Enforcement of judgments from the United Kingdom in civil and commercial matters in Spain

Posted: 01/02/2024

Prior to the departure of the United Kingdom from the European Union, the enforcement of UK judgments in Spain was exclusively governed by the so-called ‘European Regime’ provided for in Regulation (EU) No. 1215/2012 (known as ‘Brussels I bis’). This regulation provides a simplified enforcement regime that applies in the EU, without requiring a prior ‘exequatur’ procedure for the foreign judgments to be enforced in Spain.

The UK officially left the EU on 31 January 2020. Since that date and until 31 December 2020 there was a transitional period when the ‘European Regime’ still applied.

After that transitional period, the enforcement regime is different depending on the date on which the underlying judicial proceedings, from which the judgment’s recognition and enforcement is sought in Spain, originated.

Proceedings instituted in the United Kingdom before December 31, 2020:

According to Article 67.2 of the 'Withdrawal Agreement’:

‘2. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements:

(a) Regulation (EU) No 1215/2012 shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period;’

That is, for proceedings instituted before December 31, 2020, the ‘European Regime’ of Regulation 1215/2012 continues to apply. These decisions do not require prior homologation or ‘exequatur’ to be enforced in Spain. Instead, the enforcement procedure can be directly initiated in Spain according to the Spanish internal procedural law without having to initiate any prior procedure for a declaration of enforceability.

To enforce a decision from the UK in Spain under the ‘European Regime’ of Regulation 1215/2012, the following will need to apply:

• the underlying proceedings must have been instituted before midnight CET December 31, 2020; and
• the judgment must be regarding a civil and commercial matter (excluding, for instance: customs or administrative matters, personal status, matrimonial matters, wills and succession, insolvency or arbitration). Separate regimes outside the scope of this article apply to these exceptions.

The judgment from the UK will be automatically recognised in Spain (Article 36 of Regulation 1215/2012) unless one of the exceptions in Article 45 applies.

The exceptions in Article 45 are very limited, as the aim of the regulation is to ensure the swift enforcement of judgments among the EU member states.

However, some significant exceptions are as follows:

• when the judgment is manifestly contrary to public policy;
• when the decision was issued in default of appearance if the defendant was not served with the document initiating the proceedings, or with an equivalent document in sufficient time, and in such a way as to enable him/her to prepare a defence, unless the defendant failed to challenge the judgment when it was possible to do so;
• when the judgment is irreconcilable with another judicial decision. This exception may be applied when a judicial decision conflicts with a previous Spanish judicial decision between the same parties, or a previous judicial decision in a third country with the same cause of action and between the same parties;
• when the judicial decision conflicts with certain sections of the regulation relating to insurance, consumer and labour law; or
• when the UK court accepted jurisdiction in conflict with the section of the regulation relating to rights in rem of immovable property.

If the above requirements stipulated by the regulation are met, the enforcing party must:

• obtain a certificate from the UK court, in the standard form set out in Annex 1 to the regulation;
• serve the judgment, certificate and translations on the debtor; and
• enforce the judgment as if it were a Spanish judgment.

Debtors who wish to challenge enforcement should make an application to the court without delay together with a request to suspend enforcement of the judgment.

Proceedings instituted in the United Kingdom after December 31, 2020:

The ‘Withdrawal Agreement’ determined that as of January 1, 2021, the UK would no longer be considered a party to the international treaties signed by the EU. Therefore, the Lugano Convention is not currently applicable in Spain to the recognition and enforcement of judgments rendered in the UK in civil and commercial matters in proceedings instituted after December 31, 2020, as the EU has denied the UK’s accession to that convention after the latter’s request.

Therefore, the recognition and enforcement in Spain of judgments rendered in the UK is governed by Spanish domestic legislation, that regulates the recognition and enforcement of foreign judgements in accordance with Law 29/2015 on International Judicial Cooperation in Civil Matters. Under this law, the enforcement in Spain of foreign judgments (including those from the UK) requires a prior procedure of ‘exequatur’ of the judgment before initiating any enforcement procedure. After the ‘exequatur’ procedure, the UK judgment may be enforced and enforcement measures (such as seizures) may be requested under Spanish internal procedural legislation.

The UK ratified the Hague Convention of June 30, 2005 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which has been applicable since January 1, 2021. It has signed but not yet ratified the 2019 Hague Judgments Convention.

The Hague Convention of 2005 refers to the internal regulations of the state in which recognition and enforcement is sought, so in Spain, it will be necessary to again refer to Law 29/2015 on International Judicial Cooperation in Civil Matters.

Therefore, the recognition and enforcement of judgments issued in the UK under a jurisdiction agreement as referred to in the Hague Convention of 2005 will also require completing the ‘exequatur’ procedure before the judgment can be enforced. The requirements for enforcement under the Hague Convention are as follows:

• there must be an agreement on jurisdiction between the parties and the UK;
• they must be civil and commercial matters, excluding, for example, family law, wills and succession, insolvency, arbitration, consumer rights, labour law, some insurance matters, a significant number of intellectual property matters, real estate property rights, and corporate law matters; and
• they must be judgments on the merits (final judgments, default judgments, non-monetary judgments, but they cannot be interim or provisional measures).

Regarding the recognition and enforcement procedure, it should be noted that the convention requires that, to be able to enforce a judgment that meets the conditions for its recognition (essentially, having been issued by the court of a member state to which the parties have submitted in accordance with a valid submission agreement concluded after the entry into force of the 2005 Hague Convention in the state of origin), the recognition or ‘exequatur’ procedure must be followed.

Article 9 of the Hague Convention of 2005 establishes various circumstances in which recognition or enforcement may be denied, including:

• the agreement was null and void under the law of the UK court;
• the defendant was given insufficient notice of the original proceedings;
• the judgment was obtained by fraud (this is a rare occurrence);
• the judgment is contrary to English public policy; or
• the judgment is inconsistent with another judgment between the same parties or with an earlier judgment in a third country.

When the Hague Convention of 2005 is applied, the creditor must request the Spanish court to register the decision without prior notice to the debtor. In accordance with Article 13 of the regulation, the creditor must provide the judicial body with:

• a certified copy of the judgment;
• a copy of the exclusive jurisdiction agreement;
• in the case of a default judgment, a document proving that the defaulting party was notified of the document which instituted the proceedings;
• any documents necessary to establish that the judgment has effect or is enforceable in Spain, or to verify that the conditions for enforcement have been met; and
• Spanish translations of all of the above.

Regarding the recognition procedure, Article 14 establishes that it will be governed by the procedural law of the state of destination, which in the case of Spain will be Law 29/2015 on International Judicial Cooperation in Civil Matters.

The exequatur procedure is initiated by a lawsuit that must comply with the requirements set forth in Article 399 of Law 1/2000 of January 7 on Civil Procedure (LEC) regarding an ordinary judgment lawsuit, and must be accompanied by:

• the original or authenticated copy of the foreign decision, duly legalized or apostilled;
• in the event that the decision was made in absentia, the document proving that the defendant received the summons;
• any evidence that the decision is final and that, where appropriate, it has executive force in the state of origin; and
• the appropriate translations, in accordance with Article 144 of the LEC.

After this lawsuit, the court must give notice to the defendant to file their opposition within a period of 30 days. Opposition can only be based on the failure to comply with any of the requirements required by Law 29/2015 on International Judicial Cooperation in Civil Matters to grant the ‘exequatur’, such as falsehood or lack of finality of the foreign judgment or in the causes for refusal of recognition provided for in Article 46:

• judgment contrary to Spanish public policy;
• there is a manifest infringement of the rights of defence of any of the parties;
• the foreign judgment contains rulings on a matter whose jurisdiction is exclusively reserved to Spanish judicial bodies or in other matters where the jurisdiction of the originating judge is based on an exorbitant forum (without a reasonable connection);
• the foreign judgement is irreconcilable with a decision made in Spain;
• the foreign judgement is irreconcilable with a decision previously made in another state, when the latter decision is capable of recognition in Spain; or
• there is a proceeding in Spain between the same parties and with the same object that has been initiated prior to the foreign proceeding.

In addition, the public prosecutor must necessarily intervene in the exequatur procedure, to whom all the proceedings must be forwarded for evaluation.

Conclusion

The execution of UK decisions in Spain has become more complicated (more time-consuming and costly) since Brexit due to the absence of the automatic system of the ‘European Regime’ provided for in Brussels I bis, which was simpler, direct and efficient. However, nothing will prevent UK judgments from being recognised in the EU and in Spain, provided that the requirements mentioned above are met.

Likewise, it is not to be ruled out that in the future, the EU and the UK may finally reach agreements to guarantee the possibility of recognising and executing decisions reciprocally, to ensure a simple and efficient process.

Until then, parties seeking to enforce a UK court decision in Spain should seek good local advice at an early stage with enough experience in international law and dispute resolution proceedings under Spanish law to make a correct request in the Spanish courts for the ‘exequatur’ of the UK judgment and its enforcement in Spain.

For a version of this article in Spanish, please see here.

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