SPAIN Law and Practice Contributed by: Alfonso López-Ibor and Olivia López-Ibor, Lopez-Ibor Abogados
can enforce such IDERA after sending notice to the lessee. Deregistration via enforcement of the IDERA takes around two to three business days if the IDERA is properly recorded in Spain. If there is no IDERA in place, the only remedy will be court action. “Self-help” remedies are severely restricted under Spanish law. If the aircraft is exported to a non-EU country, cus - toms clearance through a DUA ( Documento Único Administrativo ), form submission is necessary. DUA clearance is granted as a matter of course except in a contested repossession, where the troubled lessee has been declared insolvent. The aircraft does not need to be physically in Spain at the time of termina - tion of the lease, re-export or sale of the aircraft after such termination. However, the sale of the aircraft could be construed under the Spanish tax law as the lessor being established in Spain for tax purposes and therefore subject to local corporate tax. 2.6.2 Lessor Taking Possession of the Aircraft A lessor/owner is not entitled to repossess/foreclose by taking physical possession of the relevant aircraft without the consent of the lessee. If the lessor/owner/lender is seeking to repossess the aircraft following the occurrence of an event of default, it is required to pursue its claim through judicial pro - ceedings. In such a case, the lessor/owner/lender would have to formally declare an event of default by serving official notice to the lessee, and if the lessee fails to redeliver the aircraft and/or spare parts, the lessor/owner/lender would have to start a declaratory action and at the same time apply for interim relief in the form of a provisional measure to arrest the aircraft. The lessor/owner/lender would be required to post a substantial bank guarantee with the Spanish court to indemnify any damage caused to the lessee. The amount of the guarantee is fixed by the court, and the judge has full discretion in this respect. The amount would be based on the judge’s subjective estimate of the likely damages for the lessee. A Spanish court would base its decision in respect of an injunction or an interim order regarding the repos - session of the aircraft on two requirements:
• the lessor/owner/lender submitted to the court a document evidencing the existence of its claim against the lessee; in other words, it must show that it has good legal right to take action against the lessee (fumus boni iuris); in this case such evi - dence would be the lease together with the notices of default, grounding notices and termination; and • a risk exists, termed periculum in mora, that any delay in passing a judgment could seriously disadvantage the lessor/owner/lender; the lessee may have dissipated all or a large part of its assets before the lessor/owner/lender is able to obtain a final judgment on its claim; this risk is always dif - ficult to prove, and it depends very much on the subjective criteria of the relevant court. 2.6.3 Specific Courts for Aviation Disputes Aviation disputes follow an effective summary proce - dure, processed by the civil courts. 2.6.4 Summary Judgment or Other Relief Under Spanish law, there is an effective summary procedure for certain types of documents and agree - ments, such as court judgments and notarial deeds (Article 517 et seq. of the Spanish Civil Procedure Law). Consequently, this process would only be avail - able if the agreement had been notarised by a public notary. Lease agreements are seldom notarised due to the cost of notaries’ fees. This procedure is advisable only when enforcing liquid claims, which are uncom - mon in the claims of a lessor/owner/lender, where the amount of the claim is subject to a further calcula - tion of the debt being enforced as well as to potential counterclaims by the lessee. 2.6.5 Domestic Courts’ Approach to Foreign Laws and Judgments See 2.1.2 Application of Foreign Laws . 2.6.6 Domestic Courts’ Recognition of Foreign Judgments/Awards Spanish courts recognise and enforce final judgments of foreign courts or an arbitral award. EU Court Judgments Any judgment issued by an EU court or tribunal in favour of a lessor can be enforced in Spain in accord - ance with the provisions of Regulation (EC) 1215/2012
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