The joint lodging of extraordinary appeals for procedural and cassation violations against sentences passed on appeal in matters of bankruptcy incidents raises some questions that we address in this article, which examines the different cases that may arise in order to choose the appropriate legal channel for a correct approach that leads to the admission of the aforementioned appeals.

When it is a matter of jointly filing an Appeal for Procedural Infringement and an Appeal for Judicial Review, two cases must be distinguished, depending on whether the amount of the incident is lower or higher than the legal limit of 600,000 Euros established in Article 477 of the Law on Civil Procedure for access to judicial review.

If the amount of the incident is less than that legal limit, it is clear that, since the filing of an appeal for procedural violation is linked to the admission of the appeal, Paragraph 1 of the Final Provision Sixteen of the Civil Procedure Act, both appeals must be filed in a single document.

In these cases, the admission of the Appeal for Procedural Infringement is indissolubly linked to the admissibility of the Appeal, as it is provided for in Rule 3 of Paragraph 1 of the Sixteenth Final Provision of the Code of Civil Procedure.

Consequently, the concurrence of the interests of the parties must be accredited, since in order to admit the Appeal for Procedural Infringement it is necessary to proceed with the Appeal, the origin of which is to be analysed prior to the admission of the first of the appeals as established in Rule 5 of the aforementioned Final Provision Sixteen, Section 1, of the Civil Procedure Law.

When the amount of the incident exceeds 600,000 euros, the problem arises of deciding whether it is possible to file an appeal for procedural violation autonomously, articulating it in a single document in which an appeal is also filed and, in both cases, determining which of the three channels set forth in Article 477 of the Civil Procedure Law is chosen.

First of all, it must be concluded that it is possible in this case, for an amount greater than 600,000 Euros, to file exclusively an Appeal for Procedural Infringement in an autonomous manner and without the need to file an Appeal in Cassation, as this is permitted by Article 477.2 case 2, to which Rule Two of Section 1 of the Code of Civil Procedure refers.

The problem arises when, in order to avoid delays in time, an Appeal for Procedural Infringement and an Appeal in Cassation are filed jointly in the same document so that the Board can take over the instance as authorized by Rule 7 of Paragraph 1 of the Sixteenth Additional Provision of the Code of Civil Procedure.

The question in these cases focuses on determining the correct channel for the filing of the Appeal for Procedural Infringement and whether it is possible to differentiate it from the channel invoked for the filing of the Appeal for Cassation even though both Appeals must be filed in the same document and processed in a single procedure in accordance with Rules 3 and 5 of Section 1 of the Civil Procedure Act.

This issue is of particular importance since its decision determines the channel to be chosen for the Appeals with an evident risk of being rejected in case of an inadequate choice.

In the jurisprudential research carried out for the drafting of this article, we have not been able to find any judicial resolution that resolves this problem.

There is abundant and uncontroversial case law, emanating from the First Chamber of the Supreme Court, which in all the decisions that decide on the admission of appeals is in agreement in considering that in the case of bankruptcy incidents the appropriate channel for the filing of an appeal is that of number 3 of the second paragraph of article 477 of the Law on Civil Procedure.

In support of this solution, case law indicates that, in the case in question, it is a question of judgments dictated in processes followed by reason of the matter, in such a way that whatever the amount of the procedure, greater or less than 600,000 Euros, the appropriate channel for the Appeal in Cassation is that of number 3 of the second section of article 477 of the Law on Civil Procedure.

We cite for its clarity the Order of the First Chamber of the Supreme Court of November 20, 2019, which reiterates consolidated jurisprudence on the subject, and whose First and Second Foundations of Law establish:

1. FIRST.- Insofar as the sentence that constitutes the object of the present appeal was dictated in a trial processed by the rules of the bankruptcy incident (art. 171 LC), the appropriate channel to access the cassation is that contemplated in ordinal 3 of art. 477.2 de la LEC, accrediting the existence of cassation interest.
2. As for the extraordinary appeal for procedural infraction, as long as the jurisdiction to hear it is not conferred on the Supreme Court, it will proceed with respect to the resolutions that are subject to appeal in accordance with the provisions of artículo 477 LEC, and must be formulated jointly with the appeal, since none of the cases provided for in numbers 1 - civil judicial protection of fundamental rights - and 2 - amounting to more than 600,000 euros - of artículo 477.2 LEC.are involved.
3. Based on these premises, the agreement of this Board on criteria for the admission of appeals and extraordinary appeals for procedural violations dated 27 January 2017 - as it did on 30 December 2011 - considers as a cause of inadmissibility the extraordinary appeal for procedural violation - when formulated together with the appeal - the inadmissibility of the latter, for which reason it is appropriate to analyse and decide firstly on the merits of the appeal, and if it is admitted go on to analyse the grounds of the extraordinary appeal for procedural violation.
4. SECOND.- The appeal is filed under art. 477.2.2º LEC, for an amount exceeding 600,000 euros.
5. The appeal falls under the cause of inadmissibility provided for in Article 483.2.2 LEC of failure to comply with the requirements established for the various cases in the filing document, developed by the agreement of this Board on admission criteria for appeals and extraordinary appeals for procedural violations of January 27, 2017, which essentially maintains the criteria established by the agreement of December 30, 2011, due to an error in the appeal procedure invoked.
6. The appeal cannot be admitted because the appellant has committed an error in the chosen modality, since it is an appeal against a sentence dictated in the second instance in a bankruptcy incident in which the opposition to the qualification of the bankruptcy is resolved (art. 171 de la Ley Concursal), the only possible way to access the cassation would be that of the house interest which is contemplated in the third order of art. 477.2 LEC. This chamber already indicated in the aforementioned agreement dated December 30, 2011, updated by that of January 27, 2017, on criteria for admission of appeals to the courts of cassation and extraordinary appeals for procedural violations, that an appeal on grounds of the interest of the home country is admissible not only when it is lodged against judgments given in cases processed on grounds of quantity - if this does not exceed that set by the LEC or if it is indeterminate or invaluable - but also against decisions given in proceedings followed on grounds of the matter, among which - in addition to those given in the proceedings referred to in artículos 249.1
7. Therefore, when it is intended to file an appeal in cassation against a sentence issued in a bankruptcy incident, the modality that applies will be that provided in number 3 of article 477.2 LEC  regarding the home interest, as it is a sentence issued in a process processed by the rules of the bankruptcy incident by reason of the matter. The procedure of the bankruptcy incident does not attend to the amount, but to the special bankruptcy matter in which it takes place, and this procedure will be followed in any case regardless of the amount of the specific process. The document that lodges the appeal must comply with the requirements imposed by art. 477 LEC and, therefore, in addition to indicating the legal infraction that serves as a motive for the appeal, the appellant must, from that very moment, accredit the presence of the interest in the home expressed in any of the elements that make up this modality and that are contemplated in. art. 477.3 LEC, either by opposition to the jurisprudence of the Supreme Court, by the existence of contradictory jurisprudence of the Provincial Courts or by the application of a rule that is in force for less than five years; this requirement cannot be evaded because the amount of the procedure exceeds 600,000 euros.

However, when the amount of the incident exceeds 600,000 euros, it is worth asking whether, if the two appeals, Infraction of Procedure and Cassation, were filed simultaneously, it would be feasible to invoke different channels to support the merits of the two appeals.

In the opinion of the writer, there is nothing in the Law of Civil Procedure that opposes this possibility, but rather the joint interpretation of the Rules contained in the Sixteenth Additional Provision and Article 477 of the same Law leads to the conclusion that it is inclined to admit the grounds of both Appeals in different channels.

That possibility is also deduced from the case law on the admission of extraordinary appeals emanating from the First Chamber of the Supreme Court, although at first sight it may be concluded that the aforementioned case law is contrary to it.

In the first place, Rule 5 of Section 1 of the Sixteenth Additional Provision must be taken into account, which establishes the transitional regime for both appeals:

8. 1. Until such time as jurisdiction is conferred on the High Courts of Justice to hear an extraordinary appeal on the grounds of a procedural violation, such appeal shall proceed, on the grounds provided for in Article 469, in respect of decisions which are subject to appeal in accordance with Article 477.
9. The following rules shall be followed for the filing and resolution of the extraordinary appeal for procedural violation:
10. 5.ª If the appeal is lodged jointly with an appeal on procedural grounds, the Board shall first examine whether the contested decision is open to appeal and, if not, shall dismiss the appeal as inadmissible on procedural grounds.
11. Where the appeal for a procedural infringement has been lodged solely on the basis of Article 477(2)(3), the Board shall decide whether the appeal is admissible or inadmissible, and if it decides that it is inadmissible, the appeal for a procedural infringement shall be dismissed without further formality. Only if the appeal is admissible shall a decision be taken on the admissibility of the extraordinary appeal on the ground of a breach of procedure.

In accordance with this Rule, the Appeal for Procedural Infringement is appropriate, on the grounds set forth in Article 469 of the LEC, with respect to judgments subject to appeal in accordance with the provisions of Article 477.

When both appeals are filed together, the Board will first examine whether the judgment is subject to appeal. When the two appeals are lodged together, the Board will first examine whether the judgment is subject to appeal. That examination will consist in determining whether the judgment falls, in the abstract, within any of the cases set out in Article 477. If that procedural requirement is not met, a judgment which may fall within one of the cases referred to in Article 477, the appeal will be dismissed on the ground of procedural infringement.

That this is the correct interpretation is clear from the last paragraph of Rule 5, which does refer to the invocation of the appropriate procedural channel.

It is precisely this paragraph which, in my opinion, allows the Appeal for Procedural Infringement to be based on a different channel than the one invoked for the Appeal, since it is clear from the literal wording of the Appeal that it is only in cases where the Appeal for Procedural Infringement has been based EXCLUSIVELY on the channel provided for in number 3 of Article 477, the Board must first decide whether or not to admit the appeal, linking the admissibility of the appeal for procedural infringement, in that case, to the admission of the appeal.

In that case, if the appeal is not admissible, the second appeal will be dismissed outright; if the appeal proceeds, it remains to be decided, in the background or at a later stage, whether or not the appeal is admissible on the ground of procedural infringement.

Based on the separation of the two appeals introduced by the Civil Procedure Law of 2000, explained in its own Statement of Grounds, and in the light of the precepts of the same Law as indicated above, Articles 469, 477 and Rule 5 of Paragraph 1 of the Sixteenth Additional Provision, there is no doubt, in my opinion, that it is possible to bring an action for procedural violation together with the appeal, the former on the basis of the second order of Paragraph 2 of Article 477, for an amount in excess of 600.000, and basing the second on the third order of Article 477(2).

In this case, it is not possible to condition the admission of the Appeal for Procedural Infringement to the admissibility of the Appeal formulated on the basis of the concurrence of objective jurisdictional interest, for the following reasons

1.- There is no doubt that the Appeal for Procedural Infringement can be filed autonomously, without the need to file an Appeal in Cassation at the same time, in the case of number 2 of Section 2 of Article 477 of the Civil Procedure Act, i.e. when the amount of the case exceeds 600,000 Euros.

2.- In my opinion, there is no compelling legal argument that justifies a diversity of treatment when the Action for Infringement of Procedure is brought in a case with a value of more than 600,000 Euros, voluntarily added to an Appeal based on any of the other channels provided for in Article 477(2).

3.- It could be objected that the first paragraph of Rule 5(1) of the 16th Additional Provision specifically states that when an appeal and a procedural infringement are brought together, the Board must examine whether the contested decision is open to appeal and, if not, it will dismiss the appeal on the ground of procedural infringement.

4.- In my opinion, it is not possible to confuse the origin of the Action with the channel chosen for its foundation.

The merits of the action require an examination of two circumstances: first, it must be examined whether the judgment against which the action is brought is open to appeal. Secondly, in the case of extraordinary appeals, the grounds of appeal must be examined as an expression of the legal basis which covers the plea or pleas in law put forward in support of the procedural or substantive infringement complained of in the appeal.

The fact that the first paragraph of Rule 5(1) of the sixteenth final provision requires prior examination of the admissibility of the appeal in cases where the two special appeals are filed together means that the Board of Appeal is only required to examine them, firstly, if the judgment appealed against falls within any of the cases contemplated in number 2 of Article 477 of the Law on Civil Procedure, but not if the channel on which the Appeal for Procedural Infringement is based is or is not contained in that precept. In my opinion, it is not possible to confuse the origin of the Action with the channel chosen for its foundation.

The merits of the action require an examination of two circumstances: first, it must be examined whether the judgment against which the action is brought is open to appeal. Secondly, in the case of extraordinary appeals, the grounds of appeal must be examined as an expression of the legal basis which covers the plea or pleas in law put forward in support of the procedural or substantive infringement complained of in the appeal.

The fact that the first paragraph of Rule 5(1) of the sixteenth final provision requires prior examination of the admissibility of the appeal in cases where the two special appeals are filed together means that the Board of Appeal is only required to examine them, firstly, if the judgment appealed against falls within any of the cases contemplated in number 2 of Article 477 of the Law on Civil Procedure, but not if the channel on which the Appeal for Procedural Infringement is based is or is not contained in that precept.

In that regard, it must be borne in mind that the second paragraph of Rule 5 expressly provides that when it is a question of exclusively basing the merits of the appeal on Article 477(2)(3), the Board must examine whether there is an interest in bringing proceedings, but only in such a case, since the adverb exclusively expresses the possibility of basing the merits of the appeal on any of the other subparagraphs of Article 477(2), regardless of the merits of the appeal.

To do otherwise would be tantamount to introducing a difference in the treatment of an action for a procedural infringement brought together with an appeal in respect of the same action for a procedural infringement when it is brought independently, that is to say when, because it falls within the scope of Article 477(2)(1) and (2), it can be brought independently without being brought at the same time.

This difference in treatment is not legally justified in any way, but rather is rejected by virtue of the differentiation and independence of each of these appeals set out in the Explanatory Memorandum to the Code of Civil Procedure.

5.- The first thing that the Board must undoubtedly examine is the merits of the appeal for procedural infringement, i.e. to check that the judgment falls within one of the three cases referred to in Article 477(2).

If the judgment appealed against is in one of these cases, the Appeal for Procedural Infringement will proceed.

The second question to be examined by the Board is whether the Appeal for Infringement of Procedure is covered by any of the channels set out in Article 469 of the Ley de Enjuiciamiento Civil. (Infringement of procedural rules on jurisdiction or objective or functional competence; infringement of rules regulating the sentence; infringement of rules regulating the acts and guarantees of the process if it is decisive for nullity or defenceless; or infringement of fundamental rights established in Article 24 of the Constitution).

This second question has nothing to do with the existence of an interest in a case, since this only constitutes a procedural channel for the filing of an appeal, as established in Article 477 of the Civil Procedure Law, or an appeal for procedural violation when it is based exclusively on the assumption of paragraph 3 of number 2 of that article.

From what has been said so far, in my opinion, the examination of the concurrence of the interests of the parties to the case should not be a requirement for the admissibility of an Appeal for Infringement of Procedure against a judgment handed down on appeal in bankruptcy proceedings for an amount exceeding 600,000 Euros, even when it is filed jointly with an Appeal for Appeal whose channel is number 3 of paragraph 2 of Article 477 of the Ley de Enjuiciamiento Civil.

This is because the concurrence of jurisdictional interest in this case is a prerequisite for the channel chosen to file the appeal, but not with respect to the appeal for procedural violation, simply because the channels for filing the two appeals are different: for the appeal in cassation, those listed in Article 477(2), and for the appeal for procedural violation, those listed in Article 469 of the Act.

The only exception to the above, as indicated above, is the case of the filing of the Appeal for Procedural Infringement based exclusively on the assumption of Article 477(2)(3), provided that it is alleged to be based exclusively on the Appeal.

However, given the complexity of the matter and the doubts that it may raise, which are but a consequence of the attempt to link one and the other Extraordinary Appeal in the transitional regime established in the Final Provision Sixteen of the Law of Civil Procedure, forgetting the intention of the legislator to separate the two Appeals set out in the Explanation of Reasons of the Law of Civil Procedure of 2000, it would be appropriate for the Bill to reform the Extraordinary Appeals to regulate this matter more clearly.

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