BOE no. 11 of 12 January 2024 publishes the validation agreement of Real Decreto Ley 6/2023, which approves urgent measures for the implementation of the Recovery, Transformation and Resilience Plan for the public service of justice, civil service, local government and patronage, which contains a substantial reform of Law 1/2000 on Civil Procedure.
In general terms, procedural legislation is adapted to the processing, registration and conservation of documents by electronic means, including the system of notifications; and procedural safeguards are introduced for consumers and users affected by contracts with unfair terms. In the latter cases, from the passive point of view, limits and restrictions are established on the enforceability of extrajudicial titles; and from the active point of view, the extension of the effects of “witness proceedings” and even of proceedings in which there has been individualisation of interests, to interested consumers who have not been parties to said proceedings, is regulated.
In the following recapitulation, the main procedural changes affecting economic lawsuits have been listed – without claiming to be exhaustive.
Pre-judicial
The new Article 43a introduces the regulation of a reference for a preliminary ruling before the CJEU by a court of any EU Member State. The court that refers the question for a preliminary ruling shall order a stay of the proceedings. No appeal may be lodged against the order staying the proceedings.
Joinder of actions and proceedings.
Articles 73 and 77 allow, as an exception, the accumulation of the liquidation of the matrimonial property regime and the division of the inheritance in the event of the dissolution of the matrimonial property regime in the event of the death of one or both spouses.
Legal proceedings
Article 129a gives preference to telematic presence in procedural acts, except when parties, experts or witnesses are to be examined. In this case they must appear in person, unless they reside in a different municipality; or unless the court orders otherwise. The telematic intervention shall be carried out from a “secure access point”.
As for the “secure access point”, it should be understood as that which complies with the requirements established by RDL 6/2023. However, as provided for in Article 137, if the Court considers it appropriate in view of the circumstances, telematic interventions may be carried out from any place, provided that the identity of the intervener can be guaranteed, and in accordance with what is determined by regulation.
According to Article 270, it shall be possible to produce documents in the course of court proceedings by videoconference, where technically possible.
In any case, the use of videoconferencing must be requested sufficiently in advance and, in any case, ten days before the date set for the corresponding action.
Article 162 provides that communications sent by electronic means to the parties or their representatives – except for the notification services organised by the Bar Associations – shall be deemed to have been made when three (3) days have elapsed without the addressee accessing their content. This could allow, in certain highly foreseeable cases, three days to be added to the procedural time limit for replying to a pleading or completing the process ordered.
Article 164 implements the edictal communication by means of the “single judicial notice board”.
Article 337 limits the time limit for the production of expert opinions in oral proceedings when the parties have not been able to produce them with their pleadings. In such a case, they must provide the expert opinions they intend to use within thirty (30) days from the filing of the pleadings.
Ordinary Trial and Verbal Trial
Articles 249 and 250 modify the scope of the ordinary and verbal trials, respectively, highlighting that the dividing amount between the two is raised to 15,000.00 Euros.
Articles 414.2 and 432 respectively state that, in the ordinary trial procedure, the preliminary hearing and the trial shall be held by electronic means at the request of any party or when the court so decides ex officio; and provided that the requirements established by Article 137a are met.
Procedures Witness
Article 438 bis regulates the so-called “Witness Proceedings” referring to general contracting conditions – which, according to Article 250.1.14º will be heard in oral proceedings. Thus, when the LAJ becomes aware that a claim filed “includes claims that are the subject of previous proceedings brought by other litigants, that it is not necessary to carry out a control of the transparency of the clause or to assess the existence of defects in the contracting party’s consent and that the general contracting conditions in question have substantial identity”, he will inform the Court, which will issue an order agreeing the suspension of the proceedings until a final judgment is handed down in the witness proceedings, which will be dealt with preferentially. The judgment in the witness proceedings shall, where appropriate, extend its effects to the litigants.
Appeal
Article 458 provides that the appeal may be lodged directly with the Audiencia Provincial, which will decide on its admissibility. The appellee may, within ten (10) days, lodge with the Audiencia Provincial a writ of opposition to the appeal or, as the case may be, a challenge to the decision appealed against in so far as it is unfavourable to him.
Appeal in cassation
Art. 477.1 provides that, in addition to appeals against judgments handed down at second instance by collegiate bodies, and decisions handed down at second instance on the recognition and enforcement of foreign judgments, appeals in cassation may also be lodged against judgments handed down by the Provincial Courts in appeals against decisions that exhaust administrative remedies handed down on industrial property matters by the Spanish Patent and Trademark Office.
Enforcement
Consistent with the provisions of Article 438, Article 519 provides for the possibility of enforcing against any interested party a judgment in a witness procedure that recognises an individualised legal situation identical to that of the interested party, provided that: (a) it has become final at second instance (b) the legal situations are identical, (c) neither the transparency of the term nor the consent of the party need be assessed, (d) the general contract term is substantially identical, and (e) the court before which enforcement of the judgment is sought was also competent to hear the interested party’s claim.
If the defendant does not make the payment into the account designated by the applicant within the period established for voluntary compliance with the judgment (20 days), the interested party may request the enforcement of the order granting the extension of effects, for which purpose the testimony of the order granting the extension of effects shall serve as an enforceable title.
Articles 551 and 552 provide that enforcement of an extrajudicial title against a consumer shall not be ordered when the court finds that the title contains unfair terms. In such a case the parties shall be given a hearing for fifteen (15) days.
Article 635 provides that, as a general rule, the realisation of unlisted company shares or unlisted shares shall be carried out by judicial auction.
Provisional enforcement
Reasonably, since the application for provisional enforcement cannot be anticipated by the defendant, Art. 527.5 provides that “The costs of the provisional enforcement proceedings shall not be borne by the defendant provided that he has complied with the provisions of the order granting the enforcement within twenty days of being notified of it”.
Order for payment proceedings
Article 814 states that the LAJ will check whether, within the framework of an order for payment procedure directed against a consumer or user, there are clauses that could be classified as abusive. In such a case, the Court will propose to the businessman or professional that the order for payment be made by subtracting from the total amount requested, the part of that amount that was based on the unfair term, this amount being considered as the object of waiver.
The employer or professional shall have ten (10) days to make a decision. In the event of refusal, the order for payment proceedings shall be discontinued and the claimant shall be obliged to initiate the appropriate declaratory proceedings.