As a popular vacation and residential destination, Mallorca naturally also harbors the risk of legal disputes. Should a lawsuit become necessary, it is important to understand the differences in procedural law compared to Germany. In this article, we highlight the key aspects of Spanish procedural law and compare them with German law.
1. types of procedure
There are two types of proceedings in Spain: ordinary civil proceedings (juicio ordinario) and oral proceedings, see Art. 248 (1) of the Spanish Code of Civil Procedure (Ley Enjuiciamiento Civil 1/2000 of January 7, 2000 (hereinafter: "LEC"). In the juicio ordinario, actions with an amount in dispute of more than 15,000 euros are heard in addition to special matters, while in the juicio verbal, amounts in dispute of up to 15,000 euros and, among other things, certain actions independent of value in Spain, such as actions for restitution (eviction and rent actions), inheritance matters or interim injunctions for interim legal protection are heard.
2. course of the procedure
The course of the ordinary proceedings essentially corresponds to German civil proceedings. It begins with the filing of the statement of claim with the competent court, which is then served on the defendant. In principle, the court in whose district the defendant is domiciled has jurisdiction, see Art. 50 Para. 1 LEC.
Problems with serving the claim on the defendant can arise in particular if the defendant cannot be reached at their place of residence or lives abroad. In such cases, service may take longer and require additional steps, which can delay the entire process. It is not possible to submit further pleadings - as is the case in written preliminary proceedings in Germany, for example - which means that the statement of claim and statement of defense are often very extensive.
This is usually followed by a so-called conciliation hearing. Only the lawyers take part in this meeting without the client. This hearing serves to clarify open procedural questions, such as the statute of limitations, and is intended to avoid the taking of evidence, cf. section 414 (1) ZPO.
However, if no agreement is reached, the court will schedule an oral hearing following the conciliation hearing. Evidence is usually taken at this hearing in accordance with Art. 431 LEC. The hearing ends with the oral closing statement of the parties, which contains a summary of the facts and evidence and a proposed solution, Art. 432 LEC. Finally, the court decides the case by judgment.
3. authorization
Another important difference is the form and necessity of the power of attorney. In Spain, a notarized power of attorney is required to authorize lawyers. This differs from Germany, where a written power of attorney is usually sufficient. The notarial form is intended to ensure that the client's interests are sufficiently legally protected.
In Spain, it is also necessary to appoint a procurador. The procurador is a legal representative who is responsible for submitting documents and communicating with the court. In Germany, lawyers can take all necessary steps themselves, with the exception of civil law disputes at the BGH.
4. costs
There are significant differences in terms of costs. Unlike under German law, court costs are not borne by the parties. According to Art. 119 of the Spanish Constitution, which states that "the administration of justice shall be free of charge if the law so provides and, in principle, in the case of persons who prove that they do not have the means to conduct the proceedings" and Constitutional Court ruling no. 140/2016, only legal entities shall bear the court costs. Accordingly, natural persons do not have to pay court fees.
In Germany, lawyers' fees are regulated by the Lawyers' Fees Act (RVG) as a rule and the free fee agreement as an exception. In Spain, on the other hand, there are no fixed legal fees. Lawyers' fees can be freely chosen and are generally based on around 10% of the amount in dispute. In addition, the procurador also charges fees that must be paid.
Art. 394 to 398 LEC regulate which party must bear the costs of the proceedings. In principle, the unsuccessful party whose claims have been completely rejected bears the costs of the proceedings, unless the case raises significant factual or legal doubts that require clarification, Art. 394 para. 1 LEC. Each party shall bear its own costs and half of the joint costs if the applications are only partially granted or partially dismissed, Art. 394 para. 2 LEC.
5. duration
It is not possible to give a binding indication of the duration of proceedings. However, it can be assumed that proceedings before a civil court of first instance will take at least one year, but usually significantly longer.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
Do you need the support of a German lawyer in Mallorca?
Porta & Associates is a law firm in Palma de Mallorca. Dr. Dominic Porta advises you as a German lawyer in Mallorca on all matters relating to house purchase, rental and licenses. The modern law firm in Palma also represents its clients in corporate law, inheritance law, contract law and tax law.
More information and contact can be found at www.anwaltmallorca.eu
