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Last update: 22-04-2005
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Jurisdiction of the courts - Spain

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If you want to initiate legal proceedings in civil or commercial matters, you will have to identify the court that is competent to deal with your case or, in other words, has jurisdiction. If you use the wrong court or if there is a dispute over the question of jurisdiction, you run the risk of a considerable delay in the proceedings or even of a dismissal of your case because of a lack of jurisdiction.



 

TABLE OF CONTENTS

A. Should I apply to an ordinary civil court or to a specialised court? A.
B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to? B.
I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case? I.
II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?) II.
1. The basic rule of territorial jurisdiction 1.
2. Exceptions to the basic rule 2.
a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court? a)
b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)? b)
c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise? c)
C. Where specialised courts have jurisdiction how can I find out which one I have to address? C.

 

A. Should I apply to an ordinary civil court or to a specialised court?

  • The principle of jurisdictional unity governs the legal system in Spain, with the sole exception of military courts in times of war and states of siege, and of the Constitutional Court which is the ultimate guarantor of fundamental rights and public freedom, by means of appeals for legal protection.
  • Without prejudice to this, the legal system consists of four types of courts: civil, criminal, administrative and labour courts.
    • The basic civil court body is the “Court of First Instance” which, together with the Magistrates’ Courts, are the courts to which civil and commercial cases are first referred.

    Cases not expressly brought before another type of court are also heard by civil courts. Therefore they can be described as “ordinary courts” or “common courts”.

    The civil courts include the “Family Courts” which are Courts of First Instance. In the places in which they are established, generally where there is a large population, they deal with the following kinds of cases exclusively or because they have been returned to them by another court: matters relating to judicial separation, annulment, divorce, filiation and paternal authority over minors.

    The civil courts also include the “Commercial Courts” and the “Community Trademark Courts” which are legal bodies specialised in the type of cases that may arise in these respective areas of law.

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    • The judicial labour system consists of “Labour Courts”, to which claims relating to industrial relations are referred, including individual disputes between workers and employers relating to employment contracts, disputes relating to collective bargaining and complaints concerning social security or the State in the cases in which it is responsible for labour legislation.
    • The criminal system deals with criminal cases and proceedings.

    One characteristic of Spanish law is that civil proceedings arising out of a criminal act can be jointly heard with the criminal proceedings. In this case, the criminal court shall decide on the corresponding compensation to repair the damages caused by the offence or misdemeanour. Even if the injured party does not take the matter to court, if he does not expressly waive the civil action in the criminal case, the Public Prosecutor will take the case to court on his behalf.

    • Lastly, the administrative courts deal with checks regarding the legality of acts by the public authorities and complaints concerning responsibility for property levelled at these authorities.

B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?

I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?

  • There is no distinction in Spain between Courts of First Instance. All of them are at the same level.

The only exception to this are the Magistrates’ Courts which in first instance hear civil cases relating to small amounts – at the moment less than €90 – and where the magistrate in charge is not a professional judge.

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  • The jurisdiction of these courts is confined to municipalities in which the Courts of First Instance are not established.

II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)

For judicial purposes, the territory of Spain is divided into “Municipalities”, “Districts”, “Provinces” and “Autonomous Communities”. Districts are territorial units consisting of one or more bordering municipalities belonging to the same province, and they are the most important territorial division since they form the area in which Courts of First Instance have jurisdiction (see “Partidos judiciales - – Mapa” on the Ministry of Justice website).

In the communities where this is required because of the workload, which is currently almost all of them, there are various courts of the same class which are designated by number in accordance with the order in which they were established.

All of these courts have, in principle, the same jurisdiction, and cases are distributed among them according to internal working procedures. However, in some cases, under these working procedures, certain types of cases may be allocated to particular courts in the same district.

1. The basic rule of territorial jurisdiction
  • In the absence of an agreement and of mandatory rules, the Court of First Instance, as a “General Court”, of the district where the defendant has his legal residence, or in the absence of this, where he lives, has jurisdiction. If the defendant does not have his legal residence or live in Spain, the Court of First Instance of the district where the defendant is or where he last lived has jurisdiction. If none of these criteria can be applied, the plaintiff may refer the case to the Court of First Instance of the district in which he has his legal residence.
  • To this end:
    • Plaintiffs can choose to bring cases against employers and professionals regarding matters arising from their business or professional activities in any place where they conduct these activities.
    • Cases may also be taken against companies in the place where the legal relationship or situation referred to in the dispute occurred or is taking effect, provided that they have an establishment or representative in that place.
2. Exceptions to the basic rule
a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?

At the moment, the Spanish court system is little inclined to leave the determination of territorial jurisdiction to the plaintiff. This happens only in the following cases:

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  1. Proceedings concerning property, when brought with regard to various properties or to only one, which is located in different jurisdictions. In this case, the plaintiff can choose any one of the jurisdictions.
  2. Proceedings for the presentation and approval of accounts which must be produced by administrators of borrowed capital, when it is not determined where they should be presented. In this case, the plaintiff can choose between the place where the defendant has his legal residence and the place where the administration is carried out.
  3. Disputes concerning inheritance, in which the plaintiff may choose between the courts of the last place in Spain where the deceased had his legal residence and the places where most of the properties in the inheritance are located.
  4. Proceedings concerning intellectual property, in which the plaintiff can choose between the place where the infringement took place, the place where there are indications that it took place, and the place where the illegal examples are.
  5. Disputes concerning unfair competition, when the defendant is not established, does not have his legal residence or does not live in Spain. In these cases, the plaintiff can choose between the place where the act of unfair competition took place and the place where it is taking effect.
  6. Cases exclusively concerning the custody of minors or concerning maintenance claimed by one parent from the other on behalf of the minors, when both parents live in different judicial districts. In these cases, the plaintiff can choose between the court in the place where the defendant has his legal residence and the one in the place where the minor lives.
b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?

The following mandatory rules exist obliging the plaintiff to approach a different court from that of the place where the defendant has his legal residence. In these cases, consent is not possible, whether express or tacit:

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  1. Real or tenant’s rights over property and matters arising from the condominium property system in which the courts located in the district where the property is situated are given jurisdiction.
  2. Matters relating to inheritance in which jurisdiction is determined by the place in which the deceased had his final legal residence in Spain, or in which most of the property in the inheritance is located. The plaintiff may choose from these two options.
  3. Matters relating to the assistance or representation of disabled persons, for which the court in the place in which they live has jurisdiction.
  4. Civil judicial protection of fundamental rights, for which the court in the place where the plaintiff has his legal residence has jurisdiction, and if this is not in Spain, the place where the fact infringing the right in question was allegedly committed.
  5. Claims relating to damage arising from motor vehicle traffic, for which the court in the place where the damage was caused has jurisdiction.
  6. Challenging of labour agreements, in which territorial jurisdiction is determined by the place where the company has its registered office.
  7. Proceedings to obtain the non-inclusion or nullity of general contract conditions, for which the court in the place where the plaintiff has his legal residence has jurisdiction.
  8. Declaratory proceedings and proceedings for discontinuation or retracting in relation to general contracting conditions, when the defendant does not have his legal residence or is not established in Spain. In this case, the court in the place where the contract was concluded has jurisdiction.
  9. Proceedings for discontinuation in defence of collective or general rights of consumers or users when the defendant is not established or does not have his legal residence in Spain. In this case, In this case, the court in the place where the plaintiff has his legal residence has jurisdiction.
  10. Proceedings to demand that an insurance entity which has sold you movable property by hire purchase or has financed its purchase, or has made a bid for movable property or services which you have accepted. In these cases, the courts in the place where the plaintiff has his legal residence have jurisdiction.
  11. In mediation proceedings, for which the court in the place where the body which granted the attachment has its registered office.
  12. Proceedings for judicial separation, annulment or divorce, for which the Court of First Instance in the place where the family residence is has jurisdiction. In the absence of this, the court in the place where the family residence was last located or in the place where the other spouse lives has jurisdiction. Should none of these cases apply, the court where you have your legal residence has jurisdiction. If the proceedings are initiated by mutual agreement, the court in the last place where the spouses had their legal residence or where either one of the spouses now has a legal residence has jurisdiction (see “ Divorce – España”).
  13. Claims exclusively concerning the custody of minors or concerning maintenance claimed by one parent from the other on behalf of the minors. In this case, the court in the last place where the parents had their legal residence has jurisdiction. In the event that the parents live in different judicial districts, the plaintiff can choose between the court in the place where the defendant has his legal residence and the one in the place where the minor lives.
c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?

As a general rule, territorial jurisdiction is extendible in Spain, which means that litigants can stand trial, expressly or tacitly, in the courts of a particular district provided that the latter are objectively competent to handle the case.

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  • Express consent is consent agreed expressly by the parties concerned, specifically stating the district in whose courts the parties will initiate the proceedings.
  • Tacit consent takes place:
    1. for the plaintiff, by the mere fact of going to a court in a particular district to file a case or to lodge a petition or application which must be made to the court which has jurisdiction for this.
    2. It is considered that the defendant has tacitly consented when, after having appeared in person in the court, he takes any step other than that of proposing in due forms a declinatory plea (plea claiming exemption from the court’s jurisdiction).

Nonetheless:

  • In standard-form contracts or contracts containing general conditions introduced by one of the parties, or in contracts concluded with consumers or users, tacit consent applies, but not express consent.
  • In the cases in which the law establishes territorial jurisdiction rules which are mandatory, neither type of consent applies.
  • Neither type of consent applies in disputes that must be decided by oral proceedings.

C. Where specialised courts have jurisdiction how can I find out which one I have to address?

Specialised courts in Spain include:

  • The “Family Courts” are Courts of First Instance which, in the places in which they are established, generally where there is a large population, deal with the following kinds of cases exclusively or because they have been returned to them by another court:
    - judicial separation, annulment, divorce and
    - cases relating to the exercise of parental authority over minors.

The rules governing territorial jurisdiction of Family Courts are the same as for the Courts of First Instance when the latter have to deal with issues usually dealt with by Family Courts because there are no specialised courts of this nature in the district.

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  • The “Labour Courts” deal with cases brought under labour law, including individual disputes between workers and employers relating to employment contracts, disputes relating to collective bargaining and complaints concerning social security or the State in the cases in which it is responsible for labour legislation.

The general rule attributes territorial jurisdiction to the court in the place where the services are provided or where the defendant has his legal residence. The plaintiff can choose between these two options.

  • The “Commercial Courts”, which will start operating on 1 September 2004, are courts specialised in disputes that may arise in commercial law.
These courts will deal with the following:

- Any cases brought in relation to bankruptcy, for instance:
1. Civil proceedings relating to the assets of the bankrupt, with the exception of proceedings brought in cases relating to capacity, filiation, matrimony and minors.
2. Labour cases aimed at the collective cancellation, amending or suspension of employment contracts in which the bankrupt is the employer, and the suspension or cancellation of senior management contracts.
3. All precautionary measures and procedures relating to the goods and rights forming part of the bankrupt’s assets, irrespective of which body ordered this.
4. Proceedings aimed at demanding that company directors, auditors or, where appropriate, liquidators, be held liable for damage caused to the bankrupt during the procedure.

- Claims for which cases are brought relating to:
1. unfair competition
2. intellectual property and advertising
3. company law and law on cooperatives
4. national or international transport
5. maritime law
6. general contract conditions
7. the application of rules on arbitration concerning earlier matters.

Territorial jurisdiction of these courts is provincial, while the commercial court in the place where the debtor’s main interests are located has jurisdiction to declare and process a bankruptcy. If the debtor also has his legal residence in Spain and this is not the same as the place where his main interests are located, the applicant creditor may choose the commercial court of the place where the interests are located.
If the debtor is a company, it is presumed that its main interests are located in the place where the company’s registered office is situated. If the company changes registered offices within the six months prior to the petition for bankruptcy, the change of address shall not be taken into account for the purpose of the proceedings.
  • The Commercial Courts in the Alicante area are known as the “Community Trademark Courts” when they have jurisdiction to deal with in first instance and exclusively all proceedings brought under Council Regulation No 40/90 of 20 December 1993 on the Community trademark, and Council Regulation 6.2002 of 12 December 2001 on Community designs.

These Courts have jurisdiction over the entire national territory for such cases.

  • Under the conditions in force until now, the Courts of First Instance have jurisdiction for cases that will be handled by the Commercial Courts once they come into operation.
  • Apart from these specialised courts, the law states that, where there are various Courts of the same class, the General Council of the Judiciary can agree that one or more of them take charge exclusively of certain types of cases or legal procedures.

This option has already been exercised with regard to certain groups, particularly in relation to disablement and forcible committal because of mental illness.

« Jurisdiction of the courts - General information | Spain - General information »

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Last update: 22-04-2005

 
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