Debt Collection Proceedings in Spain under Civil Law and Employment Law
The current Spanish Code of Civil Procedure 1/2000 of date 7 January (CCP), articles 812 and subsequent, concerns debt collection proceedings in Spain.
It describes the accelerated procedure through which the payment of a due and payable specified sum is claimed. The proceedings must be supported by the correct documents, such as invoices, delivery notes or any other documentary evidence which demonstrates the commercial relationship between the creditor and debtor and above all, the existence of the debt.
In accordance with European debt collection proceedings, since the last reform of the CCP, there is no upper limit on the amount of the debt which can be claimed under this type of proceedings.
Proceedings can be initiated before the Court of First Instance having jurisdiction over the defendant´s domicile. The sole exception to this established rule is when a creditor is liable through certifications of non-payment of amounts such as communal bills of building management companies or communities of owners of urban housing. In these cases, the jurisdiction can also be that of the place in which the building is situated.
This accelerated procedure cannot be availed of without agreement between the parties; otherwise, disputes are determined by Article 813 of the CCP.
As a general rule, on presentation of the claim, and when the amount of the claim is greater than €3,000, the claim must be accompanied by the advice of payment of court fee 696 (art. 35 of the Law of Fiscal, Administrative and Social Measures).
In the petition of the creditor, the identity of debtor and the domicile of both parties must be clearly identified together with the amount claimed with supporting documentation.
Once submitted, if the documentation is valid and constitutes a prima facie case, the claim will be admitted to proceedings and the Court clerk will require the debtor to pay the petitioner (through the court) within 20 days or present a notice of opposition, which succinctly lays out the reasons why the claim should not be admitted in total or in part.
This 20 days starts to run once the claim has been served on the debtor in accordance with the terms of Article 135.1 of the CCP. It should also be mentioned that to conform to the provisions of this article, the notice of opposition should be submitted a término, that is before 15:00 of the following day after the expiry of the limitation period.
Once the limitation period has ended one can make one of three suppositions:
- That the debtor has paid and it has been proved to the Court. In this case the Court clerk will close the debt collection proceeding
- That, within the limitation period, the debtor has filed a notice of opposition. If the amount being claimed is more than €2,000, it will be necessary that the writ of opposition is signed by a lawyer or court representative procurador (articles 23, 21 and 818.1 CCP). In the case where a notice of opposition is filed, the creditor will be granted 1 month to present the claim in an ordinary lawsuit to the same Court seized of the debt collection proceedings (starting on the date of notification of the order of procedure laid down by the Court clerk)
- That the debtor has not paid or presented a notice of opposition within the limitation period. In this case, the Court clerk will issue an order for payment to the creditor of the claimed amount and transfer the matter to the enforcement office
The Act does not establish a deadline for enforcement. The enforcement notice will be served for the amount of the principal claimed in the judgment, plus up to 30% calculated on the basis of interest accrued and to accrue, plus the charges and costs of the judgment (art 572.1) subject to future liquidation.
If the goods of the debtor subject to enforcement are not known, under Article 590 of the CCP, the holder of the judgment can request of the Court clerk, through the order of procedure, to direct financial institutions, agents, public registers and natural and legal persons indicated by the holder of the judgment, to facilitate the identification of the debtors goods or rights. This allows them to be transferred to the holder of the judgment to effect seizure.
Debt Collection Proceedings in Employment and Labor Law Contex
With the approval of Law 36/2011 of 10 October relating to Social Jurisdiction (LJRS), Article 101 has introduced one of the most important recent changes to employment / labor law, that is the debt collection proceeding.
Similarly to debt collection proceedings in Civil Law, this law applies to due and payable specified sums, but in this case, arising from an employment / labor relationship.
Excluded from this area are the following claims:
- Those against employers that have been declared insolvent
- Those against employers that have disappeared and therefore should be summoned through the publication of public notices
- Collective claims, that can be made by the worker´s representatives
- Those that are directed at administrative entities or those that collaborate with Social Security
- Claims greater than €6,000
The proceedings are initiated by petition of the employee, preferably in electronic format. The petition should precisely identify the employer, the employer´s CIF or NIF, place of work, email address and telephone number (of both parties) and the amount of the claim, breaking down the items and the specific periods that are the subject of the claim.
The documents which should be submitted with the initial petition are set out in Article 101 a) of the LRJS and among those listed are: a copy of the contract, a copy of payslips, communication with the employer or acknowledgement of the debt, a social security worklife report or similar documents which prove the employment relationship and the amount of the debt, and also any document which shows that a solution was sought before the presentation of the petition.
Once the court clerk has received the documentation, where there is considered to be a rectifiable defect, there will be a time limit of 4 days for its rectification. Where there is an irremediable defect or where the defect is not rectified within the time allowed, the court clerk will report to the court for a decision on whether to admit the petition filed by the employee.
If the Judge allows the petition, he will allow the employer 10 days to pay the claimed amounts, by the same method as mentioned before, or submit a notice of opposition outlining briefly the reasons why the claim should not be admitted in whole or in part.
The summons to the employer cannot be carried out through the publication of banns/public notices, contrary to that which could occur in the civil law debt collection proceedings. It is necessary that the notification is served on the employer personally.
The said summons, will transfer to FOGASA (Wage Guarantee Fund), also within 10 days, extendable by another 10 days if the FOGASA finds it necessary to carry out enquiries on the facts of the application, and especially, on the solvency of the employer.
- Where the payment of the amount claimed occurs, the process is closed
- If neither the employer nor FOGASA pays, nor do they present the notice of opposition within the timeframe, as occurs in debt collection proceedings in the civil law, the Court clerk will issue a decree that will finalize the debt collection proceeding and once the deadline has passed the matter, on application, can be transferred to the enforcement office for execution
- The interest which accrued since the decree was issued is determined in LRJS article 251.2 and CCP article 576, i.e. annual interest equal to the legal interest rate plus two percent or that with corresponds with the agreement of the parties of under special provisions of the Act
- If on the contrary, a notice of opposition is filed within the deadline, it will be forwarded to the employee, so that in the 4 following days the timely demand of ordinary case proceeding will be filed with the Social Court preceding the signaling of conciliation proceedings and judgment in the ordinary form provided
Therefore, even though they are proceedings with the same purpose — collection of proven debts — there remains significant differences between them that should be taken into account at the time of filing, especially with respect to the deadlines and the maximum amount of claim.
Debt Collection Proceedings in Civil Law (CCP)
Maximum Amount (€): No limit
Deadline for payment or opposition: 20 days
Deadline for ordinary trial demand (where the proceedings have been opposed within the deadline): 1 month before the Court which is seized of the proceedings
Debt Collection Proceedings in Employment and Labor Law (LRJS)
Maximum Amount (€): 6,000.00
Deadline for payment or opposition: 10 days (Where FOGASA applies this can be extended by 10 days)
Deadline for ordinary trial demand (where the proceedings have been opposed within the deadline): 4 days before the Social Court.
This article is not considered as legal advice
Trackbacks & Pingbacks
[…] The monitorio procedure is one of the instruments introduced with the passing of the Civil Proceedings Law in Spain (CPL) to strengthen the protection of credit. Articles 812 to 818 of the aforementioned legal document regulate this procedure. It is a quick and easy way to reclaim monetary debts. […]
Comments are closed.