Spanish lawsuits in the European Union. The danger of international mail.

Autores: Rafael San Bruno Casuso y Ana Saldaña Manglano

Fecha: 30.10.2018

Spanish courts often use international mail as a means of transmitting, notifying or transferring lawsuits to foreign companies. This article deals with the obligation to translate documents as well as to inform about the possibility to refuse to accept them, in case a translation is not attached.

In our usual professional practice it is not uncommon to advise clients that are being sued under the Spanish Courts, but summoned in their respective addresses outside of Spain.

In these cases, they must affront an important problem when they receive the lawsuit and its documentation by international mail, but without a translation into their languages, and without any form or standard certificate.

Sometimes, these defendants do not know what they are being asked for, or what type of proceeding they have to respond, or what their corresponding rights of defense are (deadlines, legal representation, etc.). As a result, they are not able to defend themselves properly, considering the danger of the formal and preclusive deadlines for defense in Spanish procedural law, and moreover, the waste of time and money in order to translate the documents.

The possibility of being summed by international mail is established in Article 14 of Regulation (EU) 1393/2007, of The European Parliament and of The Council, “on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters”, as an alternative to the so-called official system, which is carried out through a transmitting agency and a receiving agency, or a single agency responsible for both functions.

In this official system, set out in Articles 4 to 11 under such Regulation, the requirements to translate documents into a language that the addressee understands, or into the official language of the Member State, with the possibility for the addressee of refusing notification if the documents are not translated are established. In order to allow this option, a form is established for notifying the return of the application and the document. There is also a second form under Annex II of the Regulation containing information for the addressee on their right to refuse to accept a document.

Nevertheless, the international mail option, which we could name as the unofficial system, has no translation costs for the claimant, is faster and not certified, and because of this, is being used in more and more judicial proceedings.

The question analyzed here is whether to this alternative mail, the need to provide a translation and to send the mentioned form, with the possibility of rejecting the documents by the respondent should also apply.

What do the European precedents say in this regard?

In its judgment dated March 2nd, 2017, in the proceeding between Andrew Marcus Henderson (Ireland) and Novo Banco SA (Portugal), the European Court of Justice stated that the compulsory and systematic use of the standard form set out in Annex II of the Regulation also applies to methods of notification and transfer by international mail.

Therefore, when judicial documents are served by international mail, they must also be accompanied by Annex II, which informs of the possibility of refusal to accept untranslated documents. It was also established that the communication of this form constitutes a substantial form requirement, the purpose of which is to safeguard the right of defense of the addressee of the document, implying the duty to translate the documents.

The Judgment concludes that, within the period determined by national law, the necessary actions must be taken in order to ask for the nullity of the notification or to carry out the appropriate procedures to request the translation of the documents from the courts of origin within the established period. 

What do the Spanish precedents say in this regard?

Likewise, Spanish legislation includes Law 29/2015, on International Legal Cooperation, which is also applicable to States beyond the European Union. Under its Article 25.1, it is established that the documents to be served abroad must be accompanied by a translation into the official language of the State of destination or into a language that the addressee understands.

However, the way in which the Spanish Courts have pronounced on the matter, especially on the requirement of defenselessness due to lack of translation, is not uniform and objective; for example, there are sentences that confirm, as we hereby defend, the nullity of the notification (decision of the Provincial Court of Barcelona dated 22/01/2013); but on the other hand there are recent resolutions that refuse the defendant’s allegations because of their previous Spanish language knowledge (decision of the Provincial Court of Barcelona dated 11/04/2018), or even some judgments (for instance, the Judgment of the Provincial Court of Santa Cruz de Tenerife dated 19/01/2018), which interprets the Regulation in the sense of distinguishing between the “official” system in whose case the form must be included, and the “unofficial” system with the transmission though international mail, without any type of form or requirement.

In our opinion, the conclusions of such recent decisions are certainly arguable, because it seems clear that European case law, and even Spanish law, require the translation into the destination language including its corresponding standard form. And these requirements are legally binding in Spain and must therefore be guaranteed by the Spanish Courts.

What could be alleged?

In conclusion, we have no doubts that the defendant has the right to reject the international mail received due to the lack of the standard form and/or the translation of the documents.

In case of involuntary receipt (for example, the envelope is delivered with the rest of the correspondence), it is necessary to communicate such immediately to the Spanish Court and, additionally, to exercise procedural skills in order to ask the Court for the translation of the documents and the suspension of the deadline.

If such defense and individualized arguments are not accurately alleged, the suspension might be refused by the Court, given the particular way in which some Spanish Courts interpret the European Regulation.