First act of communication of the Court with legal persons who have not yet appeared in the proceedings. Royal Decree-Law 6/2023, of 19 December 2023, amending the Civil Procedure Law (hereinafter “LEC”).
Until 20 March 2024, the date of entry into force of the Royal Decree-Law, acts of communication with defendant legal persons who had not yet appeared at court and were not represented by a court attorney were carried out by sending such acts to the address that appeared in official registers or to the address of any director, manager or legal representative of the company, or president or member of the board of any association that is registered in any official register.
These acts produced full effects when they were correctly submitted, even if there was no record of receipt by their addressee.
If the act concerned such an important matter as the appearance in a proceeding or the personal intervention in certain procedural actions and there was no record of receipt by the interested party, the copy of the document or decision had to be delivered to the addressee, at the seat of the court or at his address, from which a document was drawn up to be signed by the official or court attorney and by the person who received the act. In the event that they did not wish to sign, they were advised that the decision was available to them at the Court and the act would be deemed valid.
With the reform introduced in article 155 of the LEC, when a party (which is not yet legally represented, and has not appeared in court) is obliged to interact electronically with the Administration of Justice, the act of communication can only be carried out by electronic means.
According to article 273, legal persons and entities without legal personality are obligated parties, who must submit their writs electronically, indicating the type and number of the file, year, referencing the documents accompanied by an electronic index and incorporating, in their initial writ, an electronic signature, in accordance with the Law regulating the use of technology in the Administration of Justice.
If the act of communication is intended for the first summons, subpoena or personal intervention and three days have elapsed without the interested party accessing its content, it will be published on the Sole Bulletin Board and with such publication it will be deemed valid.
A copy of the decision may only be delivered if the obliged party appears at the seat of the court, which shall be officially recorded.
This new regulation raises many doubts and insecurities, for example how the summons to foreign companies, particularly non-EU companies, will be carried out.
If nowadays an act as simple as a power of attorney in favour of a court attorney through the Electronic Judicial Office already generates problems for many Spanish companies that are more or less familiar with the Administration of Justice, it begs the question of what is going to happen when it comes to summoning foreign companies to appear in the procedure if they do not have an electronic signature, or a recognised electronic signature and are also not familiar with the Spanish judicial system.
Let us not forget that the communication of a first act such as the summons or subpoena can be the most relevant because, if it is not carried out with all the procedural guarantees, it can leave a party defenceless as they cannot access the procedure in due time and form.
The Constitutional Court declared, in Judgment 138/2023, of 23 October 2023, that the fundamental right to effective judicial protection established in Article 24.1 of the Spanish Constitution had been violated, in a mortgage foreclosure proceeding in which the Court had ordered the practice of summons by electronic means through the electronic notification service at the address enabled by the National Mint and Stamp Factory. It also decreed null the proceedings and the retroaction of the procedure to the time prior to the summons, ordering that the summons be carried out in compliance with this fundamental right.
Given that the Explanatory Memorandum of the Royal Decree-Law indicates that effective judicial protection is the absolute priority and that procedural guarantees must always be respected , it is clear that the new Article 155.1 must be applied by the courts with the utmost caution in order to avoid the violation of the right to effective judicial protection and a situation of defencelessness.
Mireia Bosch
Vilá Abogados
For more information, please contact:
5 April 2024
