Interim and precautionary measures - Spain
In some cases, delays in the proceedings may make the judicial protection claimed ineffective. Therefore, a series of measures is laid down in the legal system to ensure the effectiveness of the right for which judicial protection is sought.
Spanish legislation does not provide an exhaustive list of the precautionary measures that may be adopted. The Code of Civil Procedure states that people can apply to the courts to have precautionary measures adopted that are deemed necessary to ensure the effectiveness of the judicial protection that may be granted in the judgment (for the applicant) to be given subsequently. This implies that even when a series of specific measures is initially listed, this is in any case not comprehensive. Therefore, even though a standard procedural regulation is used for the adoption of all the measures, the grant of measures to protect a right may vary, the sole requirement being the consideration that they are appropriate to obtain the effective protection sought from the court.
TABLE OF CONTENTS
What are the different types of measures?
How are precautionary measures granted?
What are the criteria used by the court for granting an injunction?
Purpose and nature of the precautionary measures
What types of assets can be subject to such measures?
What are the effects of such measures?
What is the validity of such measures?
Is there a possibility of appeal against the measure?
1. What are the different types of measures?
Legislation on civil proceedings (essentially the Code of Civil Procedure) is the main source for precautionary measures, but some measures are laid down in special substantive laws.
The measures laid down in the Code of Civil Procedure (Article 727) include the following:
- Attachment of assets to ensure the enforcement of judgments involving an order to hand over amounts of money or fruits, revenue and fungible objects that can be estimated in terms of cash by applying certain prices;
- Judicial administration or receivership of capital goods when it is hoped to obtain a judgment ordering that they be surrendered in terms of ownership, usufruct or any other capacity involving a legitimate interest in maintaining or improving productivity, or when the guarantee of productivity is of vital interest for the effectiveness of the judgment that may be handed down;
- The impounding of movable property when the application is aimed at obtaining an order to have property in the possession of the defendant handed over;
- The drawing up of inventories of assets under the conditions laid down by the court;
- Provisional filing of claims when they refer to assets or rights likely to be entered in public registers;
- Other entries in registers in cases in which publication in a register is useful for successful enforcement;
- Court orders to halt an activity provisionally or to refrain temporarily from engaging in a particular type of behaviour, or a temporary prohibition on interrupting or halting the provision of a service that is being performed;
- Seizure and confiscation of revenue obtained from an activity regarded as illegal, the banning or cessation of which is demanded in the application, with the consigning or confiscation of the amounts being demanded by way of remuneration of intellectual property;
- Temporary confiscation of copies of works or objects which are deemed to have been produced in breach of intellectual and industrial property rules, plus confiscation of the equipment used to produce them;
- Suspension of corporate decisions that have been challenged, when the plaintiff or plaintiffs account for at least 1% or 5% of the company capital, depending on whether the defendant company has or has not issued securities which, at the time of the challenge, were listed on a regulated secondary market.
In addition to these measures, the last paragraph of Article 727 of the Code of Civil Procedure allows courts to grant other measures not included among those mentioned above. The list is therefore not exhaustive;
- Other measures which, for the protection of certain rights, are expressly provided for by law or are regarded as necessary to ensure the effectiveness of the judicial protection that may be granted in the judgment (for the applicant) to be handed down in the main proceedings.
In addition to this general system, there are other legal provisions relating to precautionary measures, including the following:
- Proceedings concerning the capacity of persons. Article 726 of the Code of Civil Procedure allows the courts to adopt of their own motion any measures they consider necessary for adequate protection of the person alleged to be incapable or of his property;
- Proceedings concerning filiation, paternity and maternity. Article 768 of the Code of Civil Procedure contains measures for protecting the person and assets of someone subjected to the authority of the person appearing as the parent, and the granting of provisional maintenance to the plaintiff, even without a preliminary hearing in an urgent case;
- Protection of the assets of the deceased. Securing of the assets in the succession and of the documents of the deceased can be granted, as can administration of the deceased’s estate and verification of his relatives, among other measures (Articles 790 to 796 of the Code of Civil Procedure) ;
- The Final Provisions of the Code of Civil Procedure contain measures applicable to specific cases regulated by special laws such as seizure of equipment, devices and materials in proceedings relating to intellectual property (Second Final Provision) and patents (Fifth Final Provision).
2. How are precautionary measures granted?
The measures are granted by whichever judge is competent given the subject matter and territory, who will be the one hearing the case or, if the proceedings have not yet been initiated, the one competent to do so.
Precautionary measures may be requested before submitting an application provided that it is not impossible to grant them because of their nature (for instance in the case of provisional filing of a claim) , or provided that the law does not require that they be requested together with the application (as in the cessation of prohibited activities or the suspension of collective decisions in cases involving disputes over property in a condominium). Because of their exceptional nature (since the normal thing is to include measures in the application itself) , the simultaneous concurrence of urgency and necessity is required. Precautionary measures may be adopted without hearing the person who will be the other party in the subsequent proceedings (without prejudice to the right to object to these measures once they are granted) , although they do not take effect if, within twenty days after being granted, the corresponding application is not submitted.
But, as already mentioned, such measures are frequently requested at the same time as an application is submitted, in which case the judge or court orders the establishment of separate proceedings which are processed simultaneously with the main case and during which evidence may be put forward and heard to prove the concurrence of the requirements needed to obtain the precautionary measure. The general rule is that, before precautionary measures are adopted, the parties are convened to a hearing before the court during which the arguments are put forward and the evidence is heard which is regarded as relevant to the decision on whether or not to adopt a precautionary measure, regardless of the measure in question, or, where appropriate, the decision to require a guarantee from the party requesting the precautionary measure in the event that the application is subsequently dismissed. Notwithstanding this, the party requesting the measure may ask that it be adopted without hearing the other party when this is justified on grounds of urgency or if a hearing could compromise the purpose of the measure (if, for instance, there is a risk of concealment or of dissipation of the debtor’s assets). In this case, once the measure is adopted, the injured party may contest it.
Measures may also be requested subsequent to the application or during the appeal phase, although this petition must be based on facts and circumstances that justify submitting it at this time.
A lawyer and solicitor are required to apply for the adoption of precautionary measures in those proceedings in which the involvement of such professionals is required. Legal representation is not necessary in the case of measures requested prior to the application.
2.2. What are the criteria used by the court for granting an injunction?
For a court to grant any of the measures mentioned above, the following requirements must be met:
- Risk of harm through the lapse of time or periculum in mora. This involves the risk of damage that the plaintiff may suffer because of a delay in the proceedings, which may thwart the enforcement of what is laid down in the judgment or decision concluding the proceedings. The party who asks for the measure must prove that, in the case in question, if the measures requested are not granted, situations could arise in the course of the proceedings that would prevent or undermine the effectiveness of the protection that could be granted in the judgment (for the applicant). In any case, the measure should not be granted if the situation causing the risk has been borne by the plaintiff for a long time, except where sufficient reasons are given to explain why the measure was not requested beforehand;
- Prima facie case or fumus boni iuris. The applicant must provide the court with reasons that lead the latter to formulate a preliminary opinion that the application complies with the law. This requirement means that the applicant has to submit details, arguments and supporting documents that lead the court, without prejudging the merits of the case (since in Spain precautionary measures are adopted by the same court which will later judge the case) , to reach a provisional or indicative opinion in favour of the fundamental points in the claim. In addition to documentary evidence, other kinds of evidence are admitted (witnesses, experts, statements by the parties, etc.) ;
- Security. Except where expressly stated otherwise, the applicant asking for the measure must deposit sufficient security to cover the damages that the precautionary measure could cause to the defendant’s assets. The amount is determined by the court having due regard to: (a) the nature and content of the claim; (b) the assessment it makes of the fundamental points in the application for the measure; and (c) reasons or grounds of suitability or sufficiency in relation to the amount of the damages that could be caused by the measures;
- Proportionality. This requirement is not explicitly stated in the Code of Civil Procedure, but legal commentators usually consider it as complementary to the above requirements since courts will not grant a measure unless it is strictly necessary to achieve the purpose of the proceedings for which the precautionary protection is requested. It is derived from democratic principles and the principle of minimum intervention in the liberty of individuals which govern the entire legal system and are laid down in the Constitution.
3. Purpose and nature of the precautionary measures
The aim in adopting a precautionary measure is to deal with or cover the eventuality that in the course of present or future proceedings, the defendant might be obliged either to refrain from carrying out certain acts or to carry out others in relation to his assets. This is, therefore, an attempt to prevent the defendant from carrying out acts aimed at eluding the entry into his property of assets or rights, at causing or permitting damage to assets and at failing to surrender to custody certain assets, hence creating situations of insolvency in order to prevent the effectiveness of a possible judgment.
In Spanish legislation, precautionary measures are judicial in nature since they can only be adopted by the courts. They cannot be adopted by mediators or arbitrators; they do not constitute a specific, exhaustive set of measures; they are dispositive in nature (they can only be adopted at the request of a party) ; they relate to property in that they affect the defendant’s assets and rights; their purpose is to ensure the effectiveness of a possible judgment (for the applicant) ; and lastly they are instrumental with respect to the decision to be handed down in the main proceedings.
They may be adopted with respect to tangible and intangible assets. They do not relate solely to property in that measures to limit personal rights can be adopted on a precautionary basis.
Orders and prohibitions, involving measures consisting of doing or not doing something, may be adopted.
3.1. What types of assets can be subject to such measures?
- Precautionary measures may concern specific tangible assets, above all those that may be measured in terms of money, such as proceeds and revenue obtained from objects.
An attachment may be requested on these assets, obtaining a right of claim derived from a general obligation in which the things owed are not counted individually but are replaced by a specific amount that can be evaluated in terms of money by means of simple mathematical operations.
Concrete movable assets can be impounded and placed with a depositary, a person appointed by the judge on grounds of suitability for the task.
There is also the possibility of seizure, consignment and confiscation of amounts, distinguishing between seizure and confiscation of revenue from an illegal activity and that from authorised activities such as that derived from intellectual property.
- Another group of measures that can be adopted concerns acts that may be authorised by the judge in relation to a claim sought in the application which does not refer to a specifically defined asset.
This includes the possibility of judicial administration or receivership of capital goods in the event of a claim to have them surrendered in terms of ownership, usufruct or any other capacity involving a legitimate interest.
An inventory of assets can also be requested under conditions laid down by the court.
Provisional filing of a claim is permitted when this refers to assets or rights likely to be entered in public registers or other register entries in cases in which publicity would be useful for achieving the purpose of the operation.
Lastly, a court order must be issued for the provisional halting of an activity, for temporarily refraining from doing something or for temporarily prohibiting someone from interrupting or halting the provision of a service that is being provided.
- The last group of things which injunctions can cover concerns materials and specimens that come under the system of exclusivity (judicial sequestration or confiscation of items used for producing goods that generate industrial and intellectual property rights).
Corporate decisions by any kind of trading company can also be suspended.
- Lastly, it is possible in Spanish law to adopt a series of undetermined measures which will protect rights covered by laws or which are regarded as necessary to ensure effective judicial protection. It is not stated which things can be covered by these measures; they may be of any type provided that they are necessary.
3.2. What are the effects of such measures?
- With the attachment of quantifiable objects, money, revenue and proceeds, the aim is to ensure, via the measure, the existence of a surplus to defray the cost of any judgment obtained against the defendant, above all in cases in which the judgment is not complied with voluntarily.
- The confiscation of movable property can only be granted when the application is for the surrender of a specific object in the possession of the defendant.
- Judicial administration or receivership is intended to safeguard particularly productive capital goods, preventing inefficient management from reducing or losing the revenue from production.
- Placing capital goods under the care of administrators involves judicial control but does not deprive the defendant of management. However, receivership is one step further, with the receiver replacing the defendant as manager.
- The petition to obtain the establishment of inventories can be granted in any type of procedure, regardless of what the claim is, with the sole requirement being that it is necessary to have the inventory to ensure that the judgment (for the applicant) is obtained. The judge must establish clearly the details which the inventory must contain and how they are to be realised.
- The effects of provisional filing of claims extend to the procedural situation relating to the proceedings in which they were granted. They attempt to suspend the protection granted by the public nature of registers and of registration certificates, so that the owner of the asset or right entered in the register can sell it, but the third party cannot allege that he was unaware of the subject of the provisional filing, which will affect him. Provisional filing of claims may be granted in all kinds of procedures where protection can be obtained in any public register, such as the property and trade registers.
- Temporal limitations on the action of the defendant. This is regulated by various special laws, therefore limitations must comply with the rules laid down in these laws. The effects include an order to provisionally halt the activity exercised by the defendant, an order to refrain temporarily from a specific form of behaviour or a prohibition on halting or interrupting the provision of a service which is being provided.
- Seizure, consignment and confiscation of amounts. This is clearly a protective measure and constitutes a preventive injunction by ensuring the fulfilment of a demand for a specific amount of cash. This measure is used to obtain seizure and confiscation of revenue from an illegal activity. The measure cannot be split, therefore it is necessary to grant both seizure and confiscation. If one or other measure is required, the generic measures analysed above should be used. Another aim of this measure may be to consign or confiscate amounts claimed as remuneration for intellectual property. This concerns the right of authors to collect certain amounts of money for their work consisting of a proportional share of the revenue generated by the various public performances recognised in the Law on Intellectual Property.
- Depositing of material and specimens under the system of exclusivity. This is a precautionary measure which has its origin in the protection of the exclusive rights of exploitation granted by the special industrial and intellectual property laws to right holders. This is judicial sequestration with specification of the object concerned - specimens or material needed for the production of items covered by exclusive rights.
- Suspension of corporate decisions. This measure is special because of the legitimacy needed to apply for it, either 1% of the company capital if the company has issued shares which at the time of the challenge were listed on a regulated secondary market, or 5% of the company capital if the above case is not fulfilled. This applies to all kinds of trading companies.
3.3. What is the validity of such measures?
Precautionary measures are generally adopted after hearing the defendant. If the applicant claims and provides evidence that the matter is urgent, the judge may grant them within five days, without further procedures and without hearing the defendant. Once the measures are adopted, they may be modified if facts and circumstances are put forward and proven which were not taken into account when the measures were adopted or within the period laid down for opposing the measure.
Should a judgment be handed down that is not in favour of the applicant, the judge must immediately order the lifting of the measure, unless otherwise requested given the circumstances of the case, and with an increase in the guarantee deposited.
In the event of a judgment that is partly in favour of the applicant, the judge will hear the other party and decide whether to lift or to maintain the measure.
If dismissal of the claim is confirmed once a final decision has been issued, the measures will be automatically lifted and the party affected by them may initiate action for the damage caused (the same happens if the plaintiff abandons the action or drops the application).
Another case in which precautionary measures may be altered is when the measure is requested prior to the application and is adopted without hearing the defendant. In this case, if the applicant does not comply with the legally established deadline of twenty days for submitting the application, the measure must be immediately lifted and the defendant paid damages, with any legal costs being paid by the applicant.
A measure cannot be maintained either if the proceedings are suspended for more than six months because of a reason imputable to the applicant.
When provisional enforcement of a judgment is issued, any measures that may have been granted relating to the initial enforcement are abolished and replaced by enforcement measures, so that the nature of the measures originally adopted as precautionary measures changes.
Lastly, the defendant may ask the court to replace the decreed precautionary measure by sufficient security which guarantees effective compliance with the judgment. The judge who adopted the measure is competent to do this. He establishes the security which may be provided in terms of actual money or of a guarantee.
4. Is there a possibility of appeal against the measure?
Procedural rules provide for the possibility of making an appeal to a higher court.
An appeal may be made against the decision which granted the measure, but this does not have a suspensory effect. An appeal can also be made against a decision which rejected the measure.
Together with this possibility of appeal, the applicant may in any case reintroduce his request if the circumstances which existed at the time of his initial petition should change.
No appeal may be made against a decision granting a precautionary measure which was issued without hearing the defendant since, in this case, the procedure to be followed is an opposition procedure, which is handled by the judge who adopted the precautionary measure. The defendant may initiate appeal proceedings, without a suspensory effect, against a decision dismissing his opposition. The applicant has the same right of appeal where the opposition is fully or partly upheld.
Unlike the above, no appeal can be made when security is accepted or rejected.
The preparation and procedural phases of the appeal do not differ substantially from the general rules. Thus the intention to appeal is announced in writing in a preparatory document submitted to the same body which issued the decision to be appealed within a period of five working days from the notification of the decision. If there are several appellants, the deadline is calculated individually. The intention to appeal the decision regarded as prejudicial must be set down in this document. Following this, the judge checks to ensure that the deadline has been observed and that the decision can be appealed. If so, he informs the appellant that he must, within twenty days, submit an application to initiate the appeal proceedings. In this application, he must set down, with arguments, the reasons of form and substance which he considers to be infringed by the decision. This application will be forwarded to the other parties who, within ten days, must submit a statement in writing objecting to the appeal or challenging the decision on some point which they consider to be prejudicial to them. In both cases, the statement must contain reasons and grounds. Once these arguments have been submitted, the documents are handed over to a higher court and the parties are summonsed to appear before it.
As mentioned above, the initiation of appeal proceedings during the procedure of adoption of precautionary measures will not have a suspensory effect, in other words the judge will continue to grant whatever measures he considers necessary to ensure that the precautionary measure is adopted.
Such proceedings are treated preferentially by the court of appeal, and the dates for deliberation, voting and passing of judgment must be granted as soon as possible.
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