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Last update: 06-06-2006
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Enforcement of judgements - Spain

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TABLE OF CONTENTS

1. What does enforcement mean in civil and commercial matters? 1.
2. What are the conditions under which an enforceable title or decision may be issued? 2.
2.1. The procedure 2.1.
2.2. The substantive conditions: what are the criteria used by the court for granting an enforcement measure? 2.2.
3. Object and nature of enforcement measures 3.
3.1. What types of assets can be subject to enforcement? 3.1.
3.2. What are the effects of enforcement measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the decision granting such a measure? 4.

 

Enforcement is part of the response to the constitutional mandate laid down in that supreme rule of law which entrusts judges with the task of judging and of enforcing judgments (Articles 117 and 118 of the Constitution). Therefore the parties to proceedings are under the obligation to comply with judgments and other judicial decisions and to collaborate as required in the enforcement of what has been decided. It is for the judge to ensure that these requirements are met in full.

1. What does enforcement mean in civil and commercial matters?

Enforcing a court decision means complying with and obtaining the full right gained by the party that won the dispute. This may involve a request by a plaintiff for the return of a certain amount of money, the right to ask a defendant to do something or to refrain from doing something, or a request to have a right recognised by registration in public registries.

Enforcement may be definitive or provisional. In the latter case, a judgment is enforced which is not yet final to avoid a situation where the creditor fails to obtain satisfaction because of delays in the proceedings (Articles 524 to 537 of the Code of Civil Procedure).

2. What are the conditions under which an enforceable title or decision may be issued?

In principle, it is necessary to have a final court decision or other instrument that permits enforcement (except in the case of provisional enforcement, which is accepted in some cases for final decisions).

2.1. The procedure
2.1(a) Are both judicial and non-judicial decisions enforceable?

Enforcement must be based on an instrument which is enforceable.

Only the following instruments are enforceable:

  1. A final judgment;
  2. Arbitration decisions (laudos) ;
  3. Court decisions approving or confirming court settlements and agreements reached during the procedure, accompanied, if necessary, by the corresponding depositions in order to provide a record of the actual content;
  4. Authenticated public documents, provided that they are the first copies. If they are second copies, they must be issued subject to a court order mentioning the person who may be injured or the perpetrator of the injury, or they must be issued with the agreement of all the parties;
  5. Commercial contracts signed by the parties and by a broker who is a member of a professional association, who mediated between them, provided that they are accompanied by a certificate in which the said broker certifies that the contract complies with the entries in his register and the dates of these entries;
  6. Lawfully issued bearer securities or registered securities which represent liabilities payable, and the coupons, also payable, of the said securities, provided that the coupons match the securities and that the securities, in all cases, match the receipt books;

A protest of forgery of the security formulated during the matching process will not, if the items match, prevent the enforcement decision from being issued, without prejudice to the subsequent opposition to enforcement that may be made by the defendant, arguing that the security is forged;

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1. Certificates that have not expired, issued by the bodies responsible for the registers, showing securities represented by means of entries in accounts referred to in the Law on the Stock Market, provided that they are accompanied by a copy of the public instrument representing the securities or, where appropriate, the issue, where this is necessary in accordance with the legislation in force.

Once enforcement has been sought and granted, the certificates referred to in the first paragraph do not expire;

1. The writs setting down the maximum amount that can be claimed by way of compensation, drawn up in the event of non-appearance in court of the accused or of an acquittal or dismissal of action in criminal proceedings initiated with respect to events covered by compulsory third party liability motor vehicle insurance;

2. Other court decisions and documents which, by virtue of this or of another law, are enforceable.
2.1(b) Is it necessary to apply for a court order authorising the enforcement?

There are two possibilities, depending on the instrument to be enforced.

The general rule is to involve a judicial authority, although in the case of foreclosure, and provided that this has been expressly agreed, the sale of the mortgaged property may be carried out via a notary.

2.1(c) What is the court competent for ordering enforcement?

The judge in the Court of First Instance who issued the judgment to be enforced. If the enforceable instrument is not a judgment, there are special rules for assigning competence which usually indicate that the judge in the place of residence of the defendant is competent.

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2.1(d) Should the application for enforcement be made through a lawyer or any other legal profession?

Always, except in the enforcement of decisions relating to amounts of less than €900.

2.1(e) Please provide a scale of costs for each type of enforcement measure.

The service provided by the court is usually free except in the case of corporate persons, which have to pay a fee, collected by the Board of Inland Revenue, if their turnover is significant.

The fees of lawyers and solicitors are regulated by their corresponding professional associations. Persons entitled to free legal aid can continue to receive this during the enforcement phase.

There is in principle no limit for these costs, with their level depending on the problems that can arise during enforcement.

2.2. The substantive conditions: what are the criteria used by the court for granting an enforcement measure?

The enforcement application requested by the party must comprise: the instrument on which enforcement is based, the enforcement sought, the assets of the debtor that can be seized, the localisation and research measures necessary to ascertain the debtor’s assets, the person or persons against whom the decision is to be enforced, identifying them and their circumstances and, in cases where the aim is to enforce a court judgment or decision, this must also be identified and enclosed, pursuant to Article 549 of the Code of Civil Procedure.

The documents listed in Article 550 of the Code of Civil Procedure must be attached to the enforcement application. If the enforcement application meets the requirements mentioned above and if the instrument presented is one of the instruments that permit enforcement, this will be granted by the judge to whom the application was made, who will determine the amount to be seized, the persons concerned and the enforcement measures.

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3. Object and nature of enforcement measures

3.1. What types of assets can be subject to enforcement?

All movable and immovable property as well as claims and real property rights. The following assets may not under any circumstances be subject to enforcement:

  1. Assets that have been declared inalienable;
  2. Secondary rights that cannot be alienated separately from the main ones;
  3. Assets that in themselves have no property value;
  4. Assets expressly declared unattachable by a legal provision;
  5. Household items and furniture belonging to the home, as well as the clothes of the debtor and his family, apart from what may be regarded as superfluous. In general, assets such as foodstuffs, fuel and others which, in the view of the court, are essential for the debtor and his dependants to live with decency;
  6. The books and instruments needed by the debtor to exercise his profession, art or business, when their value is not out of proportion to the amount claimed;
  7. Sacred items and those used for the practice of legally registered religions;
  8. Amounts expressly declared to be unattachable by the law;
  9. Assets and amounts expressly declared to be unattachable by treaties ratified by Spain.

The following amounts may not be enforced either:

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  1. The salaries, wages, pensions, remuneration or equivalent payments not exceeding the amount laid down as the minimum intersectoral wage (this is determined each year by the Government) ;
  2. The salaries, wages, remuneration and pensions that are higher than the minimum intersectoral wage may be seized according to this scale:
  • For the first additional amount up to an amount equivalent to double the minimum intersectoral wage, thirty per cent;
  • For the additional amount up to an amount equivalent to three times the minimum intersectoral wage, fifty per cent;
  • For the additional amount up to an amount equivalent to four times the minimum intersectoral wage, sixty per cent;
  • For the additional amount up to an amount equivalent to five times the minimum intersectoral wage, seventy five per cent;
  • For any amount that exceeds the previous amount, ninety per cent.

If the debtor receives more than one salary, all the salaries will be added together and the unattachable part deducted once. Moreover, the salaries, wages, pensions, remuneration and equivalent payments of the spouses will be added together unless their marriage settlement involves a separation of estates and income of all kinds, evidence of which must be provided to the court.

The court may apply a reduction of between 10% and 15% in the percentages laid down in sub-paragraphs 1, 2, 3 and 4 of paragraph 2 of this article to allow the debtor to meet family expenses.

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Should the salaries, wages, pensions and remuneration be encumbered with permanent or transitional deductions of a public nature pursuant to tax or social security legislation, the net amount received by the debtor, once they have been deducted, will be the amount used as the base for determining the amount to be seized.

The above sub-paragraphs of this article also apply to revenue from self-employed professional and business activities.

In any event and without prejudice to the need to take account of the amounts that cannot be attached as mentioned above, the enforcement measures must be in proportion to the amount for which the enforcement was granted, so that if they are excessive a reduction may be necessary, and if they are insufficient, an increase may be needed.

Where the party initiating the enforcement does not know what assets are owned by the debtor, the court may be asked to make enquiries; these are carried out by consulting the data banks of the various official institutions, some of which are directly accessible from the court, with the usual safeguards.

3.2. What are the effects of enforcement measures?

To guarantee the effectiveness of enforcement, the law provides for certain measures depending on the type of asset.

  • In the case of immovable property or other assets that can be entered in a register, the court may, at the request of the party applying for enforcement, order a preventive 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 may 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.

In addition, with a view to guaranteeing enforcement, all persons and public and private entities are required to cooperate with enforcement procedures (on pain of incurring a fine or even of being charged with contempt of court if they fail to respect the requirement). This means that they must provide the information required of them, adopt the guarantee measures in question, handing over to the court any documents and data in their possession, without any limitations other than those arising from the observance of fundamental rights or limits which, in certain cases, are expressly laid down by law.

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3.3. What is the validity of such measures?

The duration of enforcement measures is not pre-determined. They remain in force until enforcement is complete.

4. Is there a possibility of appeal against the decision granting such a measure?

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

In addition to the above, the debtor may oppose the enforcement that is going ahead against him either on the basis of procedural shortcomings or for reasons relating to the legal relationship in question.

Procedural reasons (applicable to all enforcement instruments) :

  • The debtor 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;
  • Absolute invalidity of the enforcement granted because it does not contain the judgment or arbitration decision finding against the defendant, because the document produced does not comply with legal requirements for enforceability, or because 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.

However, in addition to the above grounds, the debtor may invoke grounds of opposition to the enforcement arising from the underlying legal relationship (material grounds). Since, in the case of judgments, there has been a previous process during which there were extensive opportunities for debate, there are fewer possibilities of opposition if the enforcement instrument is a judgment.

Thus if the enforcement instrument is a court decision or judgment or an arbitration decision against the defendant, or if it approves a settlement or agreement reached during the process, the debtor may, within ten days following the notification of the act in which enforcement is granted, oppose this in writing on one of the following grounds:

  • Payment or compliance with what is ordered in the judgment, which will have to be established by documents;
  • Lapsing of the enforcement action;
  • The agreements and settlements that were reached to avoid enforcement, provided that these agreements and settlements are recorded in a public document.

In these cases, opposition does not suspend enforcement.

But when the enforcement instrument is different from those mentioned above, there are more grounds for opposition, including the following:

  • Payment, documentary evidence of which may be provided;
  • Offsetting of a payable claim based on a document that is enforceable;
  • Plus petitio or excess in the evaluation of debts in cash;
  • Limitation and lapsing;
  • Acquittal, respite, or an agreement or promise not to sue, recorded in documents.
  • A settlement, provided that it is set down in a public document;

If opposition is formulated in these cases, enforcement is suspended.

« Enforcement of judgements - General information | Spain - General information »

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Last update: 06-06-2006

 
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