Service of documents - Spain

TABLE OF CONTENTS 1. What does the legal term “service of documents” mean in practical terms? Why are there specific rules on the service of documents?  2. Which documents need to be served formally?  3. Who is responsible for serving a document?  4. How is the document in practice normally served?  5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?  6. Is there any written proof that the document has been served?  7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)?  8. Do I have to pay for the service of a document, and if so, how much?

 

Sending a legal document is not the same thing as posting a letter. If you are a party to legal proceedings, it will be necessary to send various documents to the party with whom you are having the dispute and to receive other documents. This is the only way in which the right of defence is adequately protected, since the basic assumption underlying this is knowledge of the existence of the proceedings. In legal terms, this means serving documents and procedural writs drawn up by the parties and by the court.

In principle, the first procedural writ issued by the court is the order to attend or summons informing the other party of the initiation of the proceedings. This is communicated by the court itself, under the direction of the Court Clerk, through the offices of a civil servant employed by the court, who appears in person at the home of the defendant or of the person who is to take part in the proceedings in another capacity.

This need for service arises not only at the beginning of the proceedings, but also during the various other phases, and concerns the parties who are represented as well as those not represented who have to appear before the court (witnesses, experts, etc.). In Spain, the court itself is in charge of serving documents, communicating procedural writs and notifying its decisions to the parties and to other persons involved in the proceedings.

If the parties are represented (normally the parties must be represented in court by a solicitor (procurador) duly empowered to act in the court where the proceedings are being heard; legal representation is not compulsory in oral proceedings in which the amount at stake does not exceed €900 and in applications for orders for payment procedures), it is the solicitor who, as the representative of the party, receives and signs all documents. If there is no such representation, the documents are served directly on the person concerned.

1. What does the legal term “service of documents” mean in practical terms?

Why are there specific rules on the service of documents?

In Spain as in England, no distinction is made between the French concepts of “notification” (formality whereby the contents of a document are communicated to a person for information) and “signification” (the name given to the service process carried out by a bailiff or huissier de justice). The parties’ documents are communicated to the other parties and procedural writs are served by means of “actos de comunicación judicial” (judicial communications), always by the court under the direction of the Court Clerk, who is responsible for the proper organisation of this service. These documents are in actual fact served by the Court Clerk himself or by a civil servant designated by him, in one of the following ways:

1. Documents are served via the solicitor, in the case of documents addressed to those represented in the proceedings by this legal representative.
2. Documents to be served are remitted by post, telegram or any other technical means which provides a reliable record of the reception, date of reception and content of the document.
3. Personal remittance to the addressee by the Court Clerk or civil servant designated by the former of a full copy of the decision to be notified, of the injunction addressed to him by the court or of the summons or order to attend.
4. In the event that the addressee cannot be located (in which case there is an obligation to look for the address in the various public registers that exist, many of which can even be accessed electronically from the court itself), notification will be carried out by posting notices on the door of the court (these notices may also be published in Official Gazettes or other media at the request of the plaintiff). An exception to this are judgments which must be published in the Official Gazette of the Autonomous Community in addition to being posted on the notice board of the court.

Not all procedural writs issued by the court are equal, and a distinction must be made between them depending on their purpose, for instance:

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1. Documents aimed at communicating a decision, legal measure or procedure.
2. Orders to attend, the purpose being to inform the addressee of the need to appear in court in order to take action within the deadline indicated.
3. Summonses informing the addressee not of a deadline, but of a place, date and specific time at which he must appear in court and act in relation to the purpose indicated in the summons.
4. Injunctions ordering the addressee, in accordance with the law, to do something or to refrain from doing something.
5. Orders addressed not to citizens but to registrars of property, companies, ships and hire purchase of movable property, to notaries, to commercial brokers and to civil servants employed by the courts. These orders state that they must release certificates or evidence or perform any other act which they are competent to perform.
6. Judicial instructions addressed to non-judicial authorities and officials other than those mentioned in the previous paragraph.

These specific rules governing judicial documents are justified because these documents are not mere formal requirements but a means of guaranteeing the parties to the proceedings, as well as those who must or may be party to the proceedings, that their legitimate rights and interests are defended on the basis of the fundamental right to effective judicial protection and the principle that no-one must be without proper legal representation, the exercise of this right being based on the presumption of awareness of the existence of proceedings.

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2. Which documents need to be served formally?

All important documents forming part of the proceedings must be communicated to all those taking part in the proceedings and also to those referred to and to those who can bring a halt to damage. Hence:

1. Court decisions and organisational measures taken by the Court Clerk must be notified to all those who are party to the proceedings.
2. By order of the court, the proceedings pending will also be notified to those who, according to the case documents, may be affected by the judgment that is eventually issued, or to persons concerned. A document of this kind will be served, under the same conditions, when the court becomes aware of evidence that the parties are using the proceedings for fraudulent purposes.
3. Third parties will also be notified in the cases provided for by the law.

3. Who is responsible for serving a document?

Court documents are always served by the court under the direction of the Court Clerk, who is responsible for the proper organisation of this service. Documents are served in practice by the Court Clerk himself or by an official designated by him. Normally the civil servants traditionally known as “agentes judiciales” (judicial officers), but who since 2004 have been known as “funcionarios del cuerpo de auxilio judicial” (court auxiliary officials), serve documents such as notifications, summonses, orders to attend and injunctions in the form envisaged by the Code of Civil Procedure (Law 1/2000).

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Service of a document by a court auxiliary official is not the only way in which notification can be made. Other methods may be used such as the post, telegrams or via the legal representative.

To summarise, documents may be served in Spain as follows:

1. Via the solicitor, in the case of documents addressed to the persons represented in the proceedings by this legal representative. Representation by a solicitor is necessary except in oral proceedings for which the claim does not exceed €900, in applications for orders for payment procedures, in bankruptcy proceedings when appearances are confined to the presentation of claims, or to call on meetings of creditors, in cases relating to the challenging of decisions regarding free legal aid, and when urgent measures are requested prior to the hearing. While the power of attorney is valid, the solicitor is the person who signs and receives the summonses, orders to attend, injunctions and documents of all kinds, including the judgments referring to his party, throughout the course of the proceedings and up until the judgment is enforced. These acts have the same force as though the principal who empowered the legal representative to act on his behalf was directly involved. However, it is not lawful for him to request that the court communicate with him.
2. Documents to be served are remitted by post, telegram or any other technical means which provides a reliable record of the reception, date of reception and content of the document.
3. The court auxiliary official hands over to the addressee a full copy of the decision to be notified, of the injunction addressed to him by the court or of the summons or order to attend. The summons states which court issued the decision, and indicates the case in question, as well as the name and address of the person to whom the summons or order to attend is being served, its purpose and the place, date and time at which the person summonsed must appear, or the period within which the act referred to in the summons must be carried out, with a warning being given of the consequences that will ensue in each case pursuant to the law. No reply of any kind by the party concerned is permitted or recorded in the notices, summonses or orders to attend, unless this has been expressly ordered. In the case of injunctions, the person concerned may reply, and this is succinctly recorded in the instrument.
4. In the event that the addressee cannot be located (in which case there is an obligation to look for the address in the various public registers that exist, many of which can even be accessed electronically from the court itself), service will be effected by posting notices on the door of the court (these notices may also be published in Official Gazettes or other media at the request of the plaintiff). An exception to this are judgments which must be published in the Official Gazette of the Autonomous Community in addition to being posted on the notice board of the court.

(In the case of the service of documents from or addressed to a European Union country, Council Regulation (EC) No 1348/2000 of 29 May 2000 is applicable. When Spain incorporated it into its legislation, it appointed as transmitting agencies the Clerks of Courts of First Instance and as receiving agencies the Clerks of Senior Courts or Clerks responsible for common notification services. To find them, please consult the judicial map of Spain. It is also possible to consult the website of the European Judicial Atlas in Civil Matters where such bodies are directly indicated.)

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4. How is the document in practice normally served?

In the case of persons who are or may be party to the proceedings, it depends on the procedures for serving and on the type of document and service used:

1. When a document is served via a solicitor (in other words where the parties are represented), the procedures are as follows. There is a document reception service organised by the Solicitors Association (the SRCP) in every judicial building that is the seat of a civil court. Copies of documents produced by the parties to the proceedings are served to the solicitors of the other parties via this service and prior to the physical presentation of the document in the court. In this case, the service receives the document and serves copies on the other solicitors. Once this has happened, a record is set down in a document stating the number of copies handed to the other solicitors and the number of solicitors. This document, together with the original document being served, is then delivered to the court by the service. On the other hand, in the case of a document being served by the court on the solicitors, a copy of the decision or summons is submitted in duplicate, with the solicitor receiving one copy and signing the other one, which must be returned to the court by the same service. The act of serving the document is understood to be completed on the day following the date of receipt. (Excluded from this system are the documents, summonses, orders to attend and injunctions which the law states must be served on the litigants in person.)
2. If the parties are not represented by a solicitor, and in the case of the first summons or order to appear addressed to the defendant, the documents are delivered to the addresses of the litigants.

The plaintiff’s address is the one recorded in the petition or application initiating the proceedings. The plaintiff designates as the address of the defendant the one he has on record, and this is the one used for the first order to attend or summons. If the plaintiff designates several places as addresses, he must indicate the order in which, in his view, the document can be successfully served. The plaintiff must also indicate any details he knows concerning the defendant which may be useful in locating the latter, such as telephone and fax numbers and similar details.

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Once the defendant has appeared, he may designate a different address for subsequent communications.

Should the parties change addresses during the proceedings, they must immediately notify the court. They must also report any changes to their telephone or fax numbers or similar details, provided that the latter are being used as means of communication with the court.

A copy of the decision or summons is served on the addressee by the official at the seat of the court or at the address of the person to be notified or summonsed, or on whom an injunction is to be served. This is recorded in an acknowledgement signed by the Court Clerk or by the court auxiliary official serving the document and by the person on whom it is served, whose name must be indicated (if he refuses to sign, this is recorded, and if he refuses to receive the document, he is informed that it is available for him at the seat of the court, and that the service will take effect from the day following the date of this record).

A Common Notification and Injunction Service (Servicio Común de Notificaciones y Embargos - SAC) has been set up in provincial capitals and large towns, under the aegis of the Senior Judges’ Office, which deals with the serving of documents for the entire court.

Documents to be served on witnesses, experts and other persons who, while not party to the proceedings, have to take part in them, are served by remitting a copy of the decision or summons by registered post or telegram with acknowledgement of receipt, or by another similar means which provides a reliable record of reception, date of reception and content of the document. The Court Clerk indicates in the records the remittance and the content of the document remitted and attaches, where appropriate, the acknowledgement of receipt or the means by which receipt of the document by the addressees is recorded. The document is remitted to the address designated by the party concerned. Where appropriate, the necessary checks may be conducted with respect to the address or residence of the person on whom the document is to be served. The witnesses, experts and other persons who, while not parties to the proceedings, have to take part in them, must notify the court of any change of address that occurs in the course of the proceedings. They are informed of this obligation the first time they appear in court.

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Under the Spanish Code of Civil Procedure (Law 1/2000), it is possible to serve documents by electronic and similar means provided that the courts and parties or addressees of the documents have access to electronic media, telematic media, electronic telecommunications or other similar media that permit the sending and receipt of documents in such a way as to guarantee the authenticity of the communication and contents and also to provide a reliable record of remittance and reception of complete documents and of the time when this takes place. If these requirements are met, the documents may be served using such media with the appropriate acknowledgement of receipt. To this end, the parties and the professionals involved in the proceedings must state to the court that they have access to the above-mentioned media, and must provide their e-mail addresses. This Law also provides for the creation of an electronic register at the Ministry of Justice that can be accessed using the said media and contains the addresses of public bodies. When the authenticity of decisions, documents, opinions or reports submitted or served using the above-mentioned media can be recognised or verified only by direct examination or by other means, they must be delivered or served on the parties and persons concerned in a way that enables them to be verified by these means, respecting the time and location requirements laid down by law in each case.

In the event that the document has to be served in a territorial area different from the one where the court issuing it is located, the court with jurisdiction over that area must be asked to serve the document. This is known as judicial assistance and, in this case, the document is served by the court to which the request is made (in a rogatory letter) in the form indicated beforehand. The copy of the decision or corresponding summons is enclosed with the rogatory letter, as well as other documents, depending on each case. The documents must be served within a period of no more than twenty days from the date of receipt.

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5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?

In principle, if the parties are not represented by a solicitor and have chosen an address for service before the court, documents served to any of the addresses designated will take effect as soon as correct remittance of the document to be served has been recorded, even if receipt by the addressee has not been recorded.

If no address for service has been given (which is quite usual in the case of a document intended to summons a person to appear in court or to obtain the personal intervention of the parties in certain procedural phases), documents can in principle be served on persons other than the addressee, provided that there is a close relationship with him as laid down by the law.

Thus if the address where an attempt is made to serve the document is the place where the addressee has his domicile according to the municipal register, tax register or any other official register or publications by professional associations, or if it is the residence or premises rented by the defendant, and the addressee is not there, the document may be served on any employee or family member over the age of 14 who is at the address, or on the caretaker of the building, where appropriate, informing the person receiving it that he is obliged to hand over this copy of the decision or summons to the addressee in question or to inform him of it if he knows of his whereabouts.

If the document is addressed to the addressee’s place of non-casual work, the document will, if the addressee is absent, be served on a person who states that he knows him or, if there is a department responsible for receiving documents or objects, on the person in charge of it. The name of the addressee and the date and time at which he was sought and not found at home are recorded in the acknowledgement, as well as the name of the person who received the copy of the decision or summons and the relationship between this person and the addressee, with the document thus served coming into effect fully.

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In the event that nobody is found at the address where an attempt was made to serve a document, the Court Clerk or an official designated by him must endeavour to find out if the addressee lives there. If he no longer lives or no longer works at the address in question, and any of the people questioned know his current address, this is recorded in the negative acknowledgement of the serving of the document. If it is not possible to find out the address of the defendant in this way, and the plaintiff has not designated other possible addresses, the court must try to find out the address of the defendant by means of official registers or using an address featured in publications by professional associations, in the case, respectively, of undertakings and other entities or of persons engaged in a profession who are obliged to join such associations. The court must also approach the defendant’s place of professional activity or non-casual work (in some cases direct access by electronic means may be possible from the court itself). If an address or place of residence is discovered as a result of these enquiries, the document is then served. If these enquiries prove fruitless, the document must be served by means of notices, with it being placed on record that the aforesaid attempts to find out the address or place of residence were fruitless. In this case, the document is served by posting a copy of the decision or summons on the court notice board. Exceptionally, at the request of one of the parties and at his expense, it will be published in the Official Gazette of the province or of the Autonomous Community, or in the Official State Gazette or in a national or provincial newspaper.

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Since it may happen that various courts have attempted to locate the same person, with a view to streamlining the process and avoiding unnecessary repetition by each judicial body of attempts to find out addresses the Spanish Code of Civil Procedure (Law 1/2000) provides for the creation of a central register of absentees, located at the Ministry of Justice. Courts that have already, to no avail, carried out checks on the address or residence of the defendant can consult this register, communicating the name of the defendant and other identity details which they have on record. Any court needing to check the address of a defendant can consult the register to see whether the defendant is featured there and whether the details that appear in it are the same as those in its possession. In this case, there is no need to make further enquiries since such enquiries were already carried out by the first court which tried to locate the defendant, and the court can directly decide to serve documents by posting notices. Defendants entered in this register may request the cancellation of the entries by communicating the address at which court documents may be served on them. In this case (if the person in the register has been located), the register informs the courts which are engaged in proceedings against this defendant of the address given for the purpose of serving documents, with documents served from this time to this address being valid.

6. Is there any written proof that the document has been served?

There is always, in every case, written proof that the document has been served. This is recorded in the written transcript, certified by the Court Clerk. The procedures depend on the means by which it was decided to serve the document.

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When documents are served at the court or via the common reception service organised by the Solicitors Association (SRCP), this is recorded by the signature of the solicitor or the party on the copy of the document or acknowledgement which is drawn up for this purpose and certified by the Court Clerk.

When documents are served by remitting a copy of the decision or summons by registered mail or telegram with an acknowledgement of receipt, or by other similar means, the Court Clerk certifies the record of remittance and content of the document remitted, attaching, where appropriate, the acknowledgement of receipt or the means by which receipt was recorded.

When documents are served by delivery to the addressee, delivery is recorded by an acknowledgement drawn up by the official, which is signed by the addressee, or by means of a copy of the decision, which is signed by the addressee.

In the event that it was necessary to resort to the posting of notices, this is recorded by means of an acknowledgement certified by the Court Clerk stating that the notice was posted on the notice board of the court and stating the period in which it remained there, together with a copy of the Gazette in which the notice was published in the event that this additional measure was applied.

7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)?

Can the service of the document nevertheless be valid (e.g. can violations of the law be remedied) or must a new effort to serve the document be made?

A document may be served on a person other than the addressee in certain cases laid down by law that have been analysed already, in which case the documents are validly served.

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In cases where documents are not served in accordance with the Code of Civil Procedure (Law 1/2000), in line with the rules mentioned in response to the previous questions, they will be invalid wherever they could result in the person concerned being without proper legal representation. A court decision is necessary declaring that the document in question is invalid, although a request can be made ex officio to have it declared invalid. Notwithstanding this, if the person notified, summonsed, ordered to attend or on whom an injunction has been served states that he has been informed of the case, and does not denounce the fact that service of the document is invalid during his first appearance before the court, the document will come into effect as though it had been served in accordance with the law. For this reason, the document need not be served again in this case.

It is essential that documents be served validly since, if the defendant does not appear duly at the proceedings on the date and in the place indicated in the summons or notice, he is declared in contempt of court, and the proceedings continue without allowing him to act. In this case, if the defendant continues to be absent, he must apply for the proceedings to be declared invalid during the enforcement phase.

It is even possible that, although the documents were served validly, the defendant can ask for and obtain the annulment of a final judgment damaging to his interests, but only in certain exceptional cases and on very limited grounds, and provided that the judgment was not notified to him personally. This request must be made before the court within a period of between twenty days and four months. The only grounds that can justify such a request are the following:

• a situation of uninterrupted force majeure existed which prevented the person in contempt of court from appearing at any time, although he was aware of the litigation because he had been duly summonsed or notified.
• he was unaware of the petition and litigation because the summons or notice was served in the form of a writ of summons, but this did not come into the hands of the person in contempt of court for reasons beyond his control.
• the defendant in contempt of court was unaware of the petition and litigation because he was summonsed and notified by means of notices and had been absent from the place in which the proceedings were conducted, and had not been anywhere else in Spain or in the Autonomous Community in whose Official Gazettes the notices were published.

8. Do I have to pay for the service of a document, and if so, how much?

To answer this question, it is necessary to look at the way in which the document was served.

Documents served by courts are free of charge.

Documents served by solicitors give rise to fees and charges (the scale of charges is regulated by Royal Decree 1372/2003 of 7 November 2003). In principle, these charges are paid by the party who granted power of attorney to the solicitor in question, unless he benefits from free legal aid. These charges may also be included in an order to pay costs, in which case the party who loses the case will, in general, pay them.  

Further information

• General Council of the Judiciary
• Ministry of Justice

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Last update: 01-02-2007