Enforcement of a foreign judgement debt in Spain
Before proceeding with the enforcement of any court decision in Spain, we must first check in which State it has been issued, as depending on this, its recognition and enforcement will be subject to one or another rule.
There are three different possible scenarios:
- If the judgment has been issued by an EU Member State, the applicable law for its recognition and enforcement will be Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction, and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I bis Regulation).
- If the judgment has been issued by a State with which Spain has a Convention, such Convention will be the applicable law. For example, the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, dated 30 October 2017, signed between the EU Member States and Iceland, Norway and Switzerland will be the applicable law to recognize and enforce judgements issued by a Icelandic, Norwegian or Swiss court.
- If the judgment has been issued by a non-EU Member State with which Spain has not signed any convention on the enforcement of foreign judgments, Spanish Law no. 29/2015 of international legal cooperation in civil matters (LCJIC) will be applicable.
1. Recognition and enforcement of a Judgement in Spain issued by a court of an EU-Member State: applicable law
If the Judgement has been issued by an EU-Member State Court, its recognition and enforcement in Spain will be governed by the Brussels I bis Regulation.
Application for recognition and enforcement of a Judgement under the Brussels I bis Regulation
According to the Brussels I bis Regulation, the applicant may jointly request the competent Court the recognition and enforcement of a Judgement in Spain.
Such application must include the following documents:
- A copy of the authentic Judgement.
- The certificate of the Annex no. I of the Brussels I bis Regulation.
- A sworn translation of the above documents into Spanish.
Refusal of recognition and enforcement
The defendant may request the refusal of recognition and enforcement of the Judgement based on the following grounds:
- Recognition of the Judgement is manifestly contrary to public policy under Spanish law.
- The Judgement has been given in default of appearance.
- The Judgment is irreconcilable with a decision given between the same parties in the Member State addressed.
- The Judgement is irreconcilable with any earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties
- In case of conflict of jurisdiction.
Decision of the competent court
If the recognition and enforcement comply with the material and formal legal requirements, the competent Court will issue an Order granting:
- The declaration of the recognition and enforceability of the Judgement in Spain.
- The enforcement against the defendant.
- An order declaring that the defendants’ assets are
- A complete patrimonial investigation of the defendants’ assets and rights, like the existing balances in bank accounts, real estate, movable property, salaries, amongst others.
Opposition to the decision of the competent court on the recognition and enforcement of the Judgement in Spain
Whether the Court grants or rejects the recognition and enforcement of the Judgement in Spain, the disadvantaged may appeal the decision before the competent Provincial Court.
As provided in the LCJIC, the second instance decision may be appealed by means of cassation appeal before the Supreme Court.
2. Recognition and enforcement of a Judgement in Spain issued by an Icelandic, Norwegian or Swiss court: applicable law
As we referred before, if the judgment has been issued by a Icelandic, Norwegian or Swiss court, the law applicable to its recognition and enforcement in Spain will be the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2017 between the EU Member States and Iceland, Norway and Switzerland (“Lugano Convention”).
The provisions of the Lugano Convention are very similar to those of Brussels I Regulation.
3. Recognition and enforcement of a Judgement issued by a Court of a non-EU member: applicable law
If the Judgement has been issued by a non-EU Member State Court, an exequatur proceeding will be necessary.
Need for an exequatur proceeding
According to the LCJIC, before enforcing any foreign judgement or decision, the previous obtention of the exequatur (declaration of enforceability) is required.
Competent court to grant the exequatur
The Spanish competent Court that grants the exequatur is the First Instance Court of the defendants’ residence.
Subsidiarily, the LCJIC provides other applicable jurisdiction forums, such as the Court of the place where the assets owned by the defendant are located.
The exequatur proceeding
The exequatur proceeding should be initiated by means of a lawsuit by the person who proves that they have a legitimate interest in its obtention.
In the application for exequatur, the applicant may request the enforcement of the Judgement and the adoption of enforcement measures against the defendant, but they may not be ordered until the exequatur has been granted.
Formal requirements and necessary documentation
To obtain the exequatur, the applicant must comply with formal requirements and provide the following documents:
- The original Judgement or an authenticated or apostilled copy.
- The document which proves that the Judgement was served to the defendant or that it was given in default of appearance.
- The document which proves that the Judgement is a final decision.
- The translation of all the above documents into Spanish.
Opposition to the application for exequatur
The defendant may oppose the application for the exequatur within thirty days of its notification, based on the following grounds:
- Contradicting the authenticity of the Judgement that is intended to be enforced.
- Requesting the correction of the defendant’s summons.
- Contradicting the firmness and enforceability of the Judgement.
Decision of the competent court on the application for exequatur
Once the defendant has opposed the application for exequatur or the deadline for filing an opposition has elapsed, the competent court will issue its final decision.
Appealability of the exequatur order
The disadvantaged party by the decision on the granting of exequatur may appeal before the Spanish competent Provincial Court.
If the appealed decision has granted the exequatur, the court may require the appellant to provide security to prevent that the appeal be used maliciously with the only purpose to delay the enforcement.
Against the decision issued by the Provincial Court, the disadvantaged party may file a cassation appeal, which will be resolved by the Supreme Court.
Enforcement of the Judgement
Once the decision declaring the enforcement of the Judgement in Spain is final, the applicant may request the competent court to adopt several enforcement measures against the assets of the defendant, such as the preventive seizure of real estate or the retention of the funds it has in their Spanish bank accounts.
Mandatory intervention of the Prosecutor’s Office
The intervention of the Public Prosecutor’s Office in exequatur proceedings governed by the LCJIC is mandatory.
In accordance with the Spanish Constitution, the Prosecutor’s Office will control the legality of the exequatur proceedings and will ensure the protection of the public interest.
4. Other important issues to consider
In addition to the above, it is important to clarify other relevant questions referred to in both the Brussels I bis Regulation, the Lugano Convention and the LCJIC regarding with recognition and enforcement of Judgements:
Prohibition of review on the substance of the matter
The enforced Judgement may not be subject to a review as to the substance by the competent Spanish Court in matters of enforcement.
For example, the competent Spanish court cannot refuse the recognition of a Judgement on the ground that the court of origin has applied a different rule from the one that would have been applicable according to the Spanish Private International Law rules.
Adaptation of the foreign Judgement to the Spanish legal system
The decision to be enforced in Spain must be adapted to the Spanish legal system. If there is no identical order to a Judgement in the Spanish legal system, it must be adapted as far as possible to a similar order that has equivalent effects and pursues a similar purpose and interest.
When it comes to enforce foreign Judgments in Spain, our expert team can assist you in complex enforcement proceedings, ensuring the protection of your claims and focusing on obtaining the recovery of your debt. Contact us to find out more information about our legal services!