization of the collective legitimization and the legitimization by

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substitution, in the area of the consumer defence, considered that the provisions, that the Basque Law 10 /81 of the Consumer Statutes in that sense, did not collect any particularity of the substantive Law of the Basque Country.

The STC 23/88, that analysed the constitutionality of certain articles of the Law 3/86 of linguistic normalization of the Balearic Islands, also states the need that whatever procedural innovation of an autonomical rule, must entail the necessary safe-guard of the peculiarities of the substantive Law of the concerned Self-governing Community.

The STC 121/92 reminds us that the procedural innovations established by the autonomical law are not acceptable only because they are linked to the legal defence of those rights and interests that they materially regulate “because with the term necessary specialties the Constitution takes in account only the ones that inevitably are understood, since the point of view of the judicial defence, of the substantive legal claims configured by the autonomical regulations by virtue of the peculiarities of the law established by the own Community”.

The mentioned sentence understood that “ from the particularities of the substantive regime and the specificity of the historical Valencian leasing does not derive any necessary specialty of the regulations of the procedural channels and the legal defence of the rights and duties coming from this leasing relationship, so that the autonomical competence to judge about these leasing relationship, so that the autonomical competence to judge about these leasings does not entail a legal competence of procedural character to establish a special regulation of legislation of the procedure”.

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Because of its nearness with the present subject, the STC 47/04 must be taken as the immediate reference, which doctrine results more easily to make an extrapolation to the present case. In what concerns to the interpretation that must be given to the article 149.1.6 th of the Constitution, the legal grounds fourth of this sentence reflect the doctrine consolidated by this High Court in the terms that are transcribed below:

“The competential controversy that underlies in the present appeal of unconstitutionality does not entail any difficulty, in comparison to have happened in other procedures of unconstitutionality, for the framing of competence in the concerned matter. It is the procedural law, reserved to the state as an exclusive competence in the article 149.1.6, although this clause is not full or absolute, because the mentioned constitutional precept allows a ruling space to the Self-governing Communities, by stating “ without prejudice of the necessary specialties that in this order (procedural order) are derived from the particularities of the substantive law of the self-governing Communities” , this exception has allowed that Galicia has assumed as an exclusive competence, in the article 27.5 of its Statute of autonomy “ the procedural rules and administrative proceedings derived from the specifical Galician Law or from the own organization of the Galician Authorities”.

Now then, about the meaning and scope of the constitutional and statuary ways of competence distribution between the State and the Self-governing Communities in the matter of procedural law, and concretely, about the one collected an the mentioned article, the Constitutional High Court ahs had the opportunity to pronounce itself in several resolutions, establishing a consolidated doctrine from which can be underlined the following criteria, concerning what interests this controversy : in the first place, that the attribution to the state the exclusive competence about the procedural law is because of

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the need to safe-guard the standardization of the jurisdictional instruments (SSTC 71/1982, dated November 30 th , FJ 20; 83/1986 dated June 26 th , F52;173/1998 dated July 23rd , FJ 16c): in the second place, that the assumed competence by the self –governing Communities protected by the exception stated in the article, 149.1.6 EC, does not allow, by itself, to introduce in their regulations procedural orders because of the sole fact of having established regulation of substantive Law in the exercise of their competences, that is, to innovate the procedural order concerning legal defence of those rights and interests that materially regulate, what would mean to void the contents or deprive of any meaning the specificity as the procedural matter is foreseen in the article 149.1.6 EC, but that, as the term states “necessary specialties” of the mentioned constitutional precept, may only introduce those procedural innovations that are inevitably inferable, from the standpoint of the legal defence, from the legal substantive claims collected by the autonomical regulations, by virtue of the particularities of the Law established by the own Self-Governing Community, or, in other terms, the procedural singularities that are permitted to the Autonomous Communities have to be limited to those ones, that because of their direct link with the particularities of the autonomical substantive Law, are required by themselves (SSTC 71/1982, dated November 30 th, FJ20;83/1986 dated June 26 th , FJ2 ; 121/1992, dated September 28 th , FJ4;127/1999, dated July 1 st ,FJ5), concerning the autonomical legislator, or else, to whom assumes the defence of the Law impugned law in its case, to offer the necessary justification about the need to amend the usually applicable procedural rules because they are required by the particularities of the autonomical substantive Law, unless that from the own survey of the Law, these “necessary specialties”, may be understood or inferred (STC127/1999, dated July 1 st , FJ5).

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From the assembly of considerations that the legal grounds contain, the following ones deserve to be underlined because of their importance: a) The procedural singularities that the Self-governing Communities may establish, are limited to those ones that because of their direct link with the peculiarities of the autonomical substantive Law are required by these ones. b) The autonomical legislator or, either to those that assume the defence of the Law in this case impugned, has the competence to offer sufficient justification about the need of a special procedural regime, unless that from the own survey of the Law this circumstance is inferred.

The exegesis that the Constitutional High Court carries out, enlightens a legal regime, by virtue of which a clearly instrumental character is attributed to the autonomical procedural legislation that is grounded on the inductable defence of the peculiarities or specialities of the Law established by the Self- governing Community. Only in this case, the exemption to the application of the general regime, proceeding from the assignment to the State the exclusive competence in procedural matters, may be considered legal.

However, this sentence does not limit itself to the establishment of some interpretative guides or directives for the interpretation of the article 149.1.6 of the Constitution, since it bears also a strict analysis about a vital question that in the present case has also to be cleared, that is, if the autonomical Civil Law has particularities that necessarily need the establishment of an own procedural regime.

For the purpose, the STC 47/04 establishes a method of analysis based in the objective definition of what is the substantive Law ( in that case the Galician Civil Law).Then it advances towards concreting the peculiarities of this substantive Law and the specialties of procedural order that are established

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with the respect to the State Legislation, and finally it explains if the procedural singularities of the substantive Law unavoidably need the introduced procedural singularities, everything according to what is established in the article 149.1.6 th of the Constitution. In this section must also be mentioned the provisions that this sentence maintains against the reiteration or reproduction of procedural rules of State character, since as it is stated in the legal ground eight, ”the mere reiteration of the general procedural rules in the autonomical legislation does not simply validate such a provision (sic)”, unless that “the reiteration simply consists in the incorporation to the autonomical regulations, these being practised in within their scope of competence, certain precepts of the general procedural order with the sole purpose of giving meaning or intelligibility to the normative text approved by the autonomical Parliament”.

Finally, in what concerns this section, it can be stated that the mere circumstance of owing an own Civil Law does not authorize to establish procedural specialties, if they are not strictly necessary because of the singularities of this Civil Law. But even when this circumstance occurs, the article 149.1.6 th of the Constitution does not justify co-working up a procedural rule that offers a regulation by means of which, with the aim of reaching a normative text with a greater amount of details, some of the general provisions of the LEC are included, since that can only be made whenever the mentioned incorporation is aimed at making easier the understanding of the autonomical rule. It must be recalled that the development of the procedural legislation is because of exercising a basically state competence, and expecting the strictly necessary procedural specialties that the self-governing Communities may establish for the above mentioned purposes, the precepts of the LEC regulate in all the scope of the State, with no need that the autonomical normative states it.

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VI ANALISYS OF THE ARTICULATE TEXT Following the afore mentioned methodology, in the first place, the contents of the substantive Law of Catalonia must be defined, which peculiarities cause the amendment of the procedural regime foreseen for the appeal. Such as it is reflected in the Account of Motives of the Draft, the substantive Law that supports the innovation that is intended, is the Civil Law of Catalonia, which is summarized, basically and so far in the following Laws: - Law 29/02, dated December 30 th , of the first Law of the Civil Law of Catalonia - Law 5/06, dated May 10 th , of the book fifth of the Civil Law of Catalonia, concerning the real property rights. - Law 13/06, dated December 27 th of the human rights. - Law 4/08, dated April 24 th , of the book third of the Civil Law of Catalonia, concerning legal entities. - Law 10/08, dated July 10 th , of the book fourth of the Civil Law of Catalonia concerning successions.

Further to the mentioned regulations, and also being part of the Civil Law of Catalonia there are still in force the Legislation Decree 1/84, dated July 19 th by means of which the rearranged text of the Compilation of the Civil Law of Catalonia, the Family Code, approved by the Law 9/98, dated July 15 th and the law 10/98, dated June 15 th of stable unions of couples. As it can be seen, the legislative activity conducted by the Parliament of Catalonia, directs itself to the establishment of a true “Corpus iuris Civilis” that contains the greatest part of the own figures and entities of the Civil Law, excepting those that, by express constitutional mandate (article 148.1.8 th of the Constitution), must be regulated by the state Law.

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The “Account of the Motives” of the Draft contains this fact, when it mentions the qualitative and quantitative development of the Catalan Civil Law, that is linked to the codification process that has been started in the year 2002.It must be noted, that as a difference from what happens which the entities regulated in the Law 4/95 of the Galician Civil Law, the judicial relationship and entities that are contained in the Catalan Civil Law are not entailed in a pre-eminent way in a rural scope nor with an essentially agricultural economy. On the contrary, the Catalan Civil Law has a clear expansive vocation and the matter that is the object of specifical regulation extends itself to different ambits of the Right of privacy, such as the Human Rights, Family Rights and Real property rights and the Right of inheritance.

Once the contents of the Civil Law of Catalonia has been defined, it is needed to clear the type of procedural specialties that the Draft establishes and the innovations that is really introduce in front of the provisions of the LEC in force, and finally conclude if such innovations of the LEC in force, and finally conclude if such innovations agree with the Constitutional mandate. For this purpose, after transcribing the contents of the articles, a survey of the same together with the regulation of the LEC will be carried out.

Article1

“1.- This Law is applied to the High Court appeal substantiated before the High Court of Justice of Catalonia, concerning the matters that are ruled by the Catalan Civil Regulation. 2.-The appeal before the High Court of Justice of Catalonia for the actions or accumulated aims or perjudiciary ones that are ruled by other regulations is ruled as established in the Law of Civil Procedure”.

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The first section of the above mentioned article is limited to the establishment of the objective ambit of application of the Draft, and as it cannot be otherwise, it confirms to the appeal that must be judged by the High Court of Justice of Catalonia, concerning those matters that are ruled by the Catalan Legal Regulation.

The mandate that is in this sense it is intender to establish, agrees with what is established in the remark second of the article 478.1 of the LEC, which foresees “ that it will compete to the Civil Divisions of the High Courts of Justice to judge the appeals that are appropriate , against the resolutions of Civil Courts based in the Self-governing Community, provided that the appeal is based, either exclusively or jointly with other motives, in the infringement of the rules of Civil Law, either local or special of the own Community, and whenever the corresponding Statute of Autonomy has foreseen this attribution”.

As it can been, this precept does not introduce any type of innovation neither falls in contradiction against what is established in the Law of the State, but only fixes the ambit of application of the autonomical rule, according to what is foreseen in the LEC.However, because of essentially descriptive vocation of the precept, its contains contributes to giving sense to the articulate text.

Section two of the above mentioned article, neither means any procedural innovation since it remits itself to what is established in the LEC all what concerns to accumulations or pre-judiciary matters that may arise. However, since this precept is a superfluous one and adds nothing to what is already ruled by the procedural legislation of the State character, it is suggested to cancel this section, since this remittance neither contributes to give sense or convert in more intelligible the normative text.

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Article 2

“The resolutions of the Provincial High Courts susceptible to appeal and extraordinary appeal of procedural infringement according to the Law of Civil Procedure, dictated in trials that aim at actions and aims regulated by the Catalan Civil Procedure, can be appealed before the High Court of Justice of Catalonia”.

In order to compare if this article introduce some type of novelty concerning the judiciary regime in force in the LEC, it must necessarily be taken as the reference what is established in the Final Resolution Fourteenth-still in force of the Law of Civil Procedure, from which contents the following passages are underlined:

“1.Meanwhile it is not given the competence to the High Courts of Justice to judge over the extraordinary appeal by procedural infringement, this appeal will be appropriate, because of the motives foreseen in the article 469, concerning the resolutions that are susceptible of appeal according to what is established in the article 477.

For the preparation, lodging and resolution of the extraordinary appeal for procedural infringement the following rules will be followed: 1st The Civil Division of the High Court will be competent to judge, but in those cases where the competence of the appeal concerns the Criminal Division of the High Courts of Justice the appealed resolutions will also be able to be impugned because of the motives foreseen in the article 469 of the present Law.

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2nd An extraordinary appeal for procedural infringement only will be able to be lodged without formulating appeal against the resolutions susceptible of appeal defined in the numbers 1 st and 2 nd of section second of the article 477 of this Law.

(…)

8th Against the sentences pronounced in the resolution of extraordinary appeals for procedural infringement and appeals, no appeal will be possible.

2.- Meanwhile the Civil and Criminal Divisions of the High Courts of Justice lack of competence to judge, in a general character, about the extraordinary appeals for procedural infringement, the articles 466,468,472 will not be applicable and neither the articles 488 through 493 and section fourth of the article 476. What is established in the last paragraph of section second of the article.476 will not be applicable in those cases where it is assumed the extraordinary appeal for procedural infringement based on the motive 2 nd of the section first of the article 469 or in violations of the article 24 of the Constitution that only affect the appealed sentence.

The references to the High Courts of Justice, contained in section fourth of the article 470 and the article 472, it will be understood that will be done in the competent Division to judge the appeal”.

Concerning the temporary regime that the mentioned Resolution establishes, several High Courts of Justice have had occasion to pronounce themselves about certain points related with the extraordinary appeal for procedural infringement. Such as it is collected in the first legal grounds of the STSJ of Galicia 16.2.06 “ The High Courts of Justice are not competent to judge

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about the extraordinary appeal for procedural infringement, until this competence is conferred to them by the organic Law. For that reason, during this temporary phase the competence to judge belongs to the Supreme High Court, according to what is foreseen in the final Resolution sixteenth of the LEC, on it´s paragraph 1 st , rile 1 st since what is foreseen in this rule is that the High Court of Justice are the competent ones to judge the appeal, and the appealed resolutions will be able to be impugned by the motives established in the article 469 of the LEC, but, of course, that does not mean that these Divisions are competent to judge extraordinary appeal for procedural infringement, but the Law does not authorize to state as motives for the appeal, the ones foreseen in the article 469 of the LEC”.

“Concerning the latter aspect we must also state that the summons by the appealing party for procedural infringement is an improper one, since in fact the only thing admissible before this Court is the common appeal and for the stated exclusive motive, although from the same, other procedural infringements may be alleged, that are foreseen in the article 469 of the LEC”.

Even stronger, if possible, the ATSJ of Aragon, dated 20-11-01 collects the aforesaid thesis and adds the following: ” Because, at present this competence is not attributed to the High Courts of Justice, it remains to be stated that in order they might judge the appeal lodged by the appealing party, it would have to be grounded, exclusively or along with other motives, on the infringement of rules of Civil Law, Statutory Law or Special Law of the own Community, and whenever the corresponding statute of Autonomy has foreseen this attribution, as it is foreseen in the article 478 of the Law of Civil Procedure that collects what is established in the article 73.1 a) of the Organic Law of the Judiciary”.

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According to the above doctrine and, because that by now, the organic legislation has not given to the High Courts the competence to judge the extraordinary appeal for procedural infringement, they cannot judge about this type of appeal formulated like that. However, it does become possible that these entities judge about some of the motives, that according to the article 469 of the LEC, allow to ground the before stated appeal, provided that:

- This infringement is lodged through a common appeal, since the provisions of sections eight of the Final Resolution Sixteenth establish it.

- This appeal is lodged against the resolutions mentioned in the article 477 of the LEC.

- The invocation of some of the motives collected in the article 469 of the LEC is grounded in the regulations of the Civil Law, Statutory Law or Special Law, either exclusively or together with other motives.

The structure of article two of the Draft reconciles itself with what is established by the State Procedural Law, because it foreseen that eventual procedural irregularities, susceptible to constitute a proper motive of extraordinary appeal for procedural infringement, will be allowed to be articulated through a common appeal, provided that the actions and aims ruled by the Catalan civil regulations are followed. However, at the beginning of the mentioned precept it is stated “ The resolutions of the Provincial High Courts” susceptible of appeal and procedural infringements”. This writing gives way to the controversy that is tackled underneath.

At present, the Additional Resolution Sixteenth only allows that impugnment for eventual procedural infringements takes place in front of the

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resolutions susceptible of appeal, or what is the same, against the sentences pronounced in second instance by the Provincial High Courts, as it is established in the article 477.2 of the LEC. For that reason, the judicial proceedings that finalize the second instance will not be susceptible to be impugned for procedural infringement, until the organic legislation does not attribute to the High Courts of Justice the competence to judge the extraordinary appeal for procedural infringement. Considering what has been said, the mention of the different types of resolutions contained in the article 2 of the draft is prone to interpretative misunderstandings, since, if what is intended is to maintain the present “status quo”, the percept is redundant. But if it is intended to amend the present regulation foreseen in the Additional Resolution sixteenth, giving entry to the impugnment of the judicial proceedings that finalize the second

Instance, according to what is established in the article 468 of the LEC, which, that is to say, attributes to the High Courts of Justice” The competence to judge , as Civil Divisions, the appeals lodged for procedural infringement against sentences and judicial proceedings pronounced by the Provincial High Courts, that finalize the second instance ”, an amendment of the present regime for the Final Resolution sixteenth would certainly be introduced, that would not be based in the peculiarities or particularities owned by the Catalan Civil Law, because it is not understood under these considerations, in relation with the substantive specialties of the Autonomical Law, under what considerations it is necessary that the appeal foreseen in the article two of the Draft may be lodged against judicial proceedings of the Provincial High Courts that finalize the second instance, because of basically procedural nature of this type of resolutions. Because of all that, it becomes advisable to cancel this section.

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Article 3

1.-The appeal must be based, exclusively or together with other motives for impugnment, in the infringement of the rules of the Catalan Civil regulations.

2.- When the appeal before the Supreme High Court does not apply, the High Court of Justice of Catalonia may judge the appeal in case of allegation of a constitutional precept or the doctrine of the Constitutional High Court concerning the application of rules of the Catalan Civil Regulations, with the requisites of this Law”

In order to assess if the transcribed precept entails some type of amendment to what is established by the State regulation of procedural character, its contents must be compared with what is established in the second section in the article 478.1 the LEC, which states the following:

“Judging of the appeal, in civil matters is the competence of the Division First of the Supreme High Court.

However, the Civil and Criminal Divisions of the High Court of Justice will be competent to judge the appeals against the resolutions of the civil courts based in the self-governing Community, provided that the appeal is based, either exclusively or together with other motives, in the infringement of the Regulations of the Civil Law, Statutory Law or special Law owned by the Community, and when the concerned Statute of Autonomy has foreseen this attribution”.

Reading both articles allows understanding of the clear resemblances existing between themselves, and what is more important: that the provision

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that the Draft establishes does not alter nor amend the articulate of the mentioned article 478.1 of the LEC, what is in favour of cancelling the section first of the article 3 of the Draft that is mentioned.

The section second of the article 3 assigns the competence to judge, to the High Court of Justice of Catalonia, whenever the infringement of some constitutional precept or the doctrine of the Constitutional High Court, is related to the application of the Catalan Civil Law, provided that judging the appeal do is not the competence of the Supreme High Court. With the purpose of perceiving the scope of the provision that the Draft introduces, the same has to be placed relative to the contents of the article 5.4 of the LOPJ, which establishes that: In all cases where, according to the law, the appeal is appropriate, it will be a sufficient ground the infringement of the constitutional precept. In that case, the competence to decide about the appeal will always belong to the Supreme High Court, regardless of the matter, the applicable Law and the jurisdictional order”.

The writing given to the transcribe precept leaves few doubts its contents and projection. In the section first the pre-eminent value of the Constitutional text underlined, so that any eventual violation of a constitutional precept is a ground for lodging an appeal, provided that, according to the law, this appeal is applicable. In addition to the procedural scope that this mandate entails, the section second introduces a resolution of competential character, since it places in the Supreme High Court the faculty to judge, independently of which one is the legal nature of the exhibited aim, the infraconstitutional rule with what it is related o the concrete jurisdictional order through which the appeal is conducted.

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Having in mind all these premises, several pronouncements of the High Court of Justice have declined the competence to judge the appeals, whenever it was invoked as the motive the infringement of a constitutional precept. To this respect, it deserves to be cited, because of the territorial ambit in which they were pronounced the AATJJ of Catalonia, dated 7.11.05 ; 20.6.05; 8.5.03 and 8.6.00. In all the mentioned resolutions, the High Court of Justice declined the competence to judge, based in the mentioned article 5.4 of the LOPJ of the Judiciary, considering competent for this matter the Supreme High Court.

Different pronouncements of the Division 1 st of the Supreme High Court have defined the right application of the aforementioned article, and thus, the STS dated 31.03.09 has assumed the competence to judge the motives for appeal where the infringement or violation of some constitutional precept was expressly invoked- in concrete, the breach of the rights of the effective judiciary tutelage and equality and the principles of legal security and legal unification- whilst for the remaining motives, grounded in infringements of the autonomical Civil Law and the state one, resolved that the competence to judge belonged to the High Court of Justice of the Balearic Islands.

The ATS dated 2.12.03 also reminds of the traditional doctrine of the Division, by virtue of which it is intended to avoid that “ under the merely formal cover of an infringement of a constitutional precept, judgement of the appeal by the truly competent entity to resolve it, might be delayed”. Also, in the same line of argument as in the above resolution , the ATS dated 22/3/95, considered that the “ mere tangential allegation of the article 9.3 of the Constitution, could not alter the competence of the High Court of Justice to judge an appeal in a matter that is clearly of Statutory Law”.

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The legal grounds third of the ATS, dated 21.12.03 reflects what is the doctrine followed by the Division 1 st of the Supreme High Court whenever along with infringement of constitutional precepts, it is alleged that there is violation of substantive rules of the Civil Law of the own self governed Community, either exclusively or together with other substantive regulations of the State Law. The mentioned legal grounds include the following argument:” Lastly, because the four motives grounded in the constitutional regulations, either exclusively or together with other legal regulations, are not admittable , mentioning in the motive the sixth precept of the special Civil Law of Catalonia , the Prosecutor and the plaintiff party must be heard, in a term of ten days, about if the competence for the remaining motives belongs to the Civil or the Criminal Division of the High Court of Justice of Catalonia”.

Finally, in what concerns this section, the legal grounds second and third of the ATS dated 8/9/08 are transcribed, since from the same it can be seen, in a complete form, the doctrine of the Supreme High Court whenever on appeal has as a ground the application of the regulations of the autonomical Law and the common Law in the one side, and in the other side the infringement of a constitutional precept is reported.

“According to what this Division in its Deed of January 28 th 2008, in the appeal 738/2005, it is convenient to start this resolution underlining that the law maker, inn the article 478 of the LRC, pays attention to an objective circumstance at the time of attributing competence for the judgement and resolution of the appeal at the Civil and Criminal Divisions of the High Courts of Justice, that is, that the appeal is exclusively or together with other motives grounded, at the face infringement of regulations of Statutory Law or special Law belonging to the self-governing Community, which is an objective fact that together with the other two circumstances included in the precept define the

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competence of such entities. And it must be noted that this attribution of competence takes place so much when the regulation of the Statutory Civil law or the special Law are exclusively invoked, as when together with it, the regulations of Common Law are reported, a tinge of importance, since the law- maker does not want to deprive the High Courts of Justice of the examination of the reports of regulations of Common Law but to give them the whole judgement of the Statuary or special Law; for that reason, the only exception is established in the article 5.4 of the LOPJ where the report of the infringement of constitutional precept entails the competence of the Supreme High Court, and that it is that essentially, this regulation is ruled by the same spirit: the law- maker intends that the infringements of a constitutional regulation only be judged by the supreme High Court as he wants that the infringements of the Statuary or Special Law only be examined by the Superior High Court that will have attributed the competence: in fact, at the time of attributing competences it has been conducted a judgement of prevalence for judgement of the appeals based in the Statuary Law that only cedes before an infringement of a constitutional regulation. It must be insisted about the fact that is a priority in this distribution of competences, is to attribute to the Divisions of the High Courts the full judgement of the Common Law and for that reason, the law- maker accepts without problems, that they can also judge about Common Law when it is invoked together with a Statutory or special regulation, as also the law-maker accepts that the Supreme High Court judges the Statutory or special Law if the fact exists that in this case is fundamental the allegation of constitutional regulation. It must be noted that in both criteria of distribution, the law-maker does not divide the competence to judge the same appeal, but he attributes it to a single entity, even when for it, the interest aimed at in the previous rule must be sacrified, thus generating an exception to the general regime of judgement: concerning the attribution to the Supreme High Court when a regulation of statutory or special Law is invoked, and an exception to

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the exception : concerning the attribution to the High Courts of Justice, when the constitutional regulation is cited.

3.- Without prejudice to what has been stated, this Division understands that this distribution of competences can be sometimes used by the parties in a fraudulent way with the purpose of choosing at their caprice whether the appeal has to be seen by the Supreme High Court or by the Civil or Criminal Divisions of the concerned High Court of Justice, but the truth is that the law-maker does not offer an instrument in order to control with the needed security these situations and, however the deep procedural change that has been carried out with the issue of the Law of Civil Procedure 1/2000, nothing have been foreseen in this effect. As a palliative to this situation, this Division has been rejecting the competence in those cases where together with the invocation – either exclusive or together with other resolutions of common Law-of regulations of Statutory or special Law, the appealing party invoked violation of the article 24 of the Constitution a total groundless way, notwithstanding those are cases extraordinarily occasional where without the need of a survey of the basic question – and that is important- it is perceived that the mention of the precept is purely circumstantial, because it is understood that with it the clear purpose of the law- maker that the infringement of the Statutory or special Law be examined by the concerned High Court of Justice, is contradicted, since this purpose is directed to the definite wish to strengthen the work of the High Courts of Justice within the evolution of the development of an autonomic State”.

Considering the above considerations, it must always be understood that whenever the grounds of an appeal because of infringement of a constitutional precept are invoked, the competence to judge about it belongs to the Supreme High Court, except if that, in order to avoid that the legally established

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distribution of competences might be changed in a fraudulent way by the parties, the Division of the Supreme High Court deems that there is absolute lack of grounds when invoking the violation of a constitutional precept, and without the need of examining the basic question, already rejects competence to judge because of the stated reason.

The doctrine that we are dealing with reveals that the article 3.2 of the Draft can be left unregarded, since although it is respectful with the competence attributed to the Supreme High Court by virtue of what is established in the article 5.4 of the LOPJ, whenever it is invoked, as a real ground, infringement of a constitutional precept, in accordance or not with the autonomic regulation, it will be the latter entity-and not the High Court of Justice- the institution in charge to judge the appeal. But apart of what has already being stated, the article 3.2 of the Draft establishes a clause of competence in favour of the High Court of Justice, and as it is established in the legal ground fifteenth of the STC 47/04, it is a matter that exclusively belongs to the State legislation, and according to this legal ground, in order to introduce such type of rules, so much if they consist of a mere reiteration of the State legislation, as if they introduce some innovation, the autonomic law- maker has no competence to enact it, because it is at risk of unconstitutionality.

This statement is equally valid if what is intended is to attribute the competence to the High Court of Catalonia in those cases in which, according to the foreseen in the LEC, an appeal is not applicable (for example, when, the amount is less than 150.000 euros but higher than 120.000), because even in these cases, the Supreme High Court would be competent to judge because the competence of this entity comes” ex article 5.4 of the LOPJ” provided “ that the appeal is applicable, according to the Law”, and it concerns all of the procedural laws, whether State or autonomic one.

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Article 4

“1- The actions and aims for amounts higher than 120.000 euros have access to appeal.

2. Also have access to appeal the cases without fixed amount, those of an amount lesser than the one shown in the section 1 and those with an impossible amount to be calculated even in a relative way when the motive of the impugnment is grounded: a) In the contradiction with the jurisprudence that results from the repeated sentences of the High Court of Justice of Catalonia or the High Court of Appeal of Catalonia not left without effect. b) In the lack of jurisprudence of the High Court of Justice of Catalonia stated in the above paragraph. The time in force of the rule concerning which the lack of jurisprudence is alleged does not prevent from access to appeal in any case.

3. The allegation and verification of the requisites of section 2 are ruled by what is established in the Civil Law for appealing purposes.

In order to carry out the comparison with what is foreseen in the State regulations, the contents of the article 477 numbers two and three of the LEC must be taken as reference, and that state: 2. The sentences pronounced in second instance by the Provincial High Courts can be appealed in the following cases:

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1st When they were pronounced for the legal civil tutelage of legal grounds, except the one established in the article.24 of the Constitution.

2nd When the amount of the matter is more than 150.000 euros

3rd When the resolution of the appeal presents appealing interest.

3.It will be considered that an appeal presents appealing interest when the appealed sentence is opposed to a legal doctrine of the Supreme High Court or resolves points and matters about which exists contradictory jurisprudence of the Provincial High Courts or is invoking rules that are being less than five years in force, provided that in this last case, there does not exist legal doctrine of the Supreme High Court concerning previous regulations of equal or similar contents. When it is about appeals of the type that must be judged by a High Court of Justice, it will be understood that also exists appealing interest when the appealed sentence is contrary to legal doctrine or this legal doctrine of the High Court about regulations of Special Law of the concerned Self – governed Community does not exist.” Before estimating the significance of the innovations derived from the analysis precept, it is needed to carry out a superficial analysis of the legal regime contained in the article 477 of the LEC, so much for the ordinary appeal or the general one, as for the autonomic appeal. The cardinal point one describes the only motive on which may be grounded the appeal, that is, the infringement of the applicable regulation of the substantive law to resolve the matters object of the proceedings. However according with what have been established in the already mentioned Final Resolution sixteenth, at present, the appeal may also be articulated because of procedural infringements belonging to the article 469 of the LEC.

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In the number two, it is established that only can be appealed the sentences of Provincial High Courts dictated in second instance, provide that a series of additional requisites concur. These requisites are the following: a) That the sentences deal with the legal civil tutelage of legal grounds of substantive character. At present, according to the mentioned Resolution Sixteenth, violation of the article 24 of the Constitution may also be invoked. As the jurisprudential doctrine makes clear, it is not enough that tangentially a legal ground is mentioned, since it is necessary that is tutelage must have constituted the nuclear object of the lawsuit. b) That the amount of the matter exceeds of 150.000 euros. The General Meeting of the Division first of the Supreme High Court, dated September 12 th of the year 2000, understood that because of this , only can be appealed the sentences devolved in ordinary proceedings, provided that their amount exceeds twenty-five million pesetas. The remaining sentences devolved in ordinary proceedings that do not satisfy this requisite and the ones dictated in verbal proceedings. According to the legal doctrine in force, when the declaratory judgement is carried out because of the amount, the sentence cannot accede to appeal if this amount exceeds 150.000 euros, because the appealing interest only can be invoked when the proceedings have been followed because of this matter. It is that way, because as it is established in the legal grounds first of the STS dated 27/5/09 ( among others) “It is repeated doctrine of this Division that the ways of access to the appeal established in the section 2 the article 477 of the Law of Civil Procedure are different and exclusionary, the proper way of access in the matters followed because of their amount being the ordinal second of the above precept, what demands an economical value of the lawsuit higher than 25.000.000 pesetas – 150.000 euros- according to the Royal Decree 1417/2001, dated December 17 th , and it prevents the access to the appeal in smaller accounts, as also in those where the amount is not defined, and the way through the ordinal 3 rd of this article

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477.2 cannot be used, that is, the one of “appealing interest”, as it is collected in the Judicial Proceedings of this Division, dated January 13 th , February 24 th and march 31 st of the year 2009, among many others”. The application of this doctrine leaves out the appeal for sentences dilated in ordinary proceedings, that have been substantiated because of the amount whenever it is less than 150.000 euros or that it was not defined or that cannot be estimated, as also the once dictated in a verbal proceedings. c) That the resolution of the appeal has an appealing interest. The existence of this interest is defined by the own Laf of Rites and it must be observed in the following cases:

1. When the appealed sentences goes against the legal doctrine of the Supreme High Court. It will be understood that this requisite is achieved when two or more sentences of the Supreme High Court are cited and it is sufficiently discussed the violation of this doctrine. 2. When points or matters are being resolved about which exists jurisprudence contrary to the Provincial High Courts basically, according to the criteria established by the above mentioned General Meeting, it is necessary that at least two final sentences have resolved the contrary of the pronouncements of another two equally final sentences, dictated by different Provincial High Courts or by Departments of them or different High Courts. The sentences invoked must deal with controversies substantially equal, and the matter in which the contradiction occurs will have to be reasoned. 3-When regulations are applied that exist in force since more than five years ago, whenever there is no established legal doctrine of previous regulations of equal or similar contents. He “dies a quo” is fixed considering the date of entry in force of the regulation and the “dies a quem” coincide with the date of pronouncement of the appealed sentence.

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It must be added, that based upon the appealing interest, only have access to these appeal the sentences dictated in ordinary proceedings and verbal proceedings because of their matter. The revolved in special proceedings mentioned in the Book IV of the LEC, and also the ones of acknowledgement and enforcement of foreign sentences.

In what concerns the particular legal regime foreseen to the appeal that must be judged by the High Courts of Justice, it must be stated that, according with the literality of the second paragraph of the article 477.3 of the LEC, the appealing interest is also extended to those cases in which either does not exist a doctrine of the High Court of Justice about regulations of special law of the Self-governing autonomy o the appealed sentence is contrary to this doctrine. In spite of the simplicity of the addition that the mentioned paragraph contains, the interpretation about the same, that the High Court of Catalonia extracts from it, according to the remaining provisions of the article 477, numbers two and three, is different to the doctrine followed by the Supreme High Court, since as it states, among others the ATSJ dated 29/10/09, the ways for appeal concerned in the numbers two and three of the above mentioned article are not rejectful, as is reflected by the legal grounds third that is here partially transcribed.

“This Division repeatedly maintains that the ways to appeal foreseen in the article 477.2 LEC are not rejectful and become communicable in the sense that where the law makes no distinction it is not right to distinguish and that it is not perceived that there is equidistance between the articles 249.2 and 250.2 of the LEC with the article 477.2.2 nd LEC in one side and the articles 249.1 and 250.1 LEC with the article 477.2.3 rd LEC in the other side, concluding that all sentences dictated by the Provincial High Court may be appealed by appealing interest if they lodge it or because of the amount –if they reach it- whatever the

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followed procedure may be: for which reason there is nothing contrary to that the proposition for appeal be lodged by the appealing party in an alternative way, or that, when the established requisites for each case in the article 479 LEC concur, the admission by a different way the initially proposed may be decided, what is contrary to the repeatedly maintained doctrine of the Supreme High Court TS ( collected in the reinstatement appeal rejecting the claim by the High Court); and it is needed to express that this Civil Division is sovereign for the interpretation of the procedural requisites of the appeals of its competence (SSTSJC 27/2002 dated Sept.16 th ) 37/2002 dated Nov. 28 th , 44/2003 dated Dec.1 st 23/2004 dated July , 15/2006 dated April 24 th .,30/2006 dated Jul.17 th and 43/2006 dated Dec.21 st ; and STSJC 12/2008 dated March 27 th , among others) (…).”

According to this doctrine, the appeal will be admittable whenever the matter exceeds the amount of 150.000 euros, or else when it entails appealing interest, in keeping with what is established in the article 477.3 of the LEC, with being determinant, for this purpose that the followed procedure has been fixed considering the amount or because of the matter, so that the appeal may be lodged jointly or alternatively by both ways. Having in mind the above premises, as an outline without prejudice of a more detailed development, the innovations that the article 4 of the Draft intends to introduce are: a) To diminish the threshold of the amount to 120.000 euros, so that it is going to increase the number of appeals indepentdenly of the appealing interest. b) The possibility of access to appeal of matters of an amount of less than 120.000 and of those impossible to be calculated, because of appealing interest as defined in the letters a) and b) of the cardinal second, is paired with the doctrinal line maintained by the High Court of Justice of Catalonia.

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c) The removal of the requisite of antiquity of the regulation concerning the article 477.3 of the LEC, does not mean a real incidence. This subject it will be later dealt with. d) The eventual contradiction of the sentence against the legal doctrine of the extinct Court of appeal of Catalonia that has not been left without effect, constitutes also a case of appealing interest.

Once it has been underlined which are, the general lines of the consequences from the provisions contained in the article 4 of the Draft it should be analysed, in the light of the constitutional doctrine that has been mentioned, if the particular procedural regime that it is intended to be established finds justification in the singularities of the Civil Law of Catalonia, till the extreme of constituting a “ necessary specialty”. Beginning with the inclusion of the doctrine still in force of the Court of Appeal of Catalonia, it must be stated that this Court was established in the year 1934 and was the object of mention by the Final Resolution second of the Legal Decree 1/84 dated July 19 th by means of which it is approved the rearranged text of the Compilation of the Civil Law of Catalonia under the following terms:

“The legal doctrine of the Court of appeal of Catalonia, in matter of the Catalan Civil Law, not changed by the present compilation or by other laws, it is part of the Catalan legal tradition, and can be invoked as legal doctrine for the purposes of appeal.”

This final Resolution was in force till the 31.12.03, the date when already the mentioned article 111.2, in its section second of the Law 29/02, dated December 30 th , known as the First Law of the Civil Code of Catalonia, also established that the legal doctrine of the Court of Appeal of Catalonia, not changed by this Code or other Laws, could be invoked for the appeal.

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Considering the contents of the autonomic substantive regulation, it is easily understood that the innovation introduced by the Draft agrees with a singularity owned by the Catalan Civil Law, and for that reason there is no objection against the possibility that the appeal may be grounded in the infringement of the legal doctrine of the extinct Court of Appeal of Catalonia that has not been left without effect.

The remaining innovations are connected to the desideratum –such as it is inferred from the Account of Motives- to reach a higher volume of appeals to be resolved by the High Court of Justice of Catalonia and, in this way to favour the consolidation of the legal doctrine by means of the confirmation or amendment of the pre-existing one. Also, the Account Motives contains a particular mention of the removal of the time in force clause of the rule in the LEC, since it is considered, anyway, that it is a priority to simplify the access of any type of matter to the autonomical appeal, independently of the date of entry in force of the concerned regulation. For the sake of method, it is deemed convenient to examine jointly the transcendence and real range of the decrease of the litigated amount to the 120.000 threshold and the regime that is established for deciding about the appealing interest.

Because of its importance for this case, it is useful to add to this report the considerations made by the Constitutional High Court about the adequacy of the removal of the requisite of the litigated amount, foreseen by the Law of the Parliament of Galicia 11/93, that regulates appeal in matters of special Civil Law, considering the particularities of this substantive regulation. Concerning this, the legal grounds eleventh of the STC 47/04 offers an ample dissertation about the basic agricultural character of a great part of the entities of Galician Civil Law, with express cite of the most relevant figures. Starting from this fact, the Constitutional High Court understand that the removal of the requisite of

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“summa gravaminis” is adequate to the mandate of the article 146.1.6 th of the Constitution, because that way, it is avoided that the weighership of the amount might hider the consolidation of a legal doctrine around the own institutions, that in many cases induced lawsuits for small amounts. The most outstanding considerations of the mentioned legal grounds are the following:

“On the other hand, it has special relevance, from the perspective of entailing this procedural specialty (removal or suppression of the litigated amount in order to access to the statuary appeal) to the substantive law and to its already stated particularities, the function assigned to the appeal. Of this extraordinary impugnment means, that is judged by the High Court of Justice of Galicia, is directed not only to the tutelage of the litigated rights (ius litigatoris), but also and essentially to the protection of the applied regulation and interpreted by the lower Courts, thus allowing the establishment of jurisprudence and the uniformity for the application of the substantive Civil Laws (ius constitutionis), if the Statutory appeal, we say, intends or is directed to these purposes, the application of the requisite of a minimum litigated amount in order to access to Statuary appeal, in fact, would prevent the uniformity in the interpretation and application of the Civil Law of Galicia, which entails the risk of different criteria around the same judicial-private entity being part of its own Civil Law, and without effective possibility of its standardization by means the jurisprudence emanating from the Civil Division of the High Court of Justice of Galicia, through the sentences dictated for appeal.

Because of this we must conclude, that according to the exposed constitutional doctrine, we must perceive the existence of a connection or direct link between the particularities of the Civil Law of Galicia ( of its different entities integrating the specifical Galician Law), and the procedural specialty established in the final section of the article 1 a) of the impugned autonomic

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Law, when it prescribes that the Sentences pronounced by the Provincial High Courts of Galicia are susceptible to appeal “whatever the litigated amount might be”, since this procedural innovation finds adequate constitutional justification of the competence acknowledged to this self-governing Community through the article 149.1.6 CE, concerning the article 27.5 of its Statuary Regulation, and so, we must declare the constitutionality of the mentioned final section”.

The reasoning that the sentence we are dealing with offers, give rise to the thought about if the nature that states the Account of Motives in respect of the Catalan Civil Law justifies decreasing the “summa gravaminis” established in the number two of the article 477 of the LEC and followed by the establishment of a differentiated procedural regime, as is stated in the article 149.1.6 th of the Constitution, or if such a pretension simply has the aim of extending the quantitative ambit of the so- called autonomic appeal, with the drive – in the words of the Constitutional High Court- “to innovate the procedural regulation concerning the legal defence of those rights and interests that materially regulate, what would be equivalent to void the contents or deprive of all sense the specificity with which the procedural matter is perceived in the article 149.1.6 of the Constitution”. In other words, the essential is, to these effects that the innovation or procedural novelty that it is intended to establish obeys the need to satisfy an inescapable exigency, derived from the particularities of the Catalan substantive Law.

The account of motives does not underline any entity or legal figure specially of the Catalan Civil Law to these effects. However, the Justificative report of the Draft, worked up by the General Manager of the Law and Judicial Entities of the Justice Department of the Parliament of Catalonia, makes special emphasis in warning that the relevance of what it calls “jurisprudence of the appeal” of the Civil Law of Catalonia is even weaker if the type of matters

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that have access to autonomic appeal is analysed, because, just as an example, it is shown that the half of the subjects are circumscribed in one figure of the Family Code, that is the one foreseen in the article 41 of this Code, while other matters, relative to real property rights, the inheritances and the legal entities, do not have access to this appeal because they do not reach the minimum amount foreseen in the LEC, or else, due to the difficulty in this cases to fulfil the requisites concerning the appealing interest or the interest of the law. In support of the removal of the requisite of the time in force of the rule that must not be longer than five years, as established in the article 477.3 of the LEC- the mentioned Justificative Report understands that, this way it would be avoided that important parts of the Catalan Civil Regulation are deprived of jurisprudential doctrine , taking in account that the process of development and codification of the Catalan Civil law has given place to important legal innovations, which must have the possibility to access to autonomic appeal.

As it can be seen, the Justificative Report maintains a line of arguments that syntonizes with the one followed by the Account of Motives , and however it offers a higher richness of nuances at the time of justifying the procedural novelties that it is intended to introduce, since it does not limit itself to proclaim the pretension that the legal doctrine coming from the High Court of Justice of Catalonia has incidence over the whole of the matters that form the Catalan Civil Law, since it also underlines the inconveniences that the application of the legal regime foreseen in the LEC have caused to the concrete matters that are expressly underlined.

For a correct evaluation of the different aspects concerning the article 4 of the Draft, it is considered convenient to deal with first with the themes concerning the resolutions that bear incidence on the appealing interest, since it is a pre-eminent question, and then, in a second phase to elucidate the

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problems posed by decreasing the amount and the reference to the removal of the antiquity of the infringed regulation.

After having mentioned that, it is adequate to deal with the different questions that cause the first paragraph and the letters a) and b) of the article 4.2 of the Draft. The writing of the mentioned precept is not radically incompatible with the paragraphs two and three of the article 477 of the LEC, since the Draft limits itself to proclaim that the autonomic appeal, based in the appealing interest that concerns the letters a) and b) will be admittable independently of the amount of the subject, even when such amount is impossible to be calculated, whilst the LEC only details when the appealing interest has to be appreciated, without specifying if this interest also concurs when the above circumstances also exist. In a shorter way, the article 2.2 of the Law 4/2005, about the appeal in Aragon, also establishes a specifical rule to determine the appealing interest, that is substantially coincident with what contains this Draft. This article foresees that: “In the remaining cases, when the resolution of the appeal owns appealing interest. The appealing interest can be invoked even when the determination of the procedure had been made considering the amount”.

Considering the before stated divergence of criteria that maintain the Division First of the Supreme High Court and the Civil Division of the High Court of Justice of Catalonia that has been mentioned, the change foreseen in the first paragraph and the letters a) and b) of the article 4.2 of the draft is revealed as an attempt to codify the doctrine established by the latter Court mentioned, in order to guarantee, by means of a legal coverage, that the autonomic appeal grounded on the appealing interest be made extensive to all sorts of subjects independently of their amount, even when the procedure to be followed had been fixed by the litigated amount. Certainly, the purpose

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mentioned connects with the aim of granting a greater qualitative and quantitative extension of the autonomic appeal, that is carried out by means of the positivation of the doctrine of the Superior High Court of Justice of Catalonia, that, as it has been said, is different from the one established by the Division First of the Supreme High Court.

After having been exposed the aforementioned considerations, the advantages that the legal establishment of the legal doctrine settled by the High Court of Justice of Catalonia have to be recognized, in order to strengthen the legal security and favour more admission possibilities for the autonomic appeal, since the writing that the Draft proposes syntonized with the rules established by the Law of Aragon mentioned above, clarifies certain aspects established in the LEC and fix, that way, a normative regime in contraposition with the interpretative line followed by the Supreme High Court.

Furthermore, the direction followed by the Draft in this aspect it not opposed to the parameters established in the constitutional doctrine in order to estimate the viability of the procedural specialty introduced by the autonomic regulation; in spite of this, it would be desirable that, according with the legal argumentation that the legal grounds eleventh of the STC 47/04 offer in the Account of Motives those considerations were reflected that are stated in the mentioned Justificative Report.

After having the above mentioned detailed accounts, the present report enters in the theme that the planned decrease of the amount for access to the autonomic appeal may cause. The decrease of the amount fixed by the LEC – as is intended by the Draft- is a measure that objectively favours the increase of possibilities of access to appeal of the matters that are proper of the Catalan Civil law.

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The STC 47/04 had the occasion to pronounce itself concerning the removal of the requisite of the amount foreseen in the article 1 a) Law 11/1993, dated July 15 th , about Appeal in matters of Special Civil Law of Galicia. This sentence considered that this measure was not contrary to the Constitution.

The article 2 of the Law 4 / 2005, dated June 14 th about Statutory Appeal of Aragon, dismisses the “summa gravaminis” to three thousand euros- a much more important decrease than the one proposed by the Draft – and in the Account of motives of this Law, the mentioned decrease, as also for other adopted measures, it is justified in order to make it easier, to lodge the appeal in the most part of lawsuits. However, against that Law no notice of appeal for unconstitutionality was lodged.

Having these premises in mind, it must be concluded that it is not possible to analyze the constitutionality of the decrease of the amount that the Draft carries out, in the light of the unique existing sentence of the Constitutional High Court- the one concerning the Galician Law- since that one concerned a case of removal and not of a simple decrease of the “summa gravaminis”, and because the removal was analysed in view of the prevailing agricultural ambit of the Galician Civil Law.

However, it would be convenient to state in the Account of Motives- such as it is otherwise done, in the Justificative Report- the reasons that make specifically necessary that measure considering the specialties of the Catalan Civil Law.

Another aspect to be analysed, concerning the article 4, deals with the removal of the requisite of antiquity of the rule established in the third section of

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the article 477.3 of the LEC. This section deserves a different survey, since as it has already been explained in previous passages, when the sentence appealed uses regulations which period in force does not exceed five years, the appealing interest will be justified, provided that three exists no doctrine of the Supreme High Court concerning previous regulations, of equal or similar contents. This requisite, established for those appeals to be judged by the supreme High Court, it must be considered as nuanced by what is stated in the second paragraph of the article 477.3 of the LEC, that in fact regulates the peculiarities of appealing interest when the appeal deals with regulations of Special Law of the Self-governing Community, and consequently, the High Courts of Justice must judge. This paragraph expressly states- as a justification for appealing interest – that the fact that does not exist any doctrine of the Supreme High Court about regulations of Special Law of the Self- governed Community, without adding any other type of conditioning or addendum concerning the antiquity of the presumably infringed regulation.

This piece of information permits to affirm that the provisions of the paragraph second of the article 477.3 of the LEC configurate an additional subject, that is susceptible to ground an appealing interest with autonomy in front of the paragraph one of the mentioned number and article. For that reason, the mere absence of legal doctrine of the Superior High Court of Justice will always justify the existence of appealing interest, independently of the time span of being in force the special regulation of the Self-governing Community that is applicable.

This point of view has been maintained by the High Court of Justice of Catalonia; in fact, legal grounds third of the STSJ of Catalonia, dated 14/10/02 collects the following argumentation:

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“That the derogation by the Catalan law 22/2001, dated December 31 st , of the article 11 of the 13/1990, dated July 9 th , has no incidence over this case nor over those that may have arisen before its entering in force, for which reason, the appealing interest that is alleged in this appeal because of lack of jurisprudence by this Division it is clearly enclosed in one of the specific matters stated in the paragraph last of the art. 477 of the law of Civil Procedure. For that reason it is appropriate to reject the opposition motives to the admission of the appeal without it being a hindrance that the Catalan Law 13 / 1990, dated July 8 th is more than 10 years in force, since up to date there exists no legal doctrine of the High Court about the matter and the precepts that are now appealed.

These observations give place to the consideration that the provision of the Draft, concerning the removal of the time requisite established in the article 477.3, first paragraph, does not mean any innovation in front of the regulation foreseen in the own LEC. The thesis that validated is also restated by what is established in the article 483.3 rd , paragraph second of the LEC, that differing from what is foreseen in the paragraph first, does not mention at all, the antiquity of the infringed regulation, since it limits itself to the contemplation, as a motive of admission of the appeal that must ne judged by the High Court of Justice, of the fact that the mentioned Court has established doctrine over the argued regulation or over a pervious one of equal or similar contents.

All these reasons advise the removal of this section, because apart from reflecting no novelty at all, neither contributes to clarify the contents of previous sections.

It remains to analyse the contents of the number three of the article 4, that as it can be seen , remits itself to what is established in the LEC,

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concerning all that is relative to the allegation and accreditation of the appealing interest. The writing of this precept suggests a simple reasoning that links some of the considerations exposed in this report: The resolutions of the LEC are operative without the need that the autonomic regulation reaffirms its applicability to the case, and particularly because, as it happens in this case, the provision of the number three of the article 4 of the Draft does not arise from the need of clarification or making intelligible the text of the precept.

Article 5: “if the infringement of a regulation of the Catalan Civil Procedure of procedural character is considered, the Court has to order the appropriate measure to make it effective.” By including this precept, the pre-law-maker, implicitly assimilates the regulations of objective character contained in the Catalan procedural regulation to the others that are also included in this Regulation, participating in a substantive nature in a strict sense. This comparison does not result extravagant, because the reason of being of these procedural versions lies in the intimate link that they maintain with certain entities of the Catalan Civil Law, as a difference with what uses to happen with the procedural regulations contained the laws of rites. From this perspective, the article 5 of the Draft articulates a formula able to give, in a decision for appeal, an effective protection of the procedural specialties connected with the Catalan substantive law that is basically equal to the one that offers for singularities of the material Law. This protection for procedural infringement in a Division for appeal is not alien to the own LEC ( article 468) although it had to include in the resolution final sixteenth a temporary regime for extraordinary appeals because of legal technique. These technical reasons already disappear for Catalonia, since the article 130 of the Statute of autonomy in force – with status of Organic Law- already foresees

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that the Catalan Legislation may dictate the specifical procedural regulations that come from the particularities of the substantive Law of Catalonia , and consequently , attribute to the High Court of Justice of Catalonia the competence concerning appeal because of procedural infringement, in the line of the mentioned article 468 of the LEC. For all this, having in mind the close link that the procedural specialties included in the Catalan Civil regulations maintain with the substantive regulations, the specificity contained in the article 5 of the Draft, in some ways also responds to the need of safe-guarding the proper specificities of the autonomic substantive law. However, the writing given to the precept is ambiguous and undetermined, because the article 5 of the Draft limits itself to ordering the Judge, that he adopts the necessary measures for the application of the procedural regulation what further to being obvious, lacks of the ineluctable precision and exactitude concerning the type of concrete measures that should be adopted for the case the precept refers to. For that reason, a writing that defines with more clarity the type of remedies that will have to be adopted by the Legal Authority, once the infringement of these types of regulations has been checked.

FINAL DISPOSITIONS First: This law is applicable to the resolutions of the Provincial High Courts, pronounced since its entry in force.

Second : This law enters in force one month after its publication in the Official Gazette of the Parliament of Catalonia.

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The contents of these final Dispositions needs few commentaries. Fixing the period of one month for the entry in force of the regulation, once it is published, responds to the purpose of establishing a period of “vacation” that seems reasonable. The provisions of applying the new legal regime to the resolutions of the Provincial High Courts, dictated since the entry in force of the regulation, imply the adoption of a point of view according to the procedural systems. It remains only to mention, according to what is exposed when analysing the article 2, about the convenience to change the word “resolutions” by “sentences”

VII CONCLUSIONS FIRST .- The Draft of the Law regulating the appeal in matters of the Civil Law of Catalonia has the purpose of establishing a broader way for access to the autonomic appeal. Without prejudice to the considerations formulated in this report, the purpose that has been mentioned, in general is adapted to the previsions of the article 149.1.6 th of the Spanish Constitution. A precept that attributes to the State the competence for the development of the procedural legislation, excepting the necessary procedural specialties derived from the particularities of the substantive Law of the Self-governing Communities.

SECOND. - The number one of the article first does not introduce any type of innovation and neither enters in contradiction with what is established in the States Law, since it only frames the ambit of application of the autonomic regulation, in consonance with what is established in the LEC. However, considering the essentially descriptive purpose of the precept, it contributes to give sense to the articulate text.

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THIRD. - The section two of the mentioned article neither means any procedural innovation, since it remits to what is established in the LEC everything concerning accumulations or pre-judiciary matters that may arise. Notwithstanding, since this precept is a superfluous one and adds nothing to what is already ruled by the procedural law of state character; the removal of this section is suggested.

FOURTH .- The reference to “ the resolutions of the Provincial High Courts susceptible of appeal and extraordinary appeal for procedural infringement” that is collected in the article 2 of the Draft is prone to interpretative misunderstandings, since if only what is intended is to maintain the present “ status quo “, the precept is redundant. But, if it is intended to alter the present regulation foreseen in the Final Disposition sixteenth of the LEC, expediting this way the impugnment of the judicial proceedings that put and end to the second instance, according to what is established in the article 468 of the LEC, an amendment to the present regime foreseen by the Disposition Final sixteenth, would be introduced, without the necessary support in the peculiarities or particularities owned by the Catalan Civil Law, since it cannot be perceived under what reasons, related to the substantive specialties of the autonomic Law, it is necessary that the appeal foreseen in the article two of the Draft may be lodged against judicial proceedings of the Provincial High Courts that finalize the second instance, because of the evident procedural nature of this type of judicial proceedings.

FIFTH .- The section first of the article three reproduces, in the essential the contents of the second paragraph of the article 478.1 of the LEC. For this reason, it contents is superfluous, and because of that, it is suggested it is removed from the article text.

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SIXTH .- The article 5.4 of the LOPJ has a double contents. On the one side, it introduces a mandate of basically procedural character, by virtue of which, in all cases where, according to the law, the appeal is appropriate, it will be sufficient ground the infringement of a constitutional precept. On the other side, the section second establish a mandate of basically competential nature, when it establishes that in the case, the competence to decide about the appeal always belong to the Supreme High Court, whatever the matter may be, the applicable law or the legislation order. Having in mind these premises, no case is perceived that can be judged by the High Court of Catalonia by what is established in the article 3.2 of the Draft, since even when it were the autonomic procedural law- and not the State one- the one that propitiated lodging the appeal, the Supreme High Court would continue being the competent entity, to judge, because the mention to the law that is made in the paragraph first of the mentioned article, includes the State law and the autonomic. In addition to the mentioned considerations, the fact that this precept has a competential side goes also in favour of the removal of the section second of the article 3, since as it is reminded in the legal grounds of the STC 47/04, the autonomic law-maker locks of competence to introduce regulations of competential nature, in as much they consist in the mere reiteration of the State legislation or if they introduce some type of novelty.

SEVENTH .- The decrease of the amount fixed by the LEC- as it is intended by the Draft- is a measure that objectively favours the possibilities of access to appeal in matter of Catalan Civil Law.

The STC 47/04 had occasion to pronounce itself concerning the removal of the requisite of amount foreseen in the article 1a)law 11/ 1993 dated July

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13 th , about Appeal in matters of Special Civil Law of Galicia. This sentence concluded that this measure is not contrary to the Constitution.

The article 2 of the Law 4/2005, dated June 14 th , about the Statutory Appeal of Aragon, reduces then “summa gravaminis” to three-thousand euros a much larger reduction than the one intended in the Draft – and in the Account of Motives of this law, the mentioned reduction, as also other adopted measures, is justified in order to make easier the lodging of appeal in a larger number of lawsuits. However, against this Law, no unconstitutionality appeal was lodged.

Having in mind all these premises, it must be concluded that it is not possible to analyse the constitutionality of the reduction of the amount, intended in the Draft, in the light of the single existing sentence of the Constitutional High Court-concerning the Galician Law- because this one concerned a case of removal and not a simple reduction of the “summa gravaminis”, and because such removal way analyzed considering the pre- eminent rural ambit of the Galician Civil Law.

However, it would be convenient to establish in the Account of Motives of the Draft –such as it is done otherwise, in the Justificative Report-the reasons that make specifically necessary this measure considering the specialties of the Catalan Civil Law.

EIGHTH .- The section second of the article 111.2 of the Law 29/02, dated December 30th , also know as the First Law of the Civil Code of Catalonia, not amended by the present Code or other Laws, can be invoked for the purpose of appeal. Because of the contents of the substantive autonomic regulation, it is readily concluded that the innovation introduced by the Draft adapts itself to a singularity proper of Catalan Civil Law. Thus, no objection has

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to be placed against the possibility that, with the support of what is established in the section 2 of the article 4 of the Draft, the appeal can be grounded in the infringement of the legal doctrine in force, of the High Court of Appeal of Catalonia.

NINTH .- The regulation of the appealing interest collected in the section second of the article 4 mainly means, the normative establishment of the legal doctrine established by the High Court of Justice of Catalonia about this matter. That contributes to strengthening the legal security and gives more possibilities of admission of the autonomic appeal, since the writing that the Draft proposes, according to what is established by the aforementioned Aragon Law, clarifies certain aspects regulated in the LEC in order to fix, that way, a normative regime that favours a better access to the appeals of the proper entities of the Catalan Civil Law.

TENTH .- The provision of the paragraph second of the article 477.3 of the LEC configures an additional subject, susceptible to ground an appealing interest with autonomy in front of the paragraph one of the mentioned number and article. Because of this, the mere absence of legal doctrine of the High Court of Justice, will always justify the existence of appealing interest, independently of the periods in force of the special regulation of the self governing Community that is applicable. This circumstance gives way to that the mention established in the article 4.2 of the Draft, relative to that the appealing interest will not be subjected to the period of the regulation being in force, does not introduce any novelty in respect to what is established by the LEC. Considering this argument, it is recommended to remove the last paragraph of the section second of the article 4.

ELEVENTH .- The dispositions of the LEC, because they are regulations of State character, are operative without any need that the autonomic

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procedural law ratifies its application to the case, specially considering that what is foreseen in the number three of the article 4 of the Draft, does not arise from the need to clarify or make intelligible the text of the precept. This thought plays in favour of the removal of the mentioned number, that only deals with the application of what is established in the LEC, concerning to allegation and verification of the appealing interest.

TWELFTH .- By including this precept, the pre-lawmaker, implicitly assimilates, the regulation of an adjective character contained in the Catalan Civil Legislation with other ones that equally included in this law, participate of a substantive nature in the strict sense. From this standpoint, the article 5 of the Draft articulate a formula that is able to give, in a division of appeal, an effective protection to the procedural specialties connected with the Catalan substantive law, that is basically equivalent to the one offered for the singularities of material law. This protection of the procedural infringements in a division of appeal is not alien to the own LEC (article 468) although it had to introduce in a disposition final sixteenth a temporary regime in matters of extraordinary appeals because of legislative technique. These technical reasons already disappear for Catalonia, because the article 130 of the Statute of Autonomy in force- with rank of Organic Law- already foresees that the Catalan legislation can dictate the specifical procedural regulations that come from the particularities of the substantive law of Catalonia, and in consequence, to attribute to the High Court of Justice of Catalonia its competence in matters of appeal for procedural infringement, in the line of the mentioned article 468 of the LEC.

However, the writing given to the precept is ambiguous and undefined, since the article 5 of the Draft limits itself to ordering the judge that adopts the necessary measures for application of the procedural regulations, what, further

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to its being obvious, lacks of the unavoidable precision and exactness concerning the type of concrete measures that should be taken for the case referred to by the precept. For that reason, writing is suggested that establishes with more clarity the type of remedies that will have to be agreed by the legal Authority, once the infringement of this type of regulations is stated.

THIRTEENTH .- Concerning the final Dispositions, it is only suggested to change the term “resolutions” by the one “sentences”.

That is all what the General Council of Judiciary has to report.

And so that it is recorded and made effective, I issue and sign the present in Madrid, on the twenty-first June of the year two thousand and ten.