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Freshfields Risk & Compliance

| 2 minutes read

Good news for international defendants facing litigation in Spain? Three recent court decisions suggest so

Since the enactment of the 1978 Spanish Constitution, the Spanish Constitutional Court has steadily protected service of claims on the defendants as part of the human right to a fair process.  The peak of this protection was reached in Judgments 6/2019, 47/2019, 40/2020 and 50/2021, in which the Constitutional Court indicated that service of claims could not be achieved through e-mail communication to the e-mail address used for communications with the Spanish Tax Administration.

For those non-Spanish defendants being a party to Spanish proceedings, three recent judgments by the Constitutional Court have declared the lack of validity of some recourses favored by certain claimants and a limited number of Spanish courts in order to avoid the fulfilment of the requirements provided by EU Regulations on transfer of judicial documents (EU Regulation 2020/1784, since the 1st of July 2022, although the previous EU Regulation 1393/2007 was the one applicable at the time when service irregularities took place) as follows:

  • In Judgments 179/2021 and 7/2022, the Spanish Constitutional Courts declared that service of the claim made on a court representative (the Spanish “procurador”, who is the individual appointed by the party through a power of Attorney, and is in charge of representing the party before the courts, filing the applications prepared by the attorney and receiving the court decisions) on behalf of a non-Spanish Company, does not meet the requirements in Article 24 of the Spanish Constitution, even when such court representative was acting on behalf of said company in other civil proceedings before that, or any other, Spanish court.
  • In Judgment 91/2022, the Spanish Constitutional Court deals with the issue of service of a claim on a foreign defendant being made by delivery of the service documents to a Spanish company belonging to the same group of companies of the non-Spanish defendant, and declares that:
    • recent ECJ ruling of 6th October 2021 in case C-882/19 (Sumal) was not dealing with procedural issues pertaining to the service of claims, but rather on issues regarding the requirements under which liability arising from a Commission Decision in antitrust matters, could be extended to non-Addressees of said Decision;
    • by failing to try to serve the claim in the address of the defendant outside Spain (which was indicated in the claim), human rights of the defendant were breached; and
    • the rejection of service by the Spanish company in which service (by substitution) was attempted allows to consider that the defendant company was not aware of the existence of the case.  The failure to provide evidence on the relationship existing between the two companies, even if they belong to the same group of companies, does not allow to assume that the existence of the proceedings was known to the non-Spanish defendants.

The three judgments above continue to build on the enhanced protection which Spanish Constitution provides to defendants upon service of a claim in civil and commercial cases, although it will be critical for potential defendants to remain vigilant, especially when a claimant seeks to serve a Spanish claim on the domicile of a local company belonging to the same group.


litigation, antitrust litigation, class actions, product liability