During a judicial proceeding it may be necessary to serve a document (in most cases, a lawsuit and a writ of summons) or a judgment on a person whose address is outside the country where the proceeding is taking place.
The service of Spanish judgments in civil and commercial matters in other Member States of the European Union is governed by Regulation 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (from now on, R1393,) which replaces Regulation 1348/2000, which in its turn was inspired by Hague Convention of 1965 on the same issue (we will deal with the Hague Convention in a future post).
In order to serve the document, the applicant must provide the address of the person or company to which it is addressed, since R1393 cannot be applied if such address is not known.
R1393 establishes a main service system, that of transmitting agencies (TA) and receiving agencies (RA), and various alternative means. In the main system, the applicant provides the TA – in Spain, the ‘Letrado de la Administración de Justicia’ of the court where the proceeding is taking place – with two documents: 1) the judgment to serve, which does not need to be legalized and 2) a request drawn up using the standard form set out in Annex I, which shall be completed in the official language of the Member State addressed. The TA sends both documents to the Member State addressed RA, which will handle the transmission, in principle, under the law of that State. When the formalities concerning the service of the document have been completed, a certificate of completion of those formalities shall be drawn up in the standard form set out in Annex I of R1393 and addressed to the TA.
R1393 regulates the following alternative means of service: transmission by consular or diplomatic channels as transmitting agencies or even to make the service itself (provided they do not use coercion and the Member State addressed has not objected to this second possibility), postal service and direct service by a competent authority of the Member State addressed following a request of an interested person. Among these, the most useful and recommended is postal service (by registered letter with acknowledgement of receipt), as in most countries it is faster than following the TA and RA system.
In both the TA and RA system and the alternative means R1393 establishes language requirements. The judgment and the other documents must be translated into a language which the addressee understands, or an official language of the Member State addressed or, if there are several official languages in that Member State, one of the official languages of the place where service is to be effected. This requirement is not to be overlooked, as the addressee can refuse the document due to lack of translation. As a consquence, even if parties have used in their dealings prior to the conflict a language which is not official in the place where service is to be effected, it is advisable to stick to one of the official languages to avoid an abusive refusal of service that might lead to a delay in the service.
Finally, where the document to be served is a writ of summons, R1393 provides mechanisms to ensure the defendant’s right to due process. Firstly, in principle the proceeding cannot continue until the court checks the writ of summons has been served by a valid method and delivery was effected in sufficent time to enable the defendant to defend. Secondly, when a judgment has been entered against a defendant who has not appeared in the proceeding, the judge shall have the power to relieve the defendant from the effects of the expiry of the time for appeal from the judgment if the following conditions are fulfilled: 1) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; 2) the defendant has disclosed a prima facie defence to the action on the merits; and 3) the application for relief has been filed within a reasonable time after the defendant had knowledge of the judgment, which in Spain is set at a maximum of one year.