Before going into an evaluation of the legal framework of enforceable titles, it is convenient to define what is considered to be an enforceable title and what types of enforceable titles can be found.
The Spanish Legal Dictionary of the Royal Language Academy defines enforcement title as “document to which the Law expressly grants force enough to obtain from the Courts the compliance of the obligation integrated into its content”. This definition has been built upon an interpretation of the Spanish Code of Civil Procedure (henceforth, LEC), lacking a precise definition of its own, has established that “the enforcement action must be based on a title that is linked to execution”.
Spanish legal order assigns the enforcement of judgments to judges and courts, as a natural consequence of their task to issue judgments, in accordance with the laws and rules on jurisdiction (Article 117.3 of the Spanish Constitution 1978). Under the Spanish LEC, which regulates the enforcement procedure in civil matters, the judge is tasked with monitoring the proper implementation of the enforcement procedure (Articles 545, 551, 552 and the corresponding provisions).
It should be said that the enforcement titles can be judicial or extrajudicial, both types provided by Law. It should be borne in mind that only those documents that the legislator determines, according to a numerus clausus system, constitute enforceable titles.
The following list of enforcement titles is legally established in the Spanish legal order:
- Final conviction sentence (in Spanish, sentencia de condena firme).
- Arbitration award (laudos arbitrales).
- Mediation agreement (acuerdo de mediación), if raised to public deed.
- Judgments (resoluciones judiciales) that approve or homologue judicial transactions and that have achieved agreements during the procedure.
- First copies of public deeds (escrituras públicas). If it is a second copy, it must be given because of a court order.
- Commercial contract policies (pólizas de contratos mercantiles) signed by the parties and by a registered trade broker.
- Bearer or registered financial bonds (títulos al portador) representing past due obligations and coupons, also past due, of said bonds.
- The unexpired certificates (certificados no caducados) issued by the entities in charge of accounting records regarding the securities represented by book entries referred to in the Securities Market Law.
- Judicial decree (auto judicial) that establishes the maximum claimable amount under compensation during criminal procedures derived from the use of motor vehicles.
- Other procedure decisions and documents that are linked to execution by legal provision. E.g., judicial decrees when the defendant partially accepts the claim (art. 21.2 LEC); judicial decrees that decide on the challenge for excessive attorney’s fees (art. 246.3 LEC); or judicial decrees issued estimating the opposition to the precautionary measures adopted without the defendant’s hearing (art. 742 LEC)
So…. what is the legal framework?
According to Art. 39 Brussels I bis Regulation: “A judgment given in a Member State
which is enforceable in that Member State shall be enforceable in the other Member
States without any declaration of enforceability being required”.
However, the Art. 41 Brussels I bis Regulation provides: “Subject to the provisions of this Section, the procedure for the enforcement of judgments given in another Member State
shall be governed by the law of the Member State addressed. A judgment given in a
Member State which is enforceable in the Member State addressed shall be enforced there
under the same conditions as a judgment given in the Member State addressed”.
We can understand, therefore, that when a foreign enforcement title is recognised in our State, it will deploy the same effects as in its origin State, being enforceable by Spanish judicial authorities, whether in its original form or adapted, but maintaining its essential finality and effects. However, even if it becomes enforceable, it will need to go through the same procedure as a Spanish enforcement title, which means, the interested party must issue a petition for execution and will be attached to the same time-periods and expiration periods (art. 50.2 LCJI).
Our law firm is an expert on the subject in Spain, since we have specialised lawyers and we collaborate directly with the European Union’s Justice Programme (2014-2020), so we are continuously working with this type of issues.
Paula Turunen (Colaboradora)
Jesús Bores Lazo
Socio-Director
Boleo Legal
