Since the amendment of the contentious-administrative cassation appeal regime pursuant to the Third Final Provision of Organic Law 7/2015 of 21 July many questions have arisen in relation to the regime, questions to which answers have been found over time as the Supreme Court and the various high courts have provided answers to each question put to them.

One of the many uncertainties has been that surrounding the regional cassation appeal. Art. 86.3 of the Contentious Administrative Business Law (LJCA) draws a distinction between two types of cassation appeal: that based on a breach of rules of state or European law (the TS) and that based on a breach of rules “that have their origins in the autonomous regions”.

However, the reform pays little attention to the latter form of cassation: after noting its existence, the LJCA merely specifies the composition of the section responsible for learning more about it. This paucity of information has resulted in considerable insecurity, prompting judicial bodies themselves to request a reform to the new system and the recovery of the cassation appeal to consolidate doctrine in a regional context. In view of gaps in its regulations, some have even denied its effective existence.

In view of this situation, Decision 1/2017 of the Supreme Court of Madrid attempts to fill some of these gaps in the legislation. For this reason, despite no such requirement in the case before the courts, the Supreme Court opts to have its decision adopted in the form of an order, in view of the fact that its aim is to help “clear up any doubts created by the insufficient legal regulation of the regional cassation appeal”. For the most part, it can do this through statutory analogy (analogia legis).

It starts with an analysis of the issues relating to the very existence of the appeal, the existence of which, as we have said, has been denied by some due to the insufficient regulation of the same and the absence of legal provisions in this respect in Art. 72 of the Organic Law on the Judiciary (LOPJ).

However, the Supreme Court of Madrid understands that the regulation of this appeal can be reconciled with constitutional requirements and the principle of competition between rules, even though it is regulated only in the LJCA, with Art. 72 LOPJ remaining unchanged.

This is due to the fact that the reservation submitted in favour of the LOPJ in relation to the “constitution… of the courts and tribunals” comprises the institution of the various jurisdictional orders and the generic definition of its area of litigious expertise, which includes the abstract creation of the judicial bodies called upon to exercise the jurisprudential role” but without this meaning that all competition regulation should be regulated by the LOPJ: it is understood that as long as stipulations of the organic legislator are adhered to, the ordinary legislator will be able to “define the issues the object of knowledge of such orders”. Thus, a system for collaboration between organic law and ordinary law would be configured, similar to that already in place in relation to the constitution of special sections in contentious-administrative chambers, or in conjunction with the allocation of powers not provided for in the LOPJ to these chambers.

However, it does not resolve, for example, the practical problems raised by the configuration of the section intended to resolve them in those supreme courts that have few permanent magistrates, or the possible participation of magistrates that comprise it in an instance prior to the case and the mechanisms to arbitrate on in these cases.

It also rules out the notion that the absence of specific regulations on the requirements, purpose and procedure applicable to this appeal would result in it effectively ceasing to exist. It does this because the regulation of the “state” cassation appeal provides sufficient elements to fill any gaps, to continue with the analogy used here.

On the other hand, causational interest does not pose problems other than those that arise in the scope of the state cassation appeal.

Of greater interest is the issue raised by decisions vulnerable to appeal: it is on this point where the asymmetry between the cassation appeal before the Supreme Court and the high courts can pose greater problems when it comes to applying the analogy, not when appealing decisions handed down by the courts but in respect of those handed down by the contentious-administrative chambers of the supreme courts due to its non-devolutive nature in these cases. However, the Supreme Court of Madrid understands that this cannot represent an obstacle to considering the configuration of this appeal valid: supreme courts are responsible for putting in place jurisprudence relating to regional law, with this function to take precedence over any other consideration, in view of the purpose of the cassation appeal in its new configuration: to put uniform jurisprudential doctrine in place.

In short, the role of the Supreme Court of Madrid is a laudable one. However, the decision does not answer all questions raised by this form of cassation and, in essence, fails to analyse the question of its compatibility with cassation before the High Court. We shall have to wait.

For further information, please contact:

Raquel Enciso Losilla

raquel.enciso@AndersenTaxLegal.es