SPAIN Law and Practice Contributed by: Ángel Pérez López, Luis Jiménez and Rodrigo del Saz, Uría Menéndez
(a) to provide it with any type of financial assistance, including the provision of security interests or personal guarantees in its favour; and (b) to release it from its obligations deriving from the duty of loyalty as director. On a separate note, Spanish law does not recog- nise the concept of “security trustee” who is the beneficial holder of – and enforces the security package on behalf of – the lenders from time to time. Thus, legal title over a security interest must be held by the lender-of-record under the secured facility. Furthermore, any parallel debt governed by Spanish law is unlikely to be con- sidered valid since, under Spanish law, contracts and obligations are only valid and enforceable if they are based on a valid and legitimate rea- son. In view of the above, lenders will need to provide a notarised and (in the case of foreign lenders) apostilled power of attorney in favour of the security agent to enable them to take the security or lead a co-ordinated enforcement pro- cess on behalf of all the lenders. It is becoming more common not to require a specific power of attorney but instead to accept the appointment of the agent outlined in the intercreditor agree- ment as the document that entitles the agent to act on behalf of the lenders. However, in such cases, a duly apostilled notarial certificate will also need to be provided. 5.7 General Principles of Enforcement Under Spanish law, the appropriation of collat- eral by the creditor ( pacto comisorio ) is generally prohibited, save for the exceptions of financial collateral arrangements and pledges of certain credit rights. A secured party is neither entitled to directly dispose of the collateral, so it must ini- tiate the enforcement proceedings of the securi- ty interest and apply the proceeds obtained from the sale of the collateral at a public auction or
through other proceedings contemplated under the law, aimed at ensuring that a fair value is obtained from the collateral’s sale, as payment of the debt. Depending on the case, these pro- ceedings are monitored by a court or notary public. In general, creditors are entitled to initiate three actions: • declaratory proceedings ( juicio declarativo ) ‒ since April 2025, before initiating a claim in a declaratory proceeding (but not in an enforce- ment proceeding), the claimant must first pursue any of the appropriate methods for resolving disputes foreseen in the law; • the enforcement proceedings ( juicio de eje- cución ) provided for under the Civil Procedure Law; and • the notarial or extrajudicial procedure regu- lated in the Civil Code, as supplemented in 2015 through an amendment of the Spanish Notarial Law. These procedures are aimed at selling the corre- sponding asset at a public auction and are either monitored by a court or by the notary public. Special enforcement procedures are contem- plated in cases where RDL 5/2005 does not apply. If the creditor benefits from a real estate mort- gage, the creditor is entitled to choose between multiple alternative proceedings provided for in the Spanish Civil Procedure Law to judicially obtain satisfaction of a secured debt: • declaratory proceedings (after having try one of the appropriate methods for resolving dis- putes referred above); • enforcement proceedings; and
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