The judgement of the Supreme Court settles the question about the accumulation and competence of two different proceedings. On one hand, the non-payment proceedings initiated against two limited liability companies, and on the other hand, the liability proceedings filed against the Managing Director of one of said companies. Taking into account that the competence to hear the non-payment action corresponds to the civil courts, and the competence for the liability proceedings against the Managing Director correspond to the mercantile courts, the question at hand is whether the possibility of the accumulation of procedures exists.
The Supreme Court arrived at the conclusion that the general rules do not in themselves cover a solution to the problem and proceeds to interpret the rules in the following way.
First of all, the Court understands that the accumulation of both proceedings is appropriate based upon the following reasons:
– A first ruling procedure relationship exists between both proceedings
– The budget for both proceedings is the same
– The purpose of both proceedings is the same
– The responsibility of the Managing Directors for the obligations of the company constitutes the debt of others.
Furthermore, if the possibility of accumulation is not admitted, the demand for the responsibility from the Managing Directors due to the non-fulfilment of company debts shall entail the formulation of two lawsuits, which would mean a disproportionate and unjustifiable procedural duplicity.
Once it is concluded that the accumulation is appropriate, the Supreme Court resolves the question regarding where the procedures should be accumulated.
Thus, according to the Supreme Court, the proceedings shall accumulate before the Mercantile Courts for different reasons. First of all, the prohibition of the accumulation of proceedings before a court lacking the competence to hear either of them allows for various exceptions. Furthermore, the proceedings regarding the liability of the Managing Director is more specific and therefore prevails before the force of attraction (vis attractiva) rule of article 45 of the Civil Procedure Act (which is of a more general nature). Finally, the proceedings are closely related given that they are based upon the same premise and both of them pursue the settlement of a non-payment.
The Supreme Court understands that this interpretation of the rule does not provoke defencelessness, and furthermore produces a minimum alteration in the system of distribution of competence.
In spite of this conclusion, in the specific case studied in the judgement, the Court did not grant the accumulation of the proceedings before the Mercantile Courts, given that the lawsuit had been filed before such Courts had been created and therefore, temporarily, in this case, it was not appropriate, without prejudice to the interpretation given to the regulations.
However, the consequences of this interpretation cannot be ignored. When a lawsuit is filed against a company and against its Managing Director for non-payment on the part of the former, the proceedings shall accumulate before the Mercantile Courts, lending more agility to the judicial processes.
Vilá Abogados
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7 de febrero de 2013
