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Last update: 17-08-2007
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Legal professions - Spain

 

TABLE OF CONTENTS

1. What is meant by the term "legal profession" in Spain? 1.
2. What are the requirements for practising a legal profession? 2.
3. What are the main areas in which the legal professions are practised? 3.
4. What are the main legal professions in Spain? 4.
5. Are there any other legal professions? 5.
6. Who administers justice? 6.
7. What are the functions of the Public Prosecution Services? 7.
8. What is the function of court clerks? 8.
9. What is the procedure for qualifying as a court clerk? 9.
10. Who is responsible for controlling and supervising court clerks in the exercise of their functions? 10.
11. Is there a fee for the service provided by the Justice Administration? 11.
12. What is the function of notaries? 12.
13. What is the procedure for becoming a notary? 13.
14. Who is responsible for controlling and supervising notaries in the exercise of their functions? 14.
15. How are notaries’ services paid for? 15.
16. What are the functions of the commercial and property registrars? 16.
17. Who is responsible for coordinating and supervising registrars in the exercise of their functions? 17.
18. How are property registrars’ services paid for? 18.
19. What is the function of lawyers? 19.
20. What is the procedure for becoming a lawyer? 20.
21. Which legislation has been adopted by Spain to ensure that lawyers are free to practise, and to provide for the mutual recognition of qualifications? 21.
22. Who is responsible for coordinating and supervising lawyers in the exercise of their functions? 22.
23. ¿ How are lawyers’ services paid for? 23.
24. What is the function of court lawyers in the courts? 24.
25. What is the procedure for becoming a court lawyer? 25.
26. Who is responsible for coordinating and supervising court lawyers in the exercise of their functions? 26.
27. How are court lawyers’ services paid for? 27.

 

1. What is meant by the term "legal profession" in Spain?

A legal profession is a profession that is involved in making and enforcing the law and therefore requires special legal training. A legal practitioner must hold a qualification attesting to specialised legal knowledge.

2. What are the requirements for practising a legal profession?

All legal practitioners must have an academic qualification (usually a law degree) attesting to the necessary knowledge of the law. They must also be members of a professional law association that ensures that those engaged in the profession practise it correctly, both in the public interest and that of the members.

Generally speaking, each of the legal professions has a monopoly of the activities it engages in, although some of these activities may also be carried out by other professionals provided they are sufficiently qualified.

3. What are the main areas in which the legal professions are practised?

Legal professionals are engaged in two main areas: the prevention and settlement of disputes.

The main professions in the area of prevention of disputes are those that ensure legal certainty through advice, documentation or registration services.

The main professions engaged in the settlement of disputes are those involved in litigation. Some of these (usually the liberal professions) direct and represent the parties, while others, members of the judiciary who form part of the public administration, direct legal proceedings and decide on disputes.

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4. What are the main legal professions in Spain?

The following professions practise in the area of prevention of disputes:

  • Lawyers (abogados), who provide legal advice.
  • Notaries, who provide documentation, attestation and advisory services.
  • Property and commercial registrars, who keep public registers recording important legal acts that may affect third parties, check that documents entered in the register conform to legal requirements and advise persons wishing to make entries in the register.

The following professionals practise in the area of settlement of disputes:

  • Lawyers, who direct the parties to litigation and settle disputes through the alternative systems in place.
  • Court lawyers (procuradores), who represent the parties in court.
  • Court clerks (Secretarios Judiciales), who are responsible for documentation and for expediting legal proceedings.
  • Judges (Jueces and Magistradosmagistrados are judges sitting in higher courts), who rule on disputes.

5. Are there any other legal professions?

In addition to the professions listed above, there are other professionals who have to deal with legislative matters and who are therefore required to hold a special qualification (not necessary a law degree) in a particular area of law and be a member of a professional association.

This category includes the holders of certain diplomas, e.g. “graduados sociales” (consultants on labour and social security matters who handle these matters for companies, individuals, etc.). Holders of these qualifications who belong to the relevant professional associations may represent the parties in labour law proceedings.

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6. Who administers justice?

Justice emanates from the people and is administered on behalf of the monarch by the judges constituting the judicial power. Only judges can administer justice, i.e. only they can hand down judgments and ensure that they are enforced. Judges are independent of the other powers of the state and are subject only to the constitution and the law.

Judges are civil servants. There are three categories: Jueces, Magistrados (higher court judges) and Magistrados del Tribunal Supremo (judges of the Supreme Court). Candidates for the category of juez must pass a highly competitive examination and take a course of just under two years at the training college Escuela Judicial de Barcelona. Promotion to the category of magistrado is by seniority although it is also possible to take an examination in certain specialised areas of law (administrative, employment or commercial). In addition, a quarter of the places for judges are reserved for lawyers with at least 10 years’ experience, one third of whom must be court clerks. Most posts of Magistrado of the Supreme Court, promotions to which are made by the Consejo General del Poder Judicial (General Council of the Judiciary), are filled by magistrados with at least 15 years’ experience (including 10 as a magistrado), although one fifth are reserved for lawyers of recognised standing with at least 15 years’ experience (see information sheet on Organisation of Justice).

7. What are the functions of the Public Prosecution Services?

Public prosecutors (fiscales) are civil servants. In order to become a fiscal it is necessary to hold a law degree or doctorate and pass a competitive examination. Public prosecutors are attached to the Fiscalía General del Estado (Crown Prosecution Service) and to the prosecutors’ offices attached to each of the higher courts.

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The functions of the public prosecutors are as follows:

  1. They ensure that the judicial function operates efficiently in conformity with the law and within the stipulated time periods through the necessary actions, appeal procedures and other measures.
  2. They perform the functions assigned them by law in defence of the independence of the judges and courts.
  3. They ensure respect for the constitutional institutions and for fundamental rights and public freedoms by any measures required to defend them.
  4. They are in charge of the criminal and civil actions arising as a consequence of criminal offences and where necessary oppose those brought by others.
  5. They act in criminal proceedings by requesting the judiciary authority to take the necessary precautionary measures and the necessary procedures for ascertaining the facts.
  6. They participate in proceedings concerning civil status and any other legally required procedures in defence of legality and the public or social interest.
  7. They act in any civil proceedings required by law that affect the public interest or the interests of minors, the disabled or the underprivileged until the normal representation mechanisms are provided.
  8. They ensure the integrity of the jurisdiction and competence of the courts and tribunals by raising matters of conflicts of jurisdiction or, where applicable, of competence, and intervene in cases of conflicts of jurisdiction brought forward by others.
  9. They ensure that court judgements affecting the public and social interest are complied with.
  10. They ensure that victims are protected in court proceedings by setting in motion the mechanisms that provide them with effective aid and assistance.
  11. They intervene in protection proceedings.
  12. They file appeals for the protection of constitutional rights, and act as required by law in procedures referred to the Constitutional Court in defence of legality.
  13. They perform the functions assigned to them by the relevant legislation in relation to the criminal liability of minors, in the best interests of the minor.
  14. They act, where and as required by law, in proceedings brought before the Court of Auditors, and defend the legality of administrative and employment court proceedings in cases in which the law provides for their involvement.
  15. They ensure that international court protection is provided as required in international laws, treaties and agreements, if necessary by the public prosecutors.
  16. They perform any other functions assigned to them by national law.

8. What is the function of court clerks?

Court clerks (secretarios judiciales) assist the judges in their functions. They manage the paperwork for court proceedings, keep records of all stages of the proceedings (hearings, trials, etc.), and inform the judge of any documents submitted and of the deadlines for the various procedures. The clerk supervises the staff of the courts and tribunals.

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9. What is the procedure for qualifying as a court clerk?

Court clerks must hold a law degree and pass a competitive examination followed by a course at the training college Centro de Estudios Judiciales. In order to guarantee their absolute independence, they are subject to practically the same regime of incompatibilities and prohibitions as judges.

10. Who is responsible for controlling and supervising court clerks in the exercise of their functions?

The court clerks come under the Ministry of Justice and the Government Secretaries of each of the higher courts of justice.

11. Is there a fee for the service provided by the Justice Administration?

There is no fee for this State service except in the case of legal persons with a turnover above a certain level, who are required to pay a charge.

However, litigants must pay the fees of lawyers, court lawyers and other professionals involved in legal proceedings unless they can provide evidence that they lack the necessary means (see Article 15(c) of the Council Decision of 28 May 2001).

12. What is the function of notaries?

Notaries are legal professionals whose main function is to perform the public service of conferring authenticity on documents in private legal transactions. They also help to draft these documents correctly and to formalise them with their authority and signature. The Notaries Law defines the notary as a civil servant authorised to authenticate contracts and other extrajudicial documents in accordance with the law. Notaries have a twofold role: advising individuals on the best legal means of achieving their ends and certifying facts, acts or transactions executed in their presence in documents drafted by them. This certification has public value. Individuals have the right to free choice of notary except in exceptional cases where the law specifies a particular notary. Notaries authenticate documents in the districts to which they are appointed, except where special authorisation has been granted. Their legal training and practical experience enable them to provide individuals with legal certainty. This training and experience guarantees the accuracy of notarial documents, which are enforceable and are treated as preferred evidence in lawsuits. One of their most important functions is to issue the documents required for making registrations in the Property or Commercial Registers. The documents that can be authorised by a notary are very diverse and fall into 12 categories: acts relating to civil status; wills; marriage contracts; contracts in general; declarations and requests by heirs; the formation, alteration and dissolution of partnerships and commercial undertakings; loans and recognition of simple, secured and mortgage debts; acquittances and discharges; powers of attorney of all kinds; protests of bills; declarations of intestate heirs; and legal documents in general.

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Notarial records are particularly important. The originals or protocols of documents authorised by notaries are kept by them for 25 years from the date of issue. These protocols are then sent to the relevant District Records, which are also kept by notaries. After 100 years they are sent to the Ministry of Education and Culture’s Provincial Historical Records. Notarial consular documents are kept in the General Protocols Archives in Madrid.

13. What is the procedure for becoming a notary?

In accordance with the Notarial Regulation of 2 June 1944, to become a notary it is necessary to pass an open competition. It is also necessary to have Spanish nationality, be over the legally required age and hold a law degree or doctorate.

14. Who is responsible for controlling and supervising notaries in the exercise of their functions?

The organisation of the profession of notary, notaries’ functions and the services they can provide to individuals are governed by the Organic Law on the System of Notaries of 28 May 1962 and the Notarial Regulation (Decree of 2 June 1944), which approve and implement the notarial organisation and system. There are also additional provisions, such as Royal Decree 1426/1989 of 17 November 1989 establishing the scale of notaries’ fees. Notaries are directly controlled by the Ministry of Justice and the Directorate-General for Registers and Notary Services.

This Directorate-General manages, inspects and supervises the body of notaries and resolves any problems or queries that arise regarding the application and enforcement of notarial legislation, appointment of notaries, the notarial system and government of the profession. It also handles and decides on government appeals on matters relating to notaries.

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Notaries belong to professional associations (Colegios Notariales), which support them in the exercise of their functions and supervise their activities. Each of these associations has powers in a particular region. There are 16 of them in Spain, located in Albacete, Palma de Mallorca, Barcelona, Bilbao, Burgos, Cáceres, La Coruña, Granada, Las Palmas de Gran Canaria, Oviedo, Pamplona, Seville, Valencia, Valladolid and Zaragoza. Each region is in turn divided into districts each of which has assigned to it a number of notaries, which varies depending on the district in question.

The Colegios Notariales are headed and coordinated by a General Council (Consejo General del Notariado) which comes under the Ministry of Justice.

Spanish notaries are members of the Unión Internacional del Notariado Latino , an association that groups together practically all notaries in European countries (Germany, France, Italy, etc.), including those in central and eastern Europe (Russia, Lithuania, Hungary, Czech and Slovak Republics, Slovenia). Notaries who do not yet form part of the association are in the process of being incorporated.

15. How are notaries’ services paid for?

In Spain there is full freedom of choice of notary, except in certain cases established by law, such as declarations by heirs.

The scale of notaries’ fees, which is the same for all notaries, is fixed by the Government in Royal Decree 1426/1989 of 17 November 1989. These fees are obligatory, i.e. neither the notaries nor their associations can alter them and notaries are obliged to apply them strictly for all their professional activities.  

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Preliminary consultations are free of charge. Notaries must give impartial advice free of charge on any matter of private, civil or commercial law on which they are consulted, including related tax matters, even if the proposed document is not subsequently executed.

There are reductions in the fees charged for certain documents. For example, there is a 25% reduction in the bases for loans (the total liability guaranteed in mortgages), and a 50% reduction for acts and contracts binding on the State, Autonomous Communities, provincial or municipal governments or their agencies, and those relating to officially protected housing. In other cases, for example proxy votes, notaries’ services are free of charge.

16% VAT is charged on these fees (4.5% general indirect tax in the Canary Islands) with the exception of protests of bills, most loans and certain sale contracts (e.g. for sales of shares where the transferor is subject to VAT), for which no tax is charged.

The system of notarial districts fixed by the Government means that wherever you live there will be a notary close to your home.

16. What are the functions of the commercial and property registrars?

To become a registrar it is necessary to have a degree in law and pass a competitive examination.

Registrars perform the following functions:

they classify the documents submitted for registration in the registers for which they are responsible;

they advise the public on matters relating to registers (entering of legal acts or contracts in the register, effects of registration, etc.);

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they give the public access to the data entered, verifying, where necessary, that persons requesting access have a legitimate interest and duly protecting sensitive data.

The Property, Commercial and Movable Property Registers provide a public record of substantive or legal matters, thereby preventing conflicts and saving legal costs. Register entries are safeguarded by the courts, and the State establishes a presumption of truthfulness with regard to their contents. This means that the rights and facts registered have certain procedural and substantive benefits.

Important acts relating to rural or urban property are entered in the Property Register. By making an entry in the Property Register, the Registrar assigns title to a property.

Acts relating to companies and to individuals or assets (e.g. mutual or pension funds) involved in trading are entered in the Commercial Register. Other duties of registrars relate to the authentication of traders’ books, the depositing and making public of traders’ accounts and in some cases the appointment of experts and auditors.

Ownership of and encumbrances on vessels, aircraft, industrial machinery and other identifiable movable property, as well as general terms of hire, are entered in the Register of Movable Property.

In many Autonomous Communities, the registrars also assess and collect certain taxes on acts that are to be entered in the registers (inheritance tax, stamp tax, etc.).

17. Who is responsible for coordinating and supervising registrars in the exercise of their functions?

Property, Commercial and Movable Property Registrars are civil servants attached to the Ministry of Justice through the Directorate-General for Registers and Notary Services, which is the body responsible for inspecting and controlling the registers.

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Registrars are also members of the Spanish National Association of Registrars, on which the State has conferred certain supervisory functions.

18. How are property registrars’ services paid for?

Registrars’ fees are fixed by the State and paid directly by members of the public who request their services. The register service is funded in full out of these fees, and registrars' salaries are paid out of the amount remaining after payment of their employees' salaries and of the expenses and investments required to maintain the service.

19. What is the function of lawyers?

Under Article 436 of the Organic Law on the Judiciary and Article 8 of the Lawyers’ Statute approved by Royal Decree 658/2001 of 22 June 2001, lawyers (abogados) perform the following functions:

  1. Advising and defending:
    • parties to all kinds of legal proceedings(civil, criminal, administrative, employment and military);
    • vis-à-vis administrative bodies, associations, corporations and public agencies of any kind;
    • vis-à-vis any private entity or individual where necessary in the exercise of their functions.
  2. Legal advice and counselling.
  3. Representation of the client unless this is reserved by law to other professions.

20. What is the procedure for becoming a lawyer?

The requirements for qualifying as an abogado in Spain are as follows:

  • To be a Spanish national or a national of another EU Member State or of a country that is a party to the 1992 Agreement creating the European Economic Area.
  • To be of age and not disqualified for any reason from practising as a lawyer.
  • To hold a Spanish degree in law or an equivalent foreign degree that has been officially approved.
  • To be a member of the Colegio de Abogados (Bar Association) for the district in which the sole or main professional domicile is located, in order to practise anywhere in Spain.

21. Which legislation has been adopted by Spain to ensure that lawyers are free to practise, and to provide for the mutual recognition of qualifications?

Under the Lawyers’ Statute, lawyers from other countries may provide professional services in Spain in accordance with the current legislation, which distinguishes between two different groups:

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  • Nationals of EU Member States and, under the Agreement creating the European Economic Area signed in Oporto on 2 May 1992 and ratified by Spain on 26 November 1993, nationals of the EEA States. In accordance with the principle of free circulation of persons and services in the Member States, there are at present various different alternatives:
    • The right to practise for an indefinite period with the qualification obtained in the country of origin, with the possibility of incorporation into the profession after three years’ effective and regular practice. español 
    • Recognition of the professional qualification obtained in the country of origin, giving the right to practise on the same terms as holders of the Spanish qualification. español
    • Occasional provision of professional services using the qualification obtained in the country of origin. español
    • In addition, persons not qualified to practise in their country of origin but holding the foreign qualification required for access to the profession may apply for recognition of this qualification in Spain and subsequently enter a Spanish Bar Association. español
  • Persons who are not nationals of an EU or EEA Member State:
    • In order to become a member of a Spanish Bar Association, they must first have their qualifications officially recognised and then apply for a dispensa legal de nacionalidad (exemption on the grounds of nationality).

22. Who is responsible for coordinating and supervising lawyers in the exercise of their functions?

Lawyers are independent members of a liberal profession who provide a service to society. They are not civil servants and practise on the basis of free and fair competition (Article 1 of the Lawyers’ Statute).

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Lawyers must comply with

  • laws and statues;
  • the code of ethics and conduct for the profession.

The following bodies are responsible for ensuring that lawyers exercise their functions correctly:

  • at national level, the General Council of Lawyers
  • in each Autonomous Community, the Council of the Bar Associations in that Community
  • in each province, the provincial or district Bar Associations.

23. ¿ How are lawyers’ services paid for?

Lawyers’ fees are charged for the services provided and can be paid in the form of a fixed fee, periodic payments or fees per hour. Contingent fees are forbidden, i.e. agreements entered into by lawyers and their clients prior to the conclusion of a proceeding whereby the client undertakes to pay the lawyer only a percentage of the benefit obtained for the client when the proceeding concludes, regardless of whether this is a sum of money or some other kind of benefit, asset or value.

The amount of the fee can be fixed freely by the client and the lawyer provided it does not infringe the professional code of ethics or the rules of fair competition. If the lawyer and the client fail to agree on a fee there is an adversarial procedure, which is decided on by the judge to whom the case is referred.

Unless some other agreement has been reached or the client has been ordered to pay costs, fees are based on the tentative fees set by the Bar Association for the province in question, applied in accordance with the Association’s rules, practice and customs (Article 44 of the Lawyers’ Statute).

Clients who do not have the necessary means to pay for lawyers’ and court lawyers’ services can request free legal aid (see the information sheet on Legal Aid).

24. What is the function of court lawyers in the courts?

Court lawyers (procuradores) represent the rights and interests of the parties in the lawcourts through a power of attorney granted for this purpose, and ensure that communications between the courts and the parties are duly authenticated.

25. What is the procedure for becoming a court lawyer?

In order to qualify as a court lawyer it is necessary to have Spanish nationality, to be of age, to hold a law degree and to have obtained the title of procurador, which is given by the Ministry of Justice to applicants who have fulfilled the requirements.

In order to practise as a procurador it is necessary to register with a Colegio de Procuradores, deposit a bond and swear an oath or promise to the court.

26. Who is responsible for coordinating and supervising court lawyers in the exercise of their functions?

The Governing Body of the Colegios de Procuradores is responsible for ensuring that members perform their duties properly.

27. How are court lawyers’ services paid for?

Court lawyers’ fees are fixed by the Ministry of Justice.

Further information

« Legal professions - General information | Spain - General information »

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Last update: 17-08-2007

 
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