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published on 4 May 2021 | reading time approx. 6 minutes
In order to assert claims in court, it must first be clarified which court has jurisdiction.
In the case of disputes with a foreign connection to other member states of the EU, the question of international and local jurisdiction in the event of a court dispute is initially governed by Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia Regulation or EuGVVO). This has been in force since 10 January 2015 and replaces Regulation (EC) No. 44/2001 (Brussels I Regulation or EuGVVO).
The Brussels Ia Regulation (EU Regulation No. 1215/2012; Spanish “Reglamento Bruselas I-bis”) contains extensive provisions on the international jurisdiction of the courts of the Member States within its scope of application. In the absence of a jurisdiction agreement in the contract, the courts of the defendant's state of domicile have international jurisdiction according to Article 2 Brussels I Regulation or Article 4 Brussels Ia Regulation, respectively. For legal entities such as a limited liability company (GmbH), for example, jurisdiction is based (in the absence of domicile) on the registered office, the head office or the principal place of business.
To the extent that EU regulations are not applicable, the international question of jurisdiction under Spanish law is governed by the applicable bilateral or multilateral international agreements and, subsidiarily, by Spanish autonomous international procedural law (art. 22 et seq. LOPJ - Spanish Judicial Code.
The foundations for the structure as well as for the court system in Spain are laid down by the Spanish Judicial System Act (Ley Orgánica del Poder Judicial) and the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil).
The Spanish civil court system is structured in a simplified way as follows:
The courts are organised as either single-member (“juzgado”) or collegiate (“audiencia or tribunal”).
The subject-matter jurisdiction of civil and commercial courts is governed by the Courts Constitution Act and the Civil Procedure Act. The central court is the Court of First Instance, which has general jurisdiction in civil and commercial matters, regardless of the amount in dispute, unless other courts have special jurisdiction; since 2003, special insolvency courts (“Juzgado de lo Mercantil”) have been established at some courts of first instance. In addition, the courts of first instance have special jurisdiction in proceedings for the recognition and enforcement of foreign judgments.
The Commercial Courts in Alicante also have jurisdiction in connection with the European provisions on the Community Trademark (see Regulation (EC) No. 40/94, superseded by Regulation (EC) No. 207/2009) and on the Community Design (see Regulation (EC) No. 6/200) and are then called Community Trademark Courts (“Juzgados de Marca Comunitaria”).
According to Art. 241 LEC, litigation costs include all direct and indirect expenses related to the proceedings. These include, in particular, the fees of the legal representatives (lawyer/abogado and litigation agent/procurador), experts, compensation for witnesses and court fees.
Litigation representation in court is formally handled by the litigation agent admitted to the local court, who submits the lawyers' pleadings to the court, checks deadlines and forwards court orders and decisions to the lawyer. The fees of the litigation agent are based on a uniform fee schedule, whereas the attorneys' fees can be freely agreed. The formerly applicable “fee guidelines” of the local bar associations are still used in practice as a guideline for mandates. Since 2008, contingency fees have been permitted in some cases, provided they consist of a guaranteed minimum fee and a success rate.
Court fees are incurred in Spain for most types of proceedings and procedural steps. The fee itself consists of a fixed and a variable part. The fixed amount (“cuota fija”) depends on the jurisdiction in which the case is brought and the type of proceedings. The variable amount (“cuota variable”) is based on the amount in dispute, between 0.25 per cent and 0.5 per cent.
Who has to bear the costs of proceedings in Spanish courts is regulated by the Spanish Civil Procedure Act in en Art. 394 to 398 (“Ley de Enjuiciamiento Civil”).
In discovery proceedings, the party whose claims have been rejected in their entirety shall bear the costs of the first instance, unless the case raises serious factual or legal doubts that require clarification.
If the motions have been granted in part or the motions have been denied in part, each party shall bear its own costs as well as the joint costs in equal shares, unless there is sufficient circumstantial evidence to impose the costs on only one of the parties due to frivolous conduct of the case.
If the costs of the proceedings are awarded to the unsuccessful party, that party shall pay, from the part due to the lawyers and other experts who are not subject to a scale of fees, an amount not exceeding one third of the costs of the proceedings, this applying to each party to the proceedings to whose detriment the decision on costs is made.
There is no generally binding answer to the question of how much time a court case takes. Statistics on the average duration of court proceedings in Spain are published regularly by the Consejo General del Poder Judicial (CGPJ) in Spanish and English (www.poderjudicial.es).
For a better understanding of the abstract time periods, the average duration of proceedings is presented concretely using the example of civil court proceedings (statistics from 2017).
The average duration of civil proceedings in the individual courts of first instance was 6.4 months and varied between 3.2 and 52.1 months. The average duration of proceedings in the commercial courts was 17.1 months and varied between 2.4 and 49.0 months.
In the second instance, the average duration of proceedings in the provincial courts was 6.6 months and varied between 1.0 and 9.6 months. In the higher courts of the Autonomous Communities, the average duration of proceedings was 4.9 months and varied between 0.9 and 9.2 months.
The average duration of proceedings in the possible 3rd instance (appeal) was 16.3 months and varied between 3.0 and 27.7 months.
The Spanish Civil Procedure Act (“Ley de Enjuiciamiento Civil”) provides for several possibilities to have the legal position temporarily secured upon request already before or at the beginning of the proceedings (Article 721 et seq. Spanish Civil Procedure Act).
Thus, Article 727 of the Civil Procedure Law lists ten different possibilities in this regard. In addition, the court may issue other appropriate measures. The ten measures of provisional legal protection (“medidades cautelares”) include, in particular, the arrest in rem (embargo preventivo de bienes) of certain property in order to secure subsequent execution. But also the deposit (“depósito”) of certain objects or of money can be ordered. In addition, the court may issue temporary injunctions or orders to perform certain acts.
For a Spanish court to impose these measures on the defendant on an interim basis, three conditions must be met:
The court's jurisdiction to issue interim measures depends on its jurisdiction in the main proceedings. The court with jurisdiction is therefore the court before which the claim is already being asserted or should be asserted.
In principle, an oral hearing is held before interim measures are issued. An appeal may be lodged against the court order granting the provisional measures, although this does not have a suspensive effect. Execution from the order is carried out ex officio. If the court refuses to issue interim measures, an appeal is also admissible.
Upon application, the court may dispense with an oral hearing before issuing the provisional measures. For this purpose, the applicant must prove that the matter is particularly urgent or that a prior oral hearing would jeopardize the issuance of provisional measures. The defendant may lodge an appeal against an order granting interim measures without prior oral proceedings in accordance with Articles 739 et seq. of the Civil Procedure Act. Civil Procedure Code.
The person against whom provisional measures have been imposed may apply to the court to provide substitute security (caución sustitutoria) in lieu of enforcement of the provisional measures.
Proceedings which have been or will be commenced, formally established or registered or approved or concluded on or after 10 January 2015 shall be governed by the provisions of the Brussels I Regulation as amended by the Brussels Ia Regulation to the extent that they fall within the scope of that Regulation.
Under this Regulation, judgments given in one Member State are recognised in the other Member States without any special procedure being required. There is no review of the substance of the decision in the requested member state. The Brussels Ia Regulation abolished the recognition procedure (“exequatur”).
Enforcement measures are generally aimed at the collection of sums of money, but may also have as their object the fulfillment of some other obligation (“obligation to act or to cease and desist”).
In cross-border civil matters, a judgment must be enforced in accordance with the domestic rules and procedures of the state where enforcement is sought (usually the state where the debtor and/or his assets are located). In practice, an enforcement order (e.g. a court judgment or settlement) and a certificate pursuant to Art. 53 Brussels Ia Regulation must be presented in order to obtain enforcement.
In Spain, the recognition and declaration of enforceability of a foreign arbitral award is then governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Provided that the foreign arbitral award has been recognised and declared enforceable in Spain, the enforcement proceedings themselves follow Spanish national law.
The provisions on Spanish enforcement of payment orders are found in Book 3 (Art. 517-747) of the Spanish Civil Procedure Act (“Ley 1/2000 de Enjuiciamiento Civil; LEC”). The enforcement of a foreign judgment is carried out in Spain within the framework of a separate enforcement procedure pursuant to Art. 549 (1) of the LEC before the competent enforcement court. The application must be made to the competent Spanish court of first instance (Juzgado de Primera Instancia) (Article 47(1) of the Brussels Regulation). Either party may appeal against the decision on the application to the Spanish provincial courts of appeal (Audiencia provincial) (Article 49 EuGVVO). The decision on the appeal may in turn be appealed before the Spanish Supreme Court (Tribunal Supremo) (Article 50 EuGVVO).
Litigation & Arbitration
Patricia Ayala Jiménez
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