International jurisdiction in regular proceedings subsequent to the Spanish and European Order for Payment
Both European (hereinafter "EOP") and Spanish Order for payment proceedings are commonly used in Spain and in the EU, especially because they do not require the intervention of a solicitor or a lawyer. In both cases, the exclusive and excluding forums of the defendant's domicile apply, as per article 813 LEC (Spanish Civil Proceedings Act) and Final Provision 23 of the LEC respectively.
Procedure for the European Order for Payment
It is also common that neither one nor the other yields the desired result, i.e., that the requested party pays the amount allegedly due and not disputed to the creditor, given how easy it is to oppose the aforementioned injunction. In effect, a succinct statement of the grounds that the amount is not due, for example, because the creditor did not comply with his obligation to deliver the goods. The requested party will not even have to provide any evidence or proof of what he is pleading in his defence.
Then, as is well known, the creditor will have 20 working days or 30 calendar days in the case of the EOP to go again to the competent courts and file the corresponding regular proceeding. In the case of the EOP, the creditor may, however, have opted for proceedings closure in case of opposition and will not be subject to this obligation.
In any case and especially in cross-border cases where the rules of private international law apply, we may find that the parties, either by negotiated contract or by application of the general conditions, have submitted to the courts of a country other than the one before whose courts the order for payment or EOP was previously filed. This is indeed stated in Regulation 1215/2012 ("Brussels I bis") in its Article 25 when dealing with the extension of the jurisdiction in those cases in which there is submission to a particular forum.
In this case, where should we file the regular proceeding? In the courts of the country before which the order for payment was filed or in the courts of the country with jurisdiction by application of the express submission clause?
Spanish Order for Payment: Juicio Verbal and Juicio Ordinario
In the case of verbal proceedings, i.e., those matters whose amount does not exceed 6,000 euros, the LEC provides a solution expressly, by establishing in its art. 54.2 the non-application of submission agreements to this type of proceedings. The same does not occur with regular proceedings, to which we will have to resort to matters of more than 6,000 euros, so we have to look at what the case law says in this regard.
A practical example
To this end, it is worth mentioning a recent judgment of the Provincial Court of Valencia which declares the international jurisdiction of the Portuguese courts by virtue of the application of an express submission agreement contained in an international distribution contract, despite the fact that the EOP (European order for payment) had been filed before the courts of Valencia. And they essentially based their decision on the fact that the aforementioned Brussels I bis Regulation, on the one hand, refers to the rules of domestic law to determine jurisdiction in the event of opposition and, on the other hand, since said Regulation is part of Spanish domestic law, it is necessary to comply with the provisions of the latter in the case of submission agreements, which grant international jurisdiction exclusively to the courts of the country chosen by the parties, which in this case turned out to be Portugal.
For more information on the European Order for Payment or Spanish Order for Payment, feel free to contact our Spanish Desk. Our native in-house specialists, have the knowledge and experience to assist you.