Recognition and execution in Spain of a foreign judgment of pecuniary sentence.
Very briefly, we distinguish between judgments by courts in countries not being member states of the European Union and those issued by a Court in a member state of the European Union. We also distinguish between the process to obtain recognition of the foreign judgment which is regulated by international treaties or law and the execution of the judgment once it is recognized which is regulated by our national internal law.
An exequatur on judgments rendered by non-EU Courts can in principle only be obtained when a treaty exists between Spain and the country concerned. If there is no treaty the principle of reciprocity will be followed. On a subsidiary basis, the judgment must have been issued in the exercise of a personal action, it must not have been issued in default and it should not violate Spanish public order. It should also be in an authentic form and trustworthy in Spain.
Foreign judgments in Spain will not be open to provisional execution. The interested party can ask for the execution.
The Court of First Instance, with attendance by the executed party and the Public Prosecutor’s Office will or will not declare the exequatur. The decision by the first instance court can be appealed. The following documents have to be submitted to the court: certified authentic copy of the judgment accompanied by the Apostil in conformity with The Hague Convention, certificate of the official transcript that the judgment is final, certificate of notification of judgment to the defendant or that it has been issued in default, sworn translation in Spanish and a general power of attorney for lawsuits.
Execution of a judgment in Spain rendered by a EU member-state court is governed by Regulation (EC) 44/2001 of the Council, of 22 December 2000, on jurisdiction and the recognition and execution of judgments in civil and commercial matters. This regulation will be replaced as from 10 January 2015 by Regulation (EU) Nº 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction and the recognition and execution of judgments in civil and commercial matters. The new Regulation abolishes the exequatur and replaces it by the possibility of opposition and defence. Regulation (EC) 44/2001 applies to judgments in commercial and civil matters in general whether disputed or not, whilst Regulation 805/2004 for undisputed claims, which already abolished the requirement of exequatur only applies to judgments on undisputed monetary claims in civil and commercial matters, irrespective of the nature of the jurisdictional body. Regulation 805/2004 applies to enforceable resolutions, judicial transactions and public documents on liquid pecuniary claims.
It applies in all member states of the European Union apart from Denmark. The undisputed claim must be certified (ex parte) as a European executable instrument by the State of origin always provided the resolution is enforceable, that it concerns a credit that has not been disputed by the debtor, and provided that certain rules on notification have been observed. Enforcement of a European Title of Enforcement may be refused, under certain conditions, for instance when the executed party can establish that the enforcement of the decision is incompatible with a decision issued previously.