Issuing the writ of summons at the domicile of the defendant, the new duty regarding legal persons

AUTOR: Patrica Ayala

DATUM: 04/06/2019

The Ministry of Justice reinforces the duty to guarantee effective judicial protection without legal defencelessness by establishing the obligation to send communications to the address of the defendant, instead of using telematic communications.

On May 29th, the Ministry of Justice transferred to the High Courts of Justice, the Spanish National High Court and the Supreme Court, the duty to summon sued companies and legal persons at their domicile, instead of employing judicial communications sent by the telematic channels provided by companies themselves to the Ministry of Finance.

With this decision, the Ministry of Justice aligns with the doctrine established by the Constitutional Court regarding effective judicial tutelage, a doctrine covered by the recent Constitutional Court Sentence 47/2019, issued on April 8th this year.

Specifically, this resolution admitted an appeal for protection filed by a company that, after having been notified of a conciliation act and the subsequent labour trial by telematic channels, did not manage to perceive said summons. As a consequence, the corporation could not appear at the referred procedures, and the claim filed by one of its employees was admitted.

The Constitutional Court, making use of its reiterated doctrine regarding effective judicial tutelage without legal defenselessness as in article 24.1 of the Constitution, establishes the link between procedural acts and the duty to avoid legal defenselessness of the parties.

This relation reinforces the idea of the effectiveness of communications not only as a warranty to access jurisdiction, but also as an expression of the party's right to appeal, which prevents the defendant from being in a situation of legal defenselessness expressly prohibited by constitutional mandate. 

In this sense, the Ministry of Justice changes its stance with respect to the communication it previously issued in this regard, which imposed the obligation of procedural notifications by telematic means, so that any notification would be sent through the electronic channels provided by the companies, whereby the administrators have a period of 3 days to access said documentation. 

In conclusion, through this most recent communication, the Ministry of Justice seeks to ensure effective access for procedural parties in those cases where notice is issued to a legal person, as well as to guarantee both the reception of the summons and the availability of all the procedural rights to be held by the sued entity.