It is becoming common nowadays to see lawyers from countries within the EU requiring the enforcement of sentences passed by tribunals in other EU countries. For example, if your debtor has moved to Spain, leaving no assets in his home country, you can still enforce the legal resolution in Spain. Another example is child custody after a divorce, when one of the parents moves to a foreign country with the children, breaking previous court orders in the original country.
The ‘enforcement of foreign judgments’ is the recognition and enforcement in one country of judgments rendered in another. The ‘recognition’ occurs when the tribunals accept a judicial decision made by the tribunals from another country and issue a court order in practically identical terms without a rehearing, to make the original judgment effective. For example, if the matter is regarding money and the debtor has assets in the recognizing country, the creditor has access to all the enforcement remedies as if the case had originated in the recognizing country.
In Spain, foreign judgments are recognized, based on bilateral or multilateral treaties or understandings. Regulation no. 44/2001 adopted by the European Community Council on the 22nd December 2000 removed barriers impeding the free enforcement of law and movement of judgements in civil and commercial matters throughout the European Union.
Denmark initially opted out, but ratified the agreement later on 1st July 2007. For most countries outside the European Union, Spain follows the Hague convention from 21st October 1976 (it came into force in Spain on 3 April 1997). Bilateral agreements regulate foreign judgments between Spain and the following countries: Colombia, Uruguay, Israel, Brazil, Mexico, China, Bulgaria, Morocco, Rumania, Thailand, El Salvador, Tunisia and Russia.
Spanish law requires the opposing party be notified of all judicial decisions prior to enforcement to allow the possibility for appeals or for reaching an agreement without the need for enforcing the judgment.
The Spanish Civil Procedure requires that all documents submitted to the Spanish court to be officially translated into Spanish by a sworn translator and endorsed with an apostille.
The procedure to execute foreign judgments can be initiated in various ways, including through the Spanish Ministry of justice, the Consulate, the court officers in the country of origin or through a lawyer in Spain. This last option is the safest and the most trouble free as someone will follow up your case personally and give you regular updates. The procedure starts with a request submitted by the accusing party stating a brief explanation of the facts and legal basis that support it, according to article 549 of the Spanish Civil Procedure Act, and the documents set out in article 550 should be attached: the Judgment, its translation into Spanish and the documents to prove that said judgment is firm and proof that the debtor has been notified. Once the designated competent Spanish court approves the foreign judgement the enforcement procedure can start.
In Spain the same court that recognises the foreign judgement is responsible for its enforcement (as stated in article 545 of the Spanish Civil procedure act). The details of the enforcement procedure will vary depending on the type of judgement. In case of judicial monetary claims, the Spanish court will grant a ten-day period in order for the accused to reject the execution due to reasons established in articles 556 and 559 of the Spanish Civil Procedure Act (prescription, payment or settlement, or lack of ability to pay). After this, the creditor will have f ive days to answer the debtor’s opposition. The Court will then deliver a final judgment ordering that the proceeding be continued and that the seized goods be handed over to the creditor or to dismiss the seizure that took place.
These procedures can be quite complex; therefore it is always best to seek the advice of a Spanish lawyer familiar with international laws and procedures.