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JUDICIAL COOPERAITON ON CIVIL MATTERS FOR PROFESSIONALS

​In the field of judicial cooperation on civil matters, the withdrawal of the United Kingdom from the European Union could have repercussions on legal practice, on cross-border judicial proceedings that affect citizens and companies alike, as well as on the recognition and enforcement of judicial rulings.

Civil judicial cooperation is "communitised" pursuant to Article 81 of the Treaty of the European Union, and its most important provisions are governed by European Union Regulations approved on the matter. In the event of a no agreement, these Regulations will cease to apply and civil judicial cooperation between Spain and the United Kingdom will be governed by the International Conventions adopted within the framework of The Hague Conference on Private International Law .

What law will govern contractual relations and non-contractual liability, for example, in the case of damages?

In a no-deal scenario between the EU and UK, the Rome I (593/2008) and Rome II (864/2007) regulations will continue to apply, as will the previous Rome Convention (residually with respect to Denmark). It is important to note the universal nature of the applicable law, whether the competent judge is Spanish or of another Member State.  However, the Regulations will not be applicable if the jurisdiction lies with a British court.

May commercial disputes that are currently filed before British courts be judged by Spanish courts?

Without a withdrawal agreement, the Hague Convention of 30 June 2005 on choice of court agreements, to which the EU and UK adhere, is applicable. With respect to what is not regulated, Law 29/2015 of 30 June, on international cooperation in civil matters, will be applicable as a closing provision.

Other related matters, such as access to justice, obtaining evidence, communications, issue preclusion, etc. will be governed by the respective Hague Conventions (including the Convention on judicial judgements) and where there is no such Convention, by Law 29/2015 of 30 June. 

Will British lawyers continue to be able to practice in Spain?

British lawyers may continue to practice in Spain after the UK's effective withdrawal from the EU, although only under the procedure established in Royal Decree 775/2011 of 3 June, approving the Regulation implementing Law 34/2006 of 30 June, on access to the professions of Lawyer and Court Representative, which requires compliance with the following: 

  • Degree in Law from a Spanish university, recognised by partial validation of studies abroad and passes the subjects that cannot be validated.
  • Master's degree giving access to the practice of law, which will include a period of mandatory internship.
  • Pass the exam organised by the Ministry of Justice required to practice as a lawyer.

Before joining their respective lawyers' association, British lawyers will also have to begin the process for waiving the nationality requirement before the Ministry of Justice, as provided for by Royal Decree 658/2001 of 22 June, approving the General Statute for the Spanish Law System and Royal Decree 1879/1994 of 16 September, passing certain procedural rules relating to justice and home affairs.

Royal Decree Law 5/2019 of 1 March, adopting contingency measures for the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union without the agreement specified in Article 50 of the Treaty of European Union, establishes contingency measures in Article 7 for access to and the exercise of professions that are applicable to lawyers from the UK.

Specifically, it recognises that the lawyers practicing permanently in Spain as such may continue to exercise their profession, provided that they comply with the rest of the conditions that such exercise is subject to.

This article also specifically states that British nationals may take aptitude tests, meaning eligibility tests for entering the legal profession, without the need to request the process of waiving the nationality requirement, provided that such tests have been called before the effective withdrawal date from the UK.

In this case, it is clear that those British applicants who present themselves for the eligibility test for the legal profession on 6 April 2019 are exempt from this procedure for waiving the nationality requirement.

What is the transitional system of procedures for judicial cooperation in civil and commercial matters with the UK?

Article 17 of Royal Decree-Law 5/2019 of 1 March, which adopted contingency measures with respect to the withdrawal of Great Britain and Northern Ireland from the European Union without the agreement specified in Article 50 of the Treaty of the European Union being in place, includes the following provisions:

  • The judicial cooperation procedures in civil and commercial matters initiated before the entry into force of the Royal Decree-Law through any of the EU instruments, will be concluded in accordance with the law in force at the time they were initiated. Once the procedure has been completed, its effects will be governed by the international conventions in force between Spain and the UK, and by any applicable national legislation. For these purposes, the date of the start of the respective procedures will be the date the request is received.

  • The judicial cooperation procedures in civil and commercial matters initiated after the entry into force of the Royal Decree-Law will be subject to the international multilateral agreements in force between Spain and the UK and any national law applicable.

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