Enforcement of judgments in Spain: overview

A Q&A guide to enforcement of judgments law in Spain.

The Q&A gives a structured overview of key practical issues concerning enforcement of judgments in this jurisdiction, including definitions and preliminary proceedings; applicable regulations/conventions; pending appeals; enforceable judgments; conditions for recognition and enforcement; proper service; public policy; provisional remedies; interest; actual enforcement; enforcing foreign judgments; enforcement proceedings; formalities; and any reform proposals.

For more information on enforcement of arbitral awards in Spain, visit Enforcement of arbitral awards in Spain.

This Q&A is part of the Enforcement of Judgments and Arbitral Awards in Commercial Matters Global Guide.

Mercedes Duch, San Simón & Duch
Contents

Enforcement of judgments: domestic and foreign

Definitions and preliminary proceedings

1. What is the definition of judgment in your jurisdiction for the purpose of enforcement proceedings?

Domestic

Under Article 517 of the Spanish Civil Procedural Act (LEC 2000), the following are "enforceable instruments" and can be subject to enforcement proceedings:

  • Judgments and arbitration decisions (laudos).

  • Court decisions validating court settlements and agreements reached during the procedure.

  • Authenticated public documents.

  • Other court decisions and documents which, by virtue of this or another law, are enforceable. These include decrees, interim measures and orders.

Enforcement is part of the constitutional mandate laid down in the law which entrusts judges with the task of judging and enforcing judgments (Articles 117 and 118, Spanish Constitution). Therefore the parties to proceedings are under an obligation to comply with judgments and other judicial decisions and to comply as required in the enforcement of what has been decided.

International

Article 523 of LEC 2000 contains the general rule for recognition and enforcement of foreign judgments and arbitral awards in Spain:

  • For final judgments and other enforceable titles that can be enforced in Spain, the international conventions and legal provisions on international judicial co-operation will apply.

  • The enforcement of foreign judgments and enforceable titles must be carried out in Spain in accordance with the provisions of Article 523, unless otherwise provided for in the international conventions in force in Spain.

Therefore, the Spanish legal system contains a renvoi to international law since in order to recognise or enforce foreign decisions awards, international conventions and European legislation must be applied.

Under Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), "judgment" means any judgment given by a court or tribunal of a member state, whatever the judgment might be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.

In addition, and for the purposes of Chapter III of the Recast Brussels Regulation, "judgment" includes provisional, including protective, measures ordered by a court or tribunal which, by virtue of this Regulation, has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement.

 
2. Is it required that a judgment is final and has conclusive effect, or are decisions in preliminary/provisional/interim proceedings recognised and enforceable?

Domestic judgments

Judgments and judicial decisions are immediately enforceable, regardless of whether they have been appealed. Provisional enforcement of Spanish decisions is ruled by Article 524 of the Spanish Civil Procedural Act (LEC 2000).

However, under Article 525 of LEC 2000, the following judgments will not be provisionally enforceable ("in no case"):

  • Judgments issued in proceedings concerning paternity, maternity, kinship, annulment of matrimony, separation and divorce, capacity and civil status and honorary rights.

  • Judgments which condemn a party to issue a declaration of will.

  • Judgments which declare the nullity or expiry of industrial property rights.

Foreign judgments

In accordance with Article 525.2 of LEC 2000, the provisional enforcement of foreign judicial decisions must be ruled by the particular international treaties in force.

Enforcement of judgments rendered within the EU must be governed by Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation). Article 39 allows the enforcement of any judgment rendered in another EU country without any declaration of enforceability being required.

In case of judgments rendered outside the EU, international treaties must be taken into consideration.

Applicable regulations/conventions

3. What conventions and regulations is your jurisdiction a contracting party to?

Spanish courts will apply multilateral and bilateral recognition and enforcement conventions signed with non-EU countries and EU regulations.

Spain is signatory to 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 Lugano Convention of September 16 1968.  

However, these treaties have been superseded by the Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), when they relate to the member states. In addition to multilateral treaties, Spain is signatory to bilateral treaties for the enforcement of foreign judgments. For example, it has bilateral treaties with, among others:

  • Italy.

  • France.

  • Switzerland.

  • Germany.

  • Colombia.

  • Uruguay.

  • Israel.

  • Brazil.

  • Mexico.

  • China.

  • Bulgaria.

  • Morocco.

  • Romania.

  • Thailand.

  • El Salvador.

  • Tunisia.

  • Russia.

Therefore, if the Recast Brussels Regulation is not applicable and there is a bilateral treaty between Spain and the country that rendered the foreign judgment, that treaty will apply concerning the enforcement of that judgment.

Spain supports legal EU instruments whose objective is the removal of all measures which impede the effectiveness of an intra-European judicial area, and which support the "principle of mutual recognition of judgments in civil and commercial matters".

 
4. Will enforcement be automatically refused if service of the proceedings did not conform to any applicable requirements of international treaties/regulations?

Article 954 of the Old Spanish Civil Procedural Code (LEC 1881) establishes the specific legal requirements for recognition of judgments. One of the requirements is that the defendant must have been summoned properly before the court at the trial.

In addition, Article 45 of the Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) declares that the recognition of a judgment will be refused where the judgment was given in default of appearance, or if the defendant was not served with the document which instituted the proceedings (or with an equivalent document) in sufficient time and in such a way as to enable him to arrange for his defence. However, this will not apply if the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.

Pending appeals

5. What is the effect of pending appeal proceedings where the decision is granted?

Domestic judgments

Spanish judgments and decisions are provisionally enforceable while an appeal is pending except in those cases listed in Article 525 of the Spanish Civil Procedural Act (LEC 2000) (see Question 2).

Provisional enforcement can be sought at any time from the date notice is served of the decision in which the appeal is deemed to have been lodged or, as appropriate, from the moment the appellee's statement of adherence to the appeal is transferred to the appellant, provided it is before a ruling is issued on the appeal. A remedy of appeal can be lodged against the court order rejecting the provisional execution and must be resolved as a matter of priority. No appeal of any nature can be lodged against the court order for the dispatch of the provisional execution, irrespective of the objection that can be lodged by the enforcement debtor on the grounds contained in Article 528 of LEC 2000.

Foreign judgments

For pending appeals against foreign judgments, their enforceability would be ruled by the laws of the country in which the original judgment was made.

Enforceable judgments

6. What types of judgments in commercial matters are enforceable?

Domestic judgments

Domestic judgments in commercial matters are in principle enforceable with the only limiting factors being public policy and the general principle that the defendant must have been summoned properly before the court at the trial enabling him to submit available defences.

For judgments rendered in default, their enforcement would mainly depend on the correct service of proceedings giving the defendant enough time to submit the available defences.

Pre-judgment attachment will be appropriate if it proves to be the most suitable measure and cannot be replaced by another measure that is equally or more efficient and less damaging for the defendant.

Unless expressly decided otherwise, the applicant for an injunction must post security sufficient to compensate, in a speedy and effective manner, the damages that the adoption of the injunction will cause to the defendant. Under Article 733 of the Spanish Civil Procedural Act (LEC 2000) and as a general rule, the court must resolve the petition for the injunction after hearing the defendant. However, if the applicant requests, the court (in urgent situations) can order the injunction without the defendant being heard.

Foreign judgments

As far as foreign judgments are concerned, international treaties must be taken into account but as a general principle the following decisions are enforceable:

  • Money judgments.

  • Injunctions.

  • Foreign decisions granting provisional measures.

Enforcement of default judgment and judgments made without notice (ex parte) would depend on the way that service of the writs instituting proceedings, and service of the judgment/order, were effected upon the defendant. There must be evidence that the enforced party had proper knowledge of the proceedings and had the possibility to lodge all available defences before the competent courts.

Money judgments/awards. These are enforceable (see above, Foreign judgments).

Judgments ordering or prohibiting the doing of acts/injunctions. These are enforceable.

Declaratory judgments. These are not enforceable.

Default judgments. Their enforceability depends on how services were effected (see above, Foreign judgments).

Judgments made without notice (ex parte)/awards. Their enforceability depends on how services were effected (see above, Foreign judgments).

Foreign decisions granting provisional measures. These are enforceable.

Foreign enforcement orders/(pre-judgment) attachment orders/awards. These are enforceable.

Other judgments. No other judgments are included.

 
7. Are any class of judgments excluded from recognition and enforcement?

Spanish courts can only examine the substance of the foreign judgment to ascertain whether or not it can be enforced in accordance with Spanish law. Article 954 of the Old Spanish Civil Procedural Code (LEC 1881) establishes the specific legal requirements for recognition:

  • The execution has been issued in pursuit of a personal action (acción personal). The judgment must not affect the ownership of real property located in Spanish territory.

  • The defendant must have been summoned properly before the court at the trial

  • Enforcement of the judgment must not be contrary to public policy.

For judgments rendered within the EU, Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) does not cover revenue, customs or administrative matters and state liability for actions or omissions in the exercise of state authority (acta iure imperii). Neither does it apply to:

  • The status or legal capacity of natural persons, matrimonial matters, wills and succession.

  • Bankruptcy.

  • Social security.

  • Arbitration.

If recognising and declaring enforceable a foreign decision, Spanish courts require that:

  • The foreign country does not oppose the enforcement of Spanish judgments.

  • There is no material contradiction or incompatibility with a judgment rendered, or judicial proceedings outstanding, in Spain.

  • The judgment has been issued as a consequence of a personal action.

  • The judgment has not been issued in default of appearance, unless the defendant was given due notice.

  • The obligation enforced is not unlawful under Spanish law.

  • Spanish courts had no exclusive jurisdiction over the dispute and there is no contradiction with Spanish public policy.

  • The judgment meets the requirements to be considered enforceable in the country of issuance.

Conditions for recognition and enforcement

8. What are the conditions to enforce and recognise a judgment?

Domestic judgments

The conditions to enforce domestic judgments are in Article 517 of the Spanish Civil Procedural Act (LEC 2000) (see Question 6).

Foreign judgments

Conditions to enforce and recognise foreign judgments depend on the origin of the judgment, whether it was from a state within the European Union or from another foreign court.

New provisions of Chapter III of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), "recognition and enforcement", will continue to apply to resolutions issued by the courts of a member state and falling within its material scope.

Article 36 of the Recast Brussels Regulation reflects the well-known formula of automatic recognition. However, according to Article 36.2, any interested party can request a resolution stating that no grounds for refusal (meaning those provided for in Article 45) are present in the instant case. Besides, if the outcome of proceedings in a court of a member state depends on the determination of an incidental question of refusal of recognition, that court will have jurisdiction over that question (Article 36.3, Recast Brussels Regulation).

Court/arbitral court had jurisdiction. Yes, this is a condition for enforcing and recognising a judgment.

Defendant had proper notice of the proceedings. Yes, this is a condition for enforcing and recognising a judgment.

No incompatibility with public policy. Yes, this is a condition for enforcing and recognising a judgment.

Reciprocity. This is only a condition for enforcing and recognising a judgment with regard to decisions rendered outside the EU.

No conflicting domestic or foreign judgment exists. Yes, this is a condition for enforcing and recognising a judgment.

Judgment/award is final as to its effects. Yes, this is a condition for enforcing and recognising a judgment.

Limitation period. Article 518 of the Spanish Civil Procedural Act (LEC 2000) states that the limitation period of an enforcement action of a court judgment, arbitration award or mediation agreement will expire if the relevant enforcement claim is not lodged within a time limit of five years once the judgment or decision becomes final.

Other conditions. There are no other conditions.

 
9. What are the grounds for refusing recognition and enforcement?

Domestic judgments

Under domestic procedural rules, an appeal is not possible against specific measures laid down in the decision granting enforcement, but a debtor/ defendant in an enforcement procedure can oppose specific procedural issues.

Foreign judgments

Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) will introduce a simplified mechanism for the recognition and enforcement of member state judgments' in other member states, eliminating the need for a declaration of enforceability in the courts of the member state in which enforcement is sought. Instead, a judgment creditor will simply have to present a copy of the judgment and a standard form certificate and can then begin the enforcement process. Further, the Recast Brussels Regulation provides that if the judgment being enforced contains measures which are not known in the member state of enforcement, the enforcing court can adapt them to a measure known to that member state (Article 54, Recast Brussels Regulation).

The grounds for refusing recognition and enforcement remain largely unchanged, however (including the public policy provision). The court of the EU member state handling the enforcement can refuse it in specific cases provided for in the Recast Brussels Regulation, that is, when the decision to be enforced was given in default of appearance, or if the defendant was not served with the document instituting the proceedings or with an equivalent.

Recognition can be refused at the request of any interested party for the same grounds already provided for under Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation). These grounds are now embedded in Article 45 of the Recast Brussels Regulation with the following slight differences:

  • Jurisdictional breaches in individual employment contracts have been included as an obstacle to recognition.

  • Breaches to sections 3, 4 or 5 of Chapter II only count as an obstacle to recognition if the policyholder, the insured, the beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant.

For foreign judgments rendered in countries outside the EU, the applicant must submit a written request for recognition or exequatur before the courts in Spain. The exequatur process consists of a review by a court to determine if the request for recognition meets the requirements established by Spanish law.

However, the judge can only examine the substance of the foreign judgment to ascertain whether or not it can be enforced in accordance with Spanish law. Article 954 of the Old Spanish Civil Procedural Code (LEC 1881) establishes the specific legal requirements for recognition (see Question 7).

Proper service

10. Does the enforcing court review service of the proceedings? Are there any conditions regarding service of the proceedings that must have been satisfied/complied with?

The Spanish Civil Procedural Act (LEC 2000) contains an exhaustive regulation as to how services of judicial communications, decisions and orders must be effected. Under Article 166 (under the title "nullity and rectification of notices"), it states that notices and services which are not made in accordance with the provisions of the LEC 2000 and which can lead to a lack of proper defences, will be null and void. However, when the person notified, summoned or ordered to attend is aware of the case and fails to report the nullity of the notice procedure at his first appearance before the court, from that time, the notice will take full effect, as if it had been served in keeping with the law.

Service of judicial documents must be effected:

  • Through the court representative.

  • By sending the notice by post, telegram or any other technical means that would allow irrefutable proof of reception, the date and the contents of notice to appear on the records.

  • Through delivery to the addressee of a copy of the decision to be notified, or of the injunction sent by the court or the Court Clerk.

However, where the addressee of the notice is found to be at the address and refuses to receive the copy of the decision or summons or to sign the certificate of service, the court representative in charge of serving the notice must inform him that a copy of the ruling or summons remains at his disposal at the Court Office. The court representative must also inform the addressee that the effects of having been served notice will have come about, and that this will be stated in the certificate of service.

The enforcing court will review the service of proceedings. If the defendant in a civil action brought before the Spanish courts is not domiciled in Spain the Spanish court will serve the claim abroad, by following the procedure set out in:

  • Regulation (EC) 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (Service of Documents Regulation), when the claim is to be served in an EU member state.

  • HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention), if the claim is to be served outside the European Union.

Public policy

11. Does public policy include matters of substantive law?

The general concept of public policy relates mainly to procedural questions and does not include matters of substantive law. However, "procedural questions" must be considered within a wide definition since, for example, principles of law as res iudicata or non bis in idem are considered by the Spanish Supreme Court (in a judgment dated 20th April 2010) as questions of public order.

 
12. Can the application of a law that is different to that applicable under the choice of law rules of the enforcing court be attacked on the basis of public policy?

Local courts respect the choice of jurisdiction and law in a contract, except when the legal action relates to matters subject to the exclusive jurisdiction of the Spanish courts, for example:  

  • Rights in rem in immovable property or tenancies of immovable property located in Spain.

  • The validity of the constitution, nullity or dissolution of companies or other legal persons or associations or natural or legal persons domiciled in Spain, or of the validity of their decisions.

  • The validity of contents in Spanish public registers.

  • The registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered in Spain.

  • The enforcement of judgments in Spain.

In addition, some limitations apply in relation to insurance, consumers and labour contracts.

 
13. In what circumstances and against which judgments has the principle of public policy generally been applied?

The principle of public policy is always applied to consider the effects of a foreign judgment or decision in Spain. The prosecutor is the authority who must review whether Spanish principles of public policy are respected when granting the exequatur of a foreign decision.

Provisional remedies

14. Is it possible to apply for provisional measures from the enforcing court pending the enforcement proceedings?

In order to secure the effectiveness of enforcement, the Spanish Civil Procedural Act (LEC 2000) provides for certain measures depending on the type of asset:

  • For immovable property or other assets that can be entered in a register, the court can, at the request of the party applying for enforcement, order a preventative annotation of seizure in the corresponding public register (usually the property register, which is the one for immovable property).

  • In other cases, the following measures can be granted:

    • money: confiscation;

    • current accounts: order to the bank to block the accounts;

    • salaries: order to the payer to withhold part of the payment;

    • interest, proceeds and revenue: withholding by the payer, receivership and judicial confiscation;

    • securities and financial instruments: withholding of interest at source, notification to the stock market or secondary market regulator (if the securities are listed on an official market) and notification of the company;

    • other movable property: confiscation.

By virtue of the Secretariat of the Administration of Justice Circular 2/2011, it is currently possible to obtain an automatic freezing order in Spain of bank accounts in the course of the enforcement of a judgment. This new rule has significantly simplified this process and it has made it much more effective. The new system, called telematic freezing of assets (embargo telemático), allows an automatic freeze on the debtor's accounts to the extent of the outstanding amounts by the banks which have subscribed the agreement (which is the vast majority of banks in Spain).

It is also notable that as a result of the differences between the laws of the EU member states on the means for enforcement, a new Article 54 of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) has been adopted. Article 54 states that if a judgment contains a measure or an order which is not known in the law of the member state addressed, that measure or order must, to the extent possible, be adapted to a measure or an order known in the law of that member state which has equivalent effects attached to it and which pursues similar aims and interests.

Interest

15. Is the judgment creditor entitled to interest? If so, on what basis is it calculated?

The successful party can collect interest accruing both before and after the judgment is entered as long as the obligation in question consists of paying an amount of money. However, different interest rates apply to both periods.

Actual enforcement

16. What is the enforcement procedure when a declaration of enforceability is granted?

Spanish judgments are to be enforced following the procedure set out in Articles 538 et seq of the Spanish Civil Procedural Act (LEC 2000). This procedure is also applicable to the enforcement of foreign judgments once the designated competent Spanish court approves the foreign judgment.

According to Article 545 of LEC 2000, the same court that recognises the foreign judgment is responsible for its enforcement. In the case of judicial monetary claims the Spanish court will grant a period of 10 days to allow the defendant to oppose the enforcement of the judgment on the grounds established in Articles 556 and 559 of LEC 2000.

Within the EU, Article 39 of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) abolished the exequatur. Judgments of a member state which are enforceable in that member state also enjoy enforceability in the other member states without a declaration being required. According to Article 40 an enforceable judgment carries with it by operation of law the power to proceed to any protective measures which exist under the law of the requested member state. In addition, Article 41 contains a general rule that the requested member state carrying out the enforcement procedure of the judgments given in another state, must execute the enforcement procedure under the same conditions as a purely domestic decision.

To facilitate the enforcement of foreign resolutions within the EU, the Recast Brussels Regulation provides for a standard form in Annex I. The applicant must submit the form to the competent authority of the member state where enforcement is to take place, together with a copy of the judgment which satisfies the requirements for it to be considered authentic.

 
17. Can defendants oppose the enforcement procedure, and if so, on what grounds/defences?

Under domestic procedural rules, an appeal is not possible against specific measures laid down in the decision granting enforcement, but a debtor/ defendant in an enforcement procedure can oppose specific procedural issues.

The debtor/ defendant can oppose the enforcement for the following procedural reasons:

  • The debtor/ defendant does not have the capacity or representation required.

  • Lack of capacity or representation on the part of the plaintiff or his inability to prove the capacity or representation required.

  • Invalidity of the enforcement granted because:

    • it does not contain the judgment or arbitration decision finding against the defendant,

    • the document produced does not comply with legal requirements for enforceability; or

    • of a violation, when the enforcement was granted, of the rules governing the proceedings to be followed before granting an enforcement measure.

  • If the enforcement instrument was an arbitration decision that was not placed on record by a notary, the lack of authenticity of this decision.

In addition to the above grounds, the debtor/ defendant can, within ten days of receiving the notification of enforcement, oppose this in writing on one of the following grounds (material grounds):

  • Comply with what is ordered in the judgment.

  • Lapsing 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.

Regarding the enforcement of EU judgments, Article 46 of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) contains the same grounds for refusal as those in Article 45 for non-recognition (see Question 9).

The application for refusal of enforcement must be submitted to the court which the member state concerned has told the Commission (under point (a) of Article 75 of the Recast Brussels Regulation) is the court to which the application is to be submitted. The procedure for refusal of enforcement must, in so far as it is not covered by the Recast Brussels Regulation, be governed by the law of the member state addressed.

Upon an application for refusal of enforcement, and at the request of the applicant, the competent court can decide 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.

The competent authority in the member state addressed must, on the application of the person against whom enforcement is sought, suspend the enforcement proceedings where the enforceability of the judgment is suspended in the member state of origin.

According to Articles 49 and 50 of the Recast Brussels Regulation, the decision on the application for refusal of enforcement can be appealed against by either party. The court which hears an appeal lodged under Article 49 or Article 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.

 

Enforcing foreign judgments

Jurisdiction

18. Is the enforcing court entitled to consider the grounds on which the foreign court assumed jurisdiction (and if so, on what jurisdictional grounds can enforcement be refused)?

Under Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), in order to enhance the effectiveness of exclusive choice-of-court agreements, and to avoid abusive litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to deal satisfactorily with a particular situation in which concurrent proceedings can arise. This is where a court not designated in an exclusive choice-of-court agreement has been seised of proceedings and the designated court is subsequently seised of proceedings involving the same cause of action and between the same parties. In such a case, the court first seised will be required to stay its proceedings as soon as the designated court has been seised and until such time as the latter court declares that it has no jurisdiction under the exclusive choice-of-court agreement. This is to ensure that, in such a situation, the designated court has priority to decide on the validity of the agreement and on the extent to which the agreement applies to the dispute pending before it. The designated court will be able to proceed irrespective of whether the non-designated court has already decided on the stay of proceedings.

 
19. If the foreign court assumed jurisdiction on the basis of an exorbitant ground of jurisdiction, can the enforcing court review the judgment on that ground?

Exorbitant ground of jurisdiction

If the foreign court assumed jurisdiction on the basis of an exorbitant ground of jurisdiction (for example, the jurisdiction was based on the place of domicile of the plaintiff or if jurisdiction was assumed in conflict with a valid jurisdiction agreement/arbitration agreement), the enforcing court can review the judgment on that ground.

Voluntary acknowledgement

If the defendant voluntarily appeared in the proceedings, then under Spanish law the court will automatically have jurisdiction to hear the case on its merits.

Enforcement proceedings

20. Is the enforcement of a foreign judgment, arbitral award or deed subject to formal proceedings or simplified procedures?

The type of enforcement proceeding will depend on the country where the judgment to be enforced was issued.

Judgments and judicial orders rendered within EU territory will follow the procedure set out in Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), not being now necessary to pass the judgment through the exequatur proceedings (see Question 16).

However, if the Recast Brussels Regulation does not apply or there is no bilateral treaty, the Old Spanish Civil Procedural Code (LEC 1881) partially still in force will apply, that is, Articles 951 to 958 rules the recognition and enforcement of foreign judgments. LEC 1881 has two main principles applied to the exequatur, which are reciprocity and supplemental procedure. The principle of reciprocity states that a foreign judgment in Spain will have the same force that a Spanish judgment would have in said country. If the foreign country does not recognise Spanish judgments, then that judgment is not enforceable in Spain. Then, formal procedure for recognition must be followed.

 
21. Are applicants required to institute a new action on the judgment in the form of main proceedings instead of making an application for enforcement based on the judgment?

Under Spanish Law, there is no need to institute a new action but to instigate either the procedure already mentioned set out in Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), or an exequatur and enforcement proceedings of a foreign judgment as set out in the Old Spanish Civil Procedural Code (LEC 1881) and the Spanish Civil Procedural Act (LEC 2000) (see Question 16).

 
22. What is the general outline of enforcement proceedings?

Appointing counsel

The Spanish legal system requires the applicant to grant a power of attorney in favour of local procurators who will file the application for the recognition and enforcement of the judgment. 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.

Security for costs

No security for costs is needed when instigating enforcement proceedings.

Jurisdiction and venue

Under Article 545 of the Spanish Civil Procedural Act (LEC 2000), if the enforcement title consists of court rulings, decisions issued by Court Clerks considered enforcement titles, or settlements and agreements sanctioned or approved by the courts, the competent court to issue the court order for enforcement and its dispatch will be the court that heard the matter in the first instance, or sanctioned or approved the settlement or agreement.

In any case, Article 546 of LEC 2000 imposes an ex officio obligation to the court as to its territorial jurisdiction before dispatching the enforcement order.

Adversarial or without notice (ex parte)

Enforcement proceedings start with the application (ex parte) filed with the court, which will decide on the enforcement without hearing opponents. Once the enforcement has been granted, the opponents will then be served with the court's order. The court order authorising and dispatching the enforcement, as well as the order issued by the Clerk Court, must be notified to the debtor.

Timing

There must be no more than ten days between the date of filing the application and the date that the court grants a declaration of enforceability.

Fees

Court fees will depend on the amount involved in the enforcement proceedings.

Appeals

An appeal is not possible against specific measures laid down in the decision granting enforcement, but the debtor can oppose the adoption of specific measures. In this case, the debtor can initiate appeal proceedings against the court's dismissal within a period of five days. An initiation of appeal proceedings does not suspend enforcement of the measures granted.

 
23. Can the enforcing court review the foreign judgment as to its substance if all formalities were complied with and if the judgment meets all requirements?

No, if the judgment meets all the formal requirements, there are no circumstances in which a judgment given in another state can be reviewed as to its substance and merits.

Formalities

 
24. What are the documentary requirements for enforcement?

A power of attorney granted by a notary public in favour of local procurators and lawyers is always needed to act before any Spanish Courts. Other documentary requirements would depend on the country in which the judgment was rendered.

For judgments issued within the EU, Article 42 of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) provides that the applicant must provide the competent enforcement authority with:

  • A copy of the judgment which satisfies the conditions necessary to establish its authenticity.

  • The certificate issued according to Article 53 of the Recast Brussels Regulation, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest.

In the case of enforcement in a member state of a judgment given in another member state ordering a provisional, including a protective, measure, the applicant must provide the competent enforcement authority with:

  • A copy of the judgment which satisfies the conditions necessary to establish its authenticity.

  • The certificate issued according to Article 53 of the Recast Brussels Regulation, containing a description of the measure and certifying that:

    • the court has jurisdiction as to the substance of the matter;

    • the judgment is enforceable in the member state of origin; and

    • when the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.

In the case of enforcement of non-EU judgments, original or authenticated copies of the decision to be enforced must be submitted before the court, together with its translation and evidence that either the writ of summons or the writ instigating proceedings, as well as the judgment, were properly served to the enforced party.

 
25. Is it required to translate the judgments into the language of the State where enforcement is requested?

Under Article 144 of the Spanish Civil Procedural Act (LEC 2000), any document worded in a language other than Spanish or, as appropriate, the official language of the regional authority in question must have a translation of the document attached to it.

Article 57 of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) states that translations or transliterations of judgments and orders are required.

 
26. What is the format of the application for a declaration of enforceability?

The application for a declaration of enforceability of Spanish judgments must be done through an enforcement claim (demanda ejecutiva).

The application for a declaration of enforceability of foreign judgments is contained in a petition for exequatur.

 
27. What information must be included in the application regarding the judgment, the claim as awarded in the judgment, the facts and legal grounds of the case, and that the judgment is no longer appealable?

Judgment

The application must contain a description of the background of the case. The merits should be given to the court for ease of reference. The legal grounds to be discussed must be those on which petition for exequatur are based. In addition, reference to the particular way in which services were effected should be included in the application. A reference to eventual appeals or enforceability of the judgment must be contained in the application.

 
28. Is it required to convert the value of the judgment into the local currency?

The application for the enforcement of a foreign judgment must always include the equivalence of the value of the judgment into Euros, since courts always issue its orders of enforcement in Euros.

 

Proposals for reform

29. Are any changes to the law currently under consideration or being proposed?

There are currently no proposals for reform.

 

Contributor profiles

Mercedes Duch, Partner

San Simón & Duch

T + 34 91 357 92 98
F + 34 91 357 50 37
E sansimonduch@lsansimon.com
W www.lsansimon.com

Professional qualifications. Spain, 1992

Areas of practice. Shipping/ maritime law; arbitration, international trade law; insurance law.

Non-professional qualifications. LLB, Universidad de San Pablo CEU, Spain

Languages. Spanish, English

Professional associations/memberships.

  • Member of Bar Association of Madrid.
  • Member of Board of Directors of the Spanish Association of Maritime Law.
  • Founding member of Women's International Shipping & Trading Association (WISTA).
  • Member of the IBA.

Publications.

  • Spanish Association of Maritime Law.
  • The International Comparative Legal Guide and the Shipping Law Review.

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