In addition to orders made in the first instance on issues of particular relevance (such as those that decide on interim relief or that terminate the application), a judgment in the first instance is appealable whether the proceedings were by way of ordinary declarative or special procedure; the appeal will be brought by the party adversely affected by it, whether for procedural reasons, on substantive grounds, or for both. Appeal against judgment opens up a second instance, requiring the higher court (the Provincial Court) to look again at the decisions taken – and sometimes to make new ones – as well as to issue a judgment either confirming or modifying the previous decision. Traditionally, Spanish civil procedure has in general always provided for a second hearing, whereby whatever court ruling could be challenged on appeal; however, since 2011 judgments given in oral proceedings for amounts that do not exceed € 3,000 cannot be appealed.
The appeal procedure begins by filing an application for leave to appeal, within twenty days from the notification of the decision; this must contain a written affidavit demonstrating the applicants’ reasons and legal grounds for challenging the decision. The appeal may be based on procedural or substantive issues. To avail of the first ground, an appellant is required to have raised an objection to the impugned defect at the first opportunity in the Court of First Instance. In the application for leave to appeal, evidence may be adjuced, but only on the following specific grounds: a) if it refers to evidence that was adjuced in the first instance but that was improperly ruled to be inadmissible; b) it refers to evidence that was admitted but could not be evaluated by the court for reasons outside the control of the applicant; c) it refers to new evidence and d) if requested by the defendant who has failed to enter an appearance, and adjuced into the proceedings outside the time for admitting evidence in the first instance.
The appeal is filed before the same court that issued the decision that is being appealed (the so called tribunal a quo); this court will decide on whether or not to admit the appeal; if this is rejected, the appellant can proceed by way of a complaint appeal to a higher court. Once admitted, the statement seeking leave to appeal is served on the other parties allowing ten days for them to oppose the appeal, i.e. to answer the allegations; or to challenge the decision appealed, i.e. to seek to overturn the prejudical terms to which they had so far consented, not having appealed against the judgment. Therefore, the challenge on appeal amounts to a second opportunity to appeal the decision, granted to the party who has partially benefited under it and who had decided not to appeal.
Once the above procedure is complied with, the appeal will be submitted to the superior court who will hear the appeal (the tribunal ad quem), i.e., the Provincial Court; it may decide to hold a hearing, where the evidence can be heard if this is deemed necessary.
The appeal will be upheld or rejected as the case may be. If the appeal is upheld, the decision will have a different content, depending on the grounds that were raised. Thus, if there was procedural error in the first instance that rendered the decision void, the procedural steps will be reversed to a point prior to when the error arose; except where the defect can be remedied on appeal, in which case the appellate court will remedy the underlying issue. If the procedural defect arose in the judgment of the first instance, the Provincial Court will quash and resolve the issue under contention; likewise when the challenge is on a substantive matter. The appeal decision must in all cases strictly address the questions raised on appeal – also by way of challenge – though it may not extend to other issues that are not under appeal (tantum devolutum quantum apellatum the appeal can only deal with the matter appealed); neither can the appeal decision worsen the position of the appellant.