In general, civil and commercial enforcement mean that, when an enforceable decision (such as a final judgment) is not complied with voluntarily by the offender, the claimant must apply for judicial enforcement in order to ensure that the decision is complied with. Thus, in order to recover a debt that the defendant has been ordered to pay but does not do so, the claimant (creditor) applies for judicial enforcement and obtains the recovery, for instance, by way of the attachment of the debtor’s current accounts or the debtor’s property that, once auctioned, allows the auction proceeds to pay the amount owed to the creditor.
Enforcement is part of the response to the mandate of the Spanish Constitution of 1978, which entrusts the Judges and the Courts with the task of both judging and enforcing their decisions (Articles 117 and 118 of the Constitution). Therefore, the parties to the proceedings are under an obligation to comply with judgments and other court decisions as well as to provide the cooperation required to enforce what has been decided. It is for the Judge to ensure that these requirements are met in an appropriate way.
Enforcing a court decision means complying with what has been ordered by the court, i.e. enforcing the full right gained by the party that won the litigation. This may involve the claimant (hereafter the ‘party seeking enforcement’) requesting the reimbursement of a sum of money, the right to have something done or not done, or that a recognised right be fulfilled by registration in the relevant Public Registry, depending on the order.
Enforcement may be final or provisional. In the latter case and under certain circumstances, a judgment that is not yet final is enforced in order to avoid the creditor being prejudiced during the interim period (i.e. over the duration of the procedural steps of the action against that decision and while the final judgment is issued) because of the delays inherent in the proceedings (Articles 524-537 of the Code of Civil Procedure - Ley de Enjuiciamiento Civil).
Spanish legislation assigns the enforcement of judgments to Judges and Courts, in accordance with the laws and rules on jurisdiction (Article 117(3) of the Spanish Constitution).
In line with the Constitution, under the Code of Civil Procedure (Law 1/2000, 7 January 2000, BOE No 7, 8 January 2000, as amended), which regulates the enforcement procedure in civil matters, the Judge is responsible for monitoring the proper implementation of the enforcement procedure (Articles 545, 551, 552 and the corresponding provisions). It is the Judge who, on the application of the party seeking enforcement, initiates the procedure by means of the ‘general enforcement order’ that will be issued once the enforcement order has been reviewed. The Judge will also issue a decision if the defendant (hereafter ‘the judgment debtor’) raises an objection to the enforcement and initiates the specific opposition procedure to enforcement that is set out below.
The Registrars (Letrados de la Administración de Justicia, previously called ‘Secretarios judiciales’ – Court Clerks) are responsible for determining and adopting specific enforcement measures (demands for payments, attachment of the judgment debtor’s goods, current accounts deductions, salaries, etc.). Once the ‘general enforcement order’ has been issued by the Judge, it is the Registrar who monitors the enforcement procedure and adopts the corresponding decisions, notwithstanding that in some cases an appeal may be lodged against those decisions before the Judge.
In general, it is necessary to have a final judgment or court decision, or any other instrument permitting enforcement (there are exceptions in which a decision is not yet final but enforceable, such as the provisional implementation of contested judgments, which is permissible under certain circumstances).
In accordance with the provisions of Article 517 of the Code of Civil Procedure concerning the enforcement procedure and the instruments permitting enforcement, the enforcement application must be based on an instrument which is enforceable. Only the following instruments are enforceable:
A protest of securities forgery formulated during the matching process will not prevent the enforcement order from being issued if the items match, without prejudice to the subsequent objection to enforcement that the debtor may make, arguing that the security is forged.
The certificates referred to in the previous paragraph do not expire once enforcement has been sought and ordered.
The application for enforcement must be made to the Judge of the Court of First Instance (Tribunal de Primera Instancia) which handed down the judgment or the decision to be enforced. However, if the enforceable instrument is not a judgment, i.e. if it does not result from a court decision or from a decision issued by the Registrar attached to the Court (such as in the case of authenticated public documents with notarial intervention that are enforceable), there are special rules for assigning jurisdiction to a Court, depending on various links to the case. The most common assignment criterion is the residence of the defendant. The party seeking enforcement and the judgment debtor must be advised by a barrister and represented by a solicitor, except in the case of enforcement of decisions issued in proceedings in which the intervention of said legal professionals is not mandatory.
For the rest, the procedure is set out in Articles 548 et seq. of the Code of Civil Procedure; it should be noted that the enforcement order will be issued only at the request of one of the parties and will be in the form an application, as discussed below. Once the enforcement application has been submitted to the Court, and provided that the procedural rules and requirements are fulfilled, the Court draws up the ‘general enforcement order’. After the order has been issued by the Judge, the Registrar issues a decree containing the appropriate specific enforcement measures, as well as the tracing and investigation measures relating to the judgment debtor’s assets that appear appropriate for the enforcement.
The above-mentioned order and decree, along with a copy of the enforcement application, are notified simultaneously to the judgment debtor, notwithstanding that certain measures may be adopted in order to prevent the creditor from possible harm.
The judgment debtor may object to the enforcement on specific grounds, either substantive (e.g. payment of the debt) or procedural (e.g. if there are errors in the enforcement), in accordance with Article 556 et seq. of the Code of Civil Procedure. In this case, an adversary procedure is initiated, permitting evidence to be examined, which concludes with the issue of an order maintaining the enforcement order or invalidating it in whole or in part. This decision is subject to appeal.
As stated earlier, an application for enforcement must be made at the request of one of the parties by lodging the claim containing the enforcement application. The enforcement application must contain the instrument on which enforcement is based, state the enforcement sought from the Court, the assets of the judgment debtor that can be seized, the tracing and investigation measures to identify the debtor’s assets, the person or persons against whom enforcement is to be carried out, identifying them and their circumstances. If the enforcement instrument is a decision from the Registrar or a judgment or decision from the Court responsible for the enforcement, the enforcement application can be limited to the application for the enforcement order to be issued, identifying the judgment or decision to be enforced (Article 549 of the Code of Civil Procedure). In other cases, the application for enforcement must be submitted with the documents on which enforcement is based (listed in Article 550 of the Code of Civil Procedure). If the enforcement application meets the above requirements and if the instrument presented is one that allows enforcement to be ordered, enforcement will be ordered by the Judge or by decree from the Registrar, who will determine – in the case of a monetary enforcement – the amount constituting the principal amount of the enforcement, along with the amount provisionally fixed for interests and costs, without prejudice to its subsequent settlement and adjustment, and must always identify the persons concerned and the enforcement measures to be adopted.
In any case, and without prejudice to certain unattachable assets referred to below, it should always be stressed that the enforcement measures must be in proportion to the amount for which enforcement is granted, so that if they are excessive the Court can order a reduction. Additionally, if they are insufficient, the party seeking enforcement can apply for them to be complemented by broadening or increasing the measures to be adopted. Where the party seeking enforcement does not know what assets are owned by the judgment debtor, the Court may be asked to make enquiries that are carried out by the Registrar, either directly from the Court or by submitting requests to the competent authorities. However, there is a series of scales or limitations to attachments and garnishments of wages and salaries that are listed below. Enforcement arising from an order to pay maintenance (set out in either a maintenance proceeding between relatives or in a family proceeding relating to maintenance payments owed to children) is an exception, as in these cases enforcement is not subject to the statutory scales; instead, the Court determines the amount that can be seized.
With regard to unattachable assets, Articles 604 et seq. of the Code of Civil Procedure state the following (references to the ‘Court Clerk’ should be read as references to the Registrar):
Fully unattachable assets. Under no circumstances may the following assets be seized:
No 1 Assets that have been declared inalienable.
No 2 Ancillary rights that cannot be alienated separately from the main right.
No 3 Assets that, in themselves, have no value.
No 4 Assets expressly declared unattachable by any legal provision.
Judgment debtor’s unattachable assets. The following items are also unattachable:
No 1 Furniture and household items, as well as the clothes of the party against whom enforcement is sought and his family that cannot be considered superfluous. In general, items such as food, fuel and others which, in the opinion of the court, are essential so that the judgment debtor and their dependents can live with reasonable dignity.
No 2 The books and instruments needed by the judgment debtor to exercise their profession, art or trade, where their value is not proportional to the amount of the debt claimed.
No 3 Sacred items and items used in the practice of legally registered religions.
No 4 Amounts expressly declared unattachable by law.
No 5 Assets and amounts declared unattachable by Treaties ratified by Spain.
With regard to the seizure of wages and pensions, the Code of Civil Procedure lays down the following precautions:
1) A salary, wage, pension, remuneration or its equivalent not exceeding the amount of the minimum wage (this is set annually by the Government) may not be seized.
2) Salaries, wages, remuneration or pensions that are higher than the minimum wage may be seized according to this scale:
No 1 For the first additional amount up to the amount equivalent to twice the minimum wage, 30 %.
No 2 For the additional amount up to the amount equivalent to three times the minimum wage, 50 %.
No 3 For the additional amount up to the amount equivalent to four times the minimum wage, 60 %.
No 4 For the additional amount up to the amount equivalent to five times the minimum wage, 75 %.
No 5 For any amount that exceeds the above amount, 90 %.
3) If the party against whom enforcement is sought receives more than one salary or wage, all of them will be added together and the unattachable part deducted once only. Likewise, the salaries, wages, pensions, remuneration or equivalent of the spouses will be added together unless there is separation of property for the spouses, evidence of which must be provided to the Court Clerk.
4) If the party against whom enforcement is sought has dependents, the Court Clerk may reduce by between 10 % and 15 % the percentages laid down in Nos 1, 2, 3 and 4 of Article 607(2) of the Code of Civil Procedure.
5) If the salaries, wages, pensions or remuneration were encumbered with permanent or temporary deductions of a public nature pursuant to tax or social security legislation, the net amount received by the judgment debtor after those deductions will be the amount used as the basis for determining the amount to be seized.
6) The above paragraphs of this Article also apply to income from self-employed professional and commercial activities.
7) The amounts seized in accordance with this provision may be transferred directly to the party seeking enforcement, into an account previously designated by that party, if approval is granted by the Court Clerk responsible for the enforcement.
In that case, both the person or body carrying out the attachment and subsequent transfer, as well as the party seeking enforcement, must inform the Court Clerk every three months of the amounts sent and received, respectively, with the exception of any claims that may be lodged by the party against whom enforcement is sought, either because they consider the debt to be fully repaid, therefore invalidating the seizure, or because the attachments and transfers were not being carried out as stipulated by the Court Clerk.
The order issued by the Court Clerk allowing direct transfer may be challenged by bringing a direct appeal for review before the court.
In the case of immovable property or other assets that can be registered, the court may, at the request of the party seeking enforcement, order a preventive attachment entry to be made in the corresponding public register (usually the Property Register, which is the register for immovable property) in order to guarantee the subsequent enforcement.
In other cases, the following type of measures may be granted:
- Cash: confiscation.
- Current accounts: preservation order to the bank.
- Wages: retention order to the payer.
- Interest, proceeds and revenue: withholding by the payer, court-supervised administration or payment into court.
- Securities and financial instruments: withholding of interest at source, notification to the stock exchange or secondary market regulator (if the securities are listed on a public market) and notification to the issuing company.
Other movable property: confiscation.
In addition, with a view to ensuring that enforcement takes place, all persons and public and private bodies are required to cooperate with enforcement measures (with a warning that they may incur a fine or even be held in contempt of court if they fail to comply with the requirement). This means that they must provide the information required of them or adopt the guarantee measures in question, and they must hand over to the Court any documents and data in their possession, with no limitations other than those arising from the respect for fundamental rights or limits which are expressly laid down by law in certain cases.
Enforcement measures have no set duration; they remain in force until enforcement is complete. With regard to these measures, the party seeking enforcement must apply for the relevant enforcement in each case. For instance, an auction will be requested in the case of the seizure of movable or immovable property. The payment to the party seeking enforcement will be made with the money obtained from the auction. In other cases, for instance when the order consists of delivering a property to the party seeking enforcement (such as eviction for failure to pay rent), the enforcement measures will consist of returning the possession of the property to the party seeking enforcement, once the tenant in breach of contract has been evicted from the property.
It is not possible to appeal against the instrument granting enforcement. However, the judgment debtor may object once the enforcement has been notified. In that case, the above‑mentioned objection proceeding will be held. The objection may be on substantive grounds or on the basis of formal defects. These grounds of objection vary according to the instrument to be enforced (as provided in Article 556 et seq. of the Code of Civil Procedure, depending on whether it is a procedural decision from the Judge or the Registrar, an arbitration decision or a mediation agreement; maximum penalty instruments ordered in criminal proceedings relating to traffic accidents; instruments referred to in Nos 4, 5, 6 and 7 of Article 517 of the Code of Civil Procedure, as well as other enforceable documents referred to in No 9 of Article 517(2). An objection based on excessive claim and an objection based on formal defects are governed by Articles 558 and 559 respectively of the Code of Civil Procedure). It should be noted that the Court may have previously raised some of these grounds of its own motion (if the Court finds any of the clauses included in an enforcement order consisting of authenticated public documents, instruments or certificates may be unfair, it is required to act ex officio by hearing the parties on the matter and issuing a ruling thereafter). The parties may appeal against the order issued by the Court of First Instance in response to the grounds for objection. The appeal will be heard by the relevant Provincial Court (Audiencia provincial).
There is the possibility that the enforcement measure lapses. Thus, an enforcement measure based on a court judgment or decision, a decision by the Registrar approving a legal settlement or an agreement reached during the proceedings, or an arbitration decision or mediation agreement, lapses if the corresponding enforcement application is not filed within five years of the judgment or decision becoming final (Article 518 of the Code of Civil Procedure).
There is also a waiting period before instituting the enforcement of procedural decisions (by the Judge or the Registrar) or arbitration decisions or mediation agreements. This period is intended to give time to the defendant to comply voluntarily with the order, and the person who wins the case is not required to apply for enforcement. Accordingly, no enforcement of procedural or arbitration decisions or of mediation agreements will be ordered within twenty days of the date on which the conviction becomes final, or on which the decision to approve the agreement or sign the agreement was notified to the judgment debtor (Article 548 of the Code of Civil Procedure). Ultimately this waiting period is intended to encourage voluntary compliance by the defendant.
As explained above in 4.1, for the protection of the debtor, the Code of Civil Procedure lays down that certain assets are unattachable, as well as quantitative limits proportional to the attachments of salaries, wages, remuneration or pensions.
In property auctions, the sale to the highest bidder must be made for minimum amounts in proportion to the appraisal value of the asset or the amount of the debt. These debtor protection limits are higher if the debtor’s habitual residence is auctioned (Articles 670 and 671 of the Code of Civil Procedure).
The Code of Civil Procedure also states that, as a general rule, enforcement of interest on the principal amount owed and procedural costs may not be carried out for an amount exceeding 30 % of the principal (Article 575 of the Code of Civil Procedure).
Where enforcement is carried out against the habitual residence, the costs claimable from the judgment debtor may not exceed 5 % of the amount claimed in the enforcement application (Article 575 of the Code of Civil Procedure).
In mortgage foreclosures, and for debtors whose social and financial situation is particularly vulnerable, eviction from the habitual residence is postponed.
Pursuant to Articles 55 to 57 of the Insolvency Law (Ley Concursal), individual enforcement orders cannot be carried out against commercial companies that have been declared bankrupt, since the Judge hearing the bankruptcy proceedings has exclusive competence in relation to the enforcement against the insolvent party; this is intended to prevent some creditors from being treated more favourably than others.