I. How does a lawsuit proceed in Spain?
In the Spanish Code of Civil Procedure, the so-called Ley Enjuiciamiento Civil 1/2000 of January 7, 2000 (hereinafter: LEC), a fundamental distinction is made between ordinary proceedings and oral proceedings, cf. Art. 248 (1) LEC. The ordinary procedure is similar to the German lawsuit procedure before the civil courts. It is a written procedure in which both parties first send written pleadings to the court. These pleadings contain both the facts on which the respective party bases its legal assessment and the lawsuit, as well as the legal assessment of these facts. In particular, the amount in dispute, i.e. the amount of the claim asserted, must be stated, see Art. 253 LEC. Since this is usually only the only pleading submitted by the lawyers, it is correspondingly extensive.
As a rule, this is followed by a so-called conciliation hearing. This meeting is attended exclusively by the lawyers without the clients. This meeting serves to clarify open procedural questions, such as the statute of limitations, and is intended to avoid the taking of evidence, cf. Art. 414 (1) LEC. However, if no agreement is reached, the court shall schedule an oral hearing following the conciliation hearing. At this hearing, the evidence is regularly taken in accordance with Art. 431 LEC. Admissible means of evidence are the hearing of both parties, public documents, private documents, expert opinions, court inspection and the hearing of witnesses, Art. 299 LEC. The hearing ends with the parties' final oral presentation, which includes a summary of the facts and evidence and a proposed solution, Art. 432 LEC. Finally, the court then decides on the merits of the case by way of a judgment.
The course of the oral proceedings is significantly shorter. This procedure serves to accelerate the process and is intended to avoid multiple hearing dates in court. Accordingly, only one party, the plaintiff side, submits a pleading with the asserted claim to the court, whereupon the court sets a hearing date as soon as possible without waiting for the response of the opposing side. The defendant side then presents its view of the matter orally at this hearing. Here, too, the court decides by means of a judgment.
II. When do I have to conduct ordinary proceedings and when do I have to conduct oral proceedings?
Which procedure is to be conducted depends first of all on the so-called subject matter of the dispute, which is composed of the facts of the case and the asserted claim. There are special issues that are only ever dealt with in one of the two proceedings. For example, Article 249(1) of the LEC provides that the ordinary procedure shall always be used to hear claims related to the right of personal honor, challenges to corporate resolutions or claims related to unfair competition, regardless of the value of the claim filed. The oral procedure, on the other hand, is relevant, according to Art. 250, para. 1 of the LEC, for example, for claims for unpaid rent, for cases in which either the acquisition of full possession over real property or the defense of property is sought, or it is a matter of maintenance payments.
Pursuant to Articles 248(2)(1), 249(2) of the LEC, in all other proceedings involving other matters in dispute, the ordinary procedure, and not the oral procedure, is applicable if the amount in dispute exceeds EUR 6,000. Conversely, oral proceedings shall be conducted if the amount in dispute is less than EUR 6,000.00. The determination of the amount in dispute is determined by Art. 251 LEC. According to this provision, the value of the claim or the value of the disputed object is decisive for determining the amount in dispute. If the subject matter of the dispute is, for example, real estate with a value of EUR 500,000.00, the ordinary proceedings must be conducted because the limit of EUR 6,000.00 has been exceeded.
III. Where to file the lawsuit in Spain?
Pursuant to Art. 399 LEC, proceedings before the court with local jurisdiction are initiated by filing a lawsuit. Local jurisdiction is determined in accordance with Art. 50 et seq. LEC. Accordingly, in principle, the court in whose district the defendant or respondent resides has jurisdiction, cf. Art. 50(1) LEC. However, there are also special jurisdictions, which are regulated in Art. 52 LEC. According to this, for example, in the case of real estate, the court in whose district the disputed object, i.e. the real estate, is located always has local jurisdiction, cf. Art. 52 (2) LEC.
IV. What must the complaint and the statement of defense contain?
From a formal point of view, the statement of claim must contain the data of both parties, their addresses for service, as well as the concrete facts and the legal grounds, numbered and separated. All statements of fact on the part of the plaintiffs must already be made in the statement of claim. It shall end with the corresponding statement of claim. When filing the lawsuit, the special feature of the Spanish Code of Civil Procedure, namely the figure of the so-called procurador, must be observed. The filing of the lawsuit may not be filed by lawyers who have been visited and authorized by the client, but must be filed by the procurador, cf. Art. 399 LEC. The procuradors are lawyers authorized by the Court, whose role is limited to the management of the process, as stated in article 3 of Royal Decree 1281/2002, of December 5, approving the General Statute of Spanish Court Attorneys. The selected lawyers, on the other hand, are exclusively responsible for advising, drafting the statement of claim and delivering the plea.
Upon filing the lawsuit, the defendant may file a statement of defense, also known as an objection, which must be received by the competent court within a period of 20 working days from the date of service of the statement of claim, Art. 404(1), 405 LEC. Art. 217 LEC regulates which party bears the burden of proof for which facts presented.
V. What happens if a party does not appear in court?
If none of the parties appears at the hearing, the court shall issue an order discontinuing the proceedings, Art. 414(3) LEC. Such an order shall be issued even if only the plaintiff's counsel is in default, unless the defendant(s) claim(s) that there is a legitimate interest in continuing the proceedings so that a decision can be reached on the merits, Art. 414(4) LEC. If only one of the parties appears, the proceedings shall be conducted with that party and the court shall decide by judgment.
VI. When will I receive the judgment?
The judgment shall be pronounced within a period of 20 days, Art. 436 (1) LEC. The judgment of the first instance is provisionally enforceable without the provision of security, unless an exception applies under Art. 525 LEC, which is only relevant in exceptional cases. The judgment can therefore be enforced without any further intermediate steps, and in the case of real estate also its compulsory sale.
VII. How can I take action against the judgment?
Pursuant to Art. 455 (1) LEC, the judgment of the first instance may be appealed, unless it is a judgment rendered in oral proceedings. Only an appeal is possible against judgments rendered in oral proceedings, which may be based on procedural errors, cf. Art. 468 et seq. LEC. The appeal must be filed and substantiated within a period of 20 days after service of the judgment, Art. 458 (1) LEC.
VIII. What are the costs?
Various cost items are incurred in the course of the legal proceedings. Pursuant to Art. 241 of the LEC, the costs of litigation consist in particular of the fees of the legal representatives (lawyers and procurador), experts, compensation for witnesses and court fees. The main difference between the fees of the attorneys and the procurador is that the attorneys are free to agree on the fees with their clients, based on the so-called Criterios Orientativos Baleares, while the procurador's fees are based on a uniform scale of fees. It must also be taken into account that the fees are incurred for each party.
IX. Who bears these costs?
Art. 394 to 398 LEC regulate which party must bear the costs of the proceedings. In principle, the unsuccessful party whose applications have been rejected in their entirety shall bear the costs of the proceedings, unless the case raises serious doubts of fact or law which require clarification, Art. 394 (1) LEC. The parties shall each bear half of their own costs and half of the joint costs if the applications are only partially granted or partially rejected, Art. 394 para. 2 LEC.
X. How much are the legal fees?
In principle, the legal fees can be agreed upon individually. However, many lawyers base their fees on the so-called Criterios Orentativos Baleares. According to these standards, the amount of the costs is based on the amount in dispute and a percentage value to be determined from this, which is taken from the Criterios Orientativos Baleares in the individual case. For example, with a fictitious amount in dispute of 500,000 EUR, the value of a property, the lawyer's fees amount to 37,800.00 EUR.
XI. What are the fees of the procurador?
From an amount in dispute of 2,000.00 EUR, in addition to the lawyer, the procurador (see above), must be paid. The fees of the procurador are regulated in Royal Decree 1373/2003 of November 7, approving the schedule of fees for court attorneys. With a notional amount in dispute of 500,000.00 EUR, they therefore amount to 1,428.00 EUR, see Sección 1, Artículo 1 of Decree 1373/2003 of November 7, 2003.
XII. How much are the procedural costs of the execution?
In addition to the costs incurred within the court proceedings, further costs are incurred for the foreclosure proceedings. The amount of the attorney's fees depends on whether or not the opposing party files an objection to the lawsuit. Should the opposing party concede the claim without dispute, the attorney's fees will amount to 50% of the costs according to the Criterios Orientativos of the Balearic Bar Association (cf. I. A. 8), in total therefore 18.900,00 EUR at a value in dispute of 500.000,00 EUR. If, however, an objection / a statement of defense by the opposing party is to be expected, the fees amount to 80 % of the costs, starting with 450.00 EUR. These then amount to a total of, for example, 30,240.00 EUR. The procurador must also be paid again in the foreclosure proceedings. His costs amount to 1,428.00 EUR for a value in dispute of 500,000.00 EUR. Both the attorney's fees and the costs of the procurador must be paid twice each due to the division of the proceedings into the judicial part and the foreclosure.
XIII Court costs
Unlike under German law, court costs are not payable. According to Art. 119 of the Spanish Constitution, according to which "jurisdiction shall be free of charge when the law so provides and, in principle, in the case of persons who prove their lack of means to litigate" and the judgment No. 140/2016 of the Constitutional Court, only legal persons shall bear the court fees. Accordingly, natural persons do not have to pay them.
XIV. Approximately how long does such a procedure take?
The duration of proceedings cannot be determined with any binding force. However, it can be assumed that proceedings before the civil court of first instance will last at least one year, but usually far 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
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