21 OCT 2019 - 13:49 CET

The workshop "Circulation and enforcement of foreign decisions involving pecuniary debts: the Spanish experience" was held at the Board Room of the School of Law (Complutense University) on the 10th of October 2019:

OPENING ACT

Opening act. Speakers: Dr.Ricardo Alonso García, Dean of the UCM School of Law, and Dr.Carmen Otero García-Castrillón, principal researcher of the IC2BE project in Spain.

Speaker: Dr. Carmen Otero García-Castrillón, Professor of Private International Law at Complutense University of Madrid (UCM):

- The main results of the research carried out by the IC2BE project research team in Spain are presented.

- It is concluded that, in Spain, there is a general lack of knowledge of the European law instruments that regulate the cross-border payment of debts in the European Union. This lack of knowledge is common among legal operators (judges, lawyers) and consumers.

- The opening of a database of national and European case law (CJEU) that includes judgements published between 2005 and 2019 is announced to the public. Each decision includes an English language summary. Complete text of the decisions (in Spanish) will be uploaded as soon as the technology allows it.

INSTITUTIONAL PERSPECTIVE: ADAPTATION OF SPANISH LAW AND MANAGEMENT OF INTRACOMUNITY RELATIONSHIPS

 Speaker: Mr. Jacobo Fernández Álvarez (first, right).

Speaker: Mr. Jacobo Fernández Álvarez, Deputy General Director of Legislative Policy of the Spanish Ministry of Justice:

- The paper “The adaptation of national procedural law to the rules of the European Union; the Regulation on the European account preservation order procedure” is presented.

- The mechanisms adopted by the Spanish legislator to adapt Spanish law to European law are explained, as well as the main problems encountered.

- The legislative changes introduced finally manage to remove the main obstacle for the enforcement of a European account preservation order in Spain:  the cooperation of public and private entities (banks) in the provision of personal data.

Speaker: Mrs. Paula Mongé Royo.

Speaker: Mrs. Paula Mongé Royo, Deputy General Director of International Legal Cooperation of the Spanish Ministry of Justice:

- The paper “Circulation and enforcement of decisions: the role of international cooperation” is presented.

- The legislative route to determine the "competent national authority" in Spain referred to by the European account preservation Order is reported.

- The extension of powers of the General Directorate of Legal Cooperation of the Spanish Ministry of Justice allowed this body to be finally designated as the competent national authority in Spain to request information from public and private entities, in the context of cross-border cases processed by EU judges.

Speaker: Mr. Javier Forcada Miranda (left).

Speaker: Mr. Javier Forcada Miranda, International Relations Service of the Spanish General Council of the Judiciary (CGPJ):

- The paper “Circulation and enforcement of decisions; a view from the Spanish courts” is presented.

- The speaker reports the difficulties expressed by Spanish judges in understandingthe requests for international cooperation that come from the European Union.

- The European Judicial Network is going to undertake actions to improve the practical effectiveness of the European law instruments. Some difficulties regarding access to information and statistics are also reported.

QUESTIONS

Mr. Carlos Santaló, researcher and doctoral student, during question time.

Questions raised the issue of the means for sending the Annexes, in particular, Annex I, on the European Account Preservation Order and the experiences in finding the appropriate authorities in some EU Member states (i.e. Rumania).

As to the requests for information addressed to the General Sub-Directorate of International Cooperation of the Spanish Ministry of Justice (central authority), simple e-mails coming from EU member States’ courts are the general rule. However, the responses are send by post and only exceptionally through email.

In addition, the issue of costs was raised, particularly regarding the account information requests for the issuance of an account preservation order. In general terms, Spain charges no fee for information.

PRACTICAL PERSPECTIVE: CONSUMERS AND ENTERPRISES BEFORE CLAIMS AND THE PAYMENT OF DEBTS

Mr. Miguel Álvaro Artola Fernández (center).

Speaker: Mr. Miguel Álvaro Artola Fernández, judge President of section 3 of the Second Instance Court of Palma de Mallorca:

- The paper “The European account preservation order and the simplification of the cross-border payment of commercial debts in the European Union” is presented.

- The instruments that enable the processing of cases are listed, including the European Judicial Atlas. In Spain, the competent courts are commercial, labor and even criminal courts.

- It is reported that the European account preservation order Regulation also includes claims related to maintenance (family law). The speaker also recalls the usefulness of the forms in the interpretation of the Regulation. In this realm and taking into consideration the aim of the Regulation, he argues in favor of the possibility of requesting account information at any time of the procedure and, therefore, even when no court decision has been taken yet.

Speaker: Mr. Javier Casado Román.

Speaker: Mr. Javier Casado Román, Lawyer of the Spanish Administration of Justice. Spanish Ministry of Justice:

- The paper “Practical issues in the European order for payment procedure” is presented.

- The speaker informs about the options available for private individuals when starting a European order for payment procedure without legal assistance. These tools are a “Prontuary” (a guide aimed at citizens on the actions to be followed in this type of procedure), the E-Justice portal (which indicates the legislation in force and what forms must be completed) and the European judicial Atlas (that indicates the competent judicial authorities in each Member State).

- The practical problems that arise in Spain are enunciated: according to the European order for payment procedure, foreign legal entities (companies) cannot start this procedure in Spain electronically, they can only do so by written means. Likewise, invoices must be written in Spanish and the form must also be filled in that language.

Speaker: Dr. María José Lunas (center).

Speaker: Dr. María José Lunas, lawyer and Director of the law office Lunas & associated:

- The paper “A compared approach to the Regulations on international debt claims: interaction problems” is presented.

- It is admitted that lawyers are not always familiar with European law instruments. Neither are the Spanish courts, although the situation has improved in recent years.

- Some Member States have chosen to centralize the processing of European cases in a single judicial body. This has shorten the time spent processing those cases and has improved efficiency. However, in Spain, in 2015, the processing of a European order for payment case took an average of 8 months to resolve, while the European average was 1-2 weeks.

Speaker: Mrs. Vanesa Fernández Escudero (center).

Speaker: Mrs. Vanesa Fernández Escudero, lawyer and Director of Andersen Tax & Legal (Barcelona office):

- The paper “Challenges for consumers when using cross-border debt claim mechanisms” is presented.

- It is believed that the European law instruments should be improved to ensure a higher consumer protection.

- It is claimed that the European order for payment procedure excludes the accreditation of the debts, which sometimes constitutes an obstacle when controlling abusive clauses by the courts. This has led in Spain to the submission of two preliminary rulings before the CJEU for which conclusions of the Advocate general are expected. In both cases, the national court suspects that the claim formulated by a company against a consumer is based on an abusive clause.

 Speaker: Dr. Cecilia Rosende Villar (center).

Speaker: Dr. Cecilia Rosende Villar, lawyer and Principal Associate of Garrigues Litigation and Arbitration Department:

- The paper “Advantages of the European law instruments when claiming for cross-border debts” is presented.

- In the scope of the European enforcement order for uncontested claims Regulation, most of the cases processed deal with national decisions whose enforcement is requested in another Member State, because that is where the debtor´s assets are located.

- Despite the fact that the Brussels Ia Regulation has abolished former exequatur, the European enforcement order for uncontested claims Regulation still has practical utility, especially for the creditor. Not so much for the debtor, due to the scarce grounds for opposition available.

QUESTIONS AND DEBATE

Mr. Javier García Cachaza, postgraduate student, asking a question.

The issues raised during the questions and debate period touched upon the international character of the situations leading to the application of the Regulations, on the one hand, and the actions for dismissal, particularly regarding the account preservation order, on the other.

As to the international character of the situations, judges warned about the fraudulent use of the Regulations so that purely internal cases are presented as if they were international. This seems to be particularly the case in the European order for payments procedure, where first instance courts have suddenly received a surprisingly high number of cases presented by financial companies.

Dr. María Luisa Villamarín, Professor of Procedural Law at UCM, poses a question.

As to the actions for dismissal in the EAPO and the doubts raised over the Regulation’s silence, it seems clear that, on the basis of article 43, national law will cover every aspect not expressly regulated. Along this line, it is possible to claim against an excessive caution required by a judge in the context of this European procedure when the applicable national law allows it.

In addition, the disappearance of physical money was brought before the panelists as a possible means for the facilitation of cross-border payments. The viability of the new currency created by Facebook (Libra) was also discussed.

Workshop statistics:

Total number of participants enrolled in the workshop: 76

Total number of participants that attended the workshop: 52 (68,42%)

Composition of the attending audience according to their academic or professional occupation: students (73,07%); academics (13,46%); judges (7,69%); lawyers (5,76%). 

Satisfaction survey:

• How clear were the objectives of the event?: Very good: 76,19%; Good: 23,80%.
• Did the contents of the event meet your expectations?: Very good: 71,42%; Good: 23,80%; Neutral: 4,76%.
• How organized was the information presented?: Very good: 71,42%; Good: 23,80%; Neutral: 4,76%.
• Did the event improve your knowledge and/or your skills?: Very good: 52,38%; Good: 42,85%; Neutral: 4,76%.
• Were the location and the technical equipment appropriate to the event?: Very good: 66,66%; Good:  28,57%; Neutral: 4,76%.

Picture credits: Opening act and front page photograph by Lidia Moreno Blesa. Other pictures by Samia Benaissa Pedriza.