SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henríquez de Luna, Virginia Jover and Pedro Echeguren, López-Ibor Abogados
On 8 April 2021, the UK applied to accede to the Lugano Convention in its own right. On 4 May 2021, the European Commission published a diplomatic note informing that it was not able to consent to the UK’s application. France opposed the application, Germany was unde - cided and Spain, Portugal, Ireland and the Nether - lands were in favour. On 18 November 2021, the European Parliamentary Research Service issued a briefing confirming the Commission’s grounds for rejecting the UK applica - tion, stating that accession to the Lugano regime is bound up with the notion of close economic integra - tion and interconnection based on the four freedoms. For the EU, the Lugano Convention is a flanking meas - ure of the internal market and relates to an EU-EFTA/ EEA context: “The UK is a third country without a special link to the internal market. Consequently, the Hague conventions should provide the framework for future co-operation between the EU and the UK in the field of civil and judicial co-operation.” The Legal Co-operation Act Previously, the recognition and enforcement of UK judgments in the EU and EU judgments in the UK were governed by the national law of the UK and EU member states and by the Hague Choice of Court Convention 2005, where applicable. However, since 1 January 2021, the recognition and enforcement of UK judgments in Spain have been governed by an old bilateral treaty: the Convention on Civil and Commercial Procedure, signed in London on 27 June 1929. Matters not covered by this bilateral convention in Spain come under the provisions of the Legal Co-operation Act. The Legal Co-operation Act distinguishes between the two steps of recognition and enforcement, which will make procedures last longer. Only final UK judgments can be recognised in Spain. With respect to UK injunctive relief, it is worth noting that UK ex parte orders or orders dictated with due process of law will not be recognised in Spain.
The Legal Co-operation Act also requires a reasonable connection between UK jurisdiction and the litigated matter. A reasonable connection is deemed to exist if the judgment of the UK court is based on similar criteria as those followed in the Organic Law 1/1985. The Spanish criteria are very similar to those provided by the Recast Brussels Regulation. In practical terms, this means that UK judgments dictated as a result of forum presentiae will not be accepted by Spanish courts. Spain is not a member of the Convention of 30 June 2005 on Choice of Court Agreements. After Brexit and its transition period, Regulation Rome I and Regulation Rome II on choice of law will remain applicable by Spanish judges, since their application is universal (EU member states apply these regula - tions to third countries). Hague Conventions It must be highlighted that the regime of the Hague conventions is less effective than those of the Recast Brussels Regulation or the Lugano Convention. The Hague Choice of Court Convention 2005 is nar - rower in scope because it is only applicable to exclu - sive jurisdiction agreements. Therefore, contracts with asymmetric jurisdiction clauses will fall outside the scope of this convention. Interim protective measures such as injunctions, and consumer, employment and IP disputes, are beyond the scope of this convention. The Hague Judgments Convention 2019 has a wider scope than the Hague Choice of Court Convention 2005 because no exclusive jurisdiction clauses are required in order for it to apply. Employment and con - sumer contracts fall within its material scope. However, only five states have signed the Hague Judg - ments Convention 2019. This situation could change when the EU and the UK accede to it, because then free movement of judgments between the UK and the EU will be effective in some civil matters.
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