Enforcement of international court orders or judgments in Spain
Enforcement court orders Spain: The enforcement of foreign judgments is governed by Act 29/2015 dated 30 July 2015 on international legal co-operation in civil matters (Legal Co-operation Act), which entered into force in Spain on August 2015. Article 2(a) of the Legal Co-operation Act asserts the primacy of EU law and gives preference to the application of EU provisions and to the international treaties and agreements over the domestic law.
Spanish courts apply multilateral and bilateral recognition and enforcement conventions signed with both non-EU countries and EU regulations:
a) Regarding non-EU countries, Spain is a signatory to a large number of bilateral treaties. In addition, there are two multilateral treaties concerning the enforcement of foreign judgments: the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (Brussels Jurisdiction Convention). The EFTA Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 (Lugano Convention).
b) Regarding EU member states, these treaties have been superseded by Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In addition, Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims is applicable in Spain as of 21 January 2005 and Regulation (EU) No 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters is applicable in Spain as of 18 January 2017. Article 39 of the Recast Brussels Regulation has abolished the exequatur process between EU member states.
Enforceable types of foreign judgments
Under Article 50 of the Legal Co-operation Act, a foreign court’s decisions that have executive force in the state of origin are enforceable in Spain. Enforcement proceedings in Spain for foreign resolutions are governed by the provisions of the Civil Procedure Act, Enforceable judgments include, among others:
- Money judgments/awards.
- Judgments ordering or prohibiting the doing of acts/injunctions.
- Default judgments and Judgments made without notice (ex parte) awards, where service was properly effected.
- Foreign decisions granting provisional measures, if Refusal would amount to a breach of effective judicial protection, and they have been adopted with a prior hearing of the other party.
Non-Enforceable types of foreign judgments
Under Article 525 of the Civil Procedure Act, the following judgments are not provisionally enforceable:
- Judgments issued in proceedings concerning paternity, maternity, kinship, annulment of matrimony, separation and divorce, capacity and civil status, and honorary rights.
- The judgments that require a party to issue a declaration of will.
- Judgments that declare the nullity or expiry of industrial property rights.
- Declaratory judgments.
Procedure for enforcement
1. Appointing legal counsel
First, a power of attorney must be granted by a notary public in favour of local procurators and lawyers is compulsory required to act before the Spanish courts. Other documentary requirements depend on the country in which the judgment was rendered. Opposition must be filed within 30 days.
2. Reviewing the paperwork.
An application for recognition/enforcement of foreign judgments must comply with the requirements of Article 399 of the Civil Procedure Act and be accompanied by (Article 54, Legal Co-operation Act):
- The original or certified copy of the foreign judgment, duly legalised or apostilled.
- A document that proves that proper service was made on the defendants if the judgment was rendered in the absence of the defendants.
- Regarding the enforcement of judgments rendered within the EU, Article 39 of the Recast Brussels Regulation, allows the enforcement of any judgment rendered in another EU country without any declaration of enforceability being required.
- Swore translations of these documents, as required.
3. Filing and submitting the application with the paperwork
First, the application must be drafted and signed by a Spanish lawyer who will be representing the party seeking the enforcement of the judgment before the court. An application for recognition of a foreign judgment must include:
- The background and merits of the case.
- Details of how a writ of summons and the judgment was served on the defendants.
- Confirmation that the judgment is final and binding on the parties involved.
Second, the Solicitor will file the enforcement application against the party or parties against which the foreign judicial judgment is to be enforced in compliance with the requirements of Article 399 of the Civil Procedure Act, already indicated before.
Third, once the claim is allocated, the application and related documents produced will be examined by the court clerk, and the public prosecutor, who always takes part in these proceedings, as to ensure Spanish public policy principles are respected.
Fourth, if no opposition is filed, (please read below), there should be no more than ten days between the date of filing the application and the declaration of enforceability. The opponents are served with a court order authorising enforcement, as well as the order issued by the court clerk. Service of judicial documents can be effected in several ways.
4. Challenging the order. Opposition by the defendant
First, a judgment was given in another state (irrespective if the judgement is from and EU member state or a non-EU country) cannot be reviewed as to its merits if it meets all the formal requirements.
Second, the defendant can, within ten days of receiving the notification of enforcement, oppose this in writing on one of the following material grounds:
- Compliance with what is ordered in the judgment.
- Lapse of the enforcement action.
- An excessive evaluation of the debts owed.
- Agreements and settlements have been reached to avoid the enforcement, provided that these agreements and settlements are recorded in a public document.
Third, furthermore, a defendant can oppose enforcement for only specific procedural reasons:
- The lack of capacity or representation of the debtor/defendant.
- Lack of capacity or representation on the part of the claimant or their inability to prove the capacity or representation required.
- The invalidity of the enforcement
Fourth, regarding foreign judgments rendered out of the EU, Article 46 of the Legal Co-operation Act lists the causes for refusal of the recognition. Final foreign judgments are not recognised if:
- They are contrary to public policy.
- The judgment was rendered in manifest breach of the rights to a defence of any of the parties. Where the judgment was rendered in the absence of the defendant, it must be shown that there was a manifest breach of the right to a defence, such as the defendant not having been served a summons or equivalent document in a regular manner and not having been given enough time in advance to be able to defend himself or herself.
- The foreign judgment was rendered on matters for which only the Spanish jurisdictional bodies are competent or the jurisdiction of the judge of origin had no reasonable relation to the litigation. If the foreign court has based its international judicial jurisdiction on similar criteria to those under Spanish law, it is assumed that a reasonable relation existed.
- The judgment is irreconcilable with a judgment rendered in Spain.
- The judgment is irreconcilable with a judgment previously rendered in another state if that resolution complies with the necessary conditions for its recognition in Spain.
- There are already proceedings in Spain between the same parties and with the same object, initiated before the proceedings abroad.
Finally, in the case of opposition to enforcement, the Spanish court can decide whether to:
- Limit the enforcement proceedings to protective measures.
- Subordinate the execution to the constitution of specific guarantees.
- Suspend, in whole or in part, the enforcement procedure.
5. Challenging the order. Appeal
Under Articles 49 and 50 of the Recast Brussels Regulation, the decision on the application for refusal of enforcement can be appealed by either party. The court hearing an appeal lodged under Articles 49 or 50 can stay the proceedings if an ordinary appeal has been lodged against the judgment in the member state of origin, or if the time for such an appeal has not yet expired.
Appeal proceedings do not suspend enforcement of the measures granted.
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Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practising Spanish Solicitor.