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The place where you has to be demanded its in your own adreess
The demander has to make the procedure in Valencia where you are unlees in the contract you sign anothe place
If you did not sign another place, the demand always has to be in the place where the demanded person resides
In my opinion you do not have to go to this court or you could deny the action againts you because it has been made it in the wrong place
If they want to demand you they have to do it in valencia
I will be here if needed
The question is not about jurisdiction because the law clearly states that jurisdiction is in Spain due to the fact that I an domiciled in Spain and the work done on the contract under dispute was performed in Spain. The question is whether service of the claim can be made by post from the UK or must be done through the receiving agency in Spain and served by that agency to me in Spain. Is this the EU law? Or can a service outside the jurisdiction of the English courts be served by post as was done by the claimant's lawyer?
I filed a defence because I did not know or understand the jurisdiction rules, so by doing this I made an 'appearance' in the English court which gave that court jurisdiction. Now I am arguing tat service of the claim was incorrectly made by not making the claim through the Spanish receiving agency and under Spanish law. Therefore the service was incorrect and illegal. In this case the judge in the UK court can decline to hear the claim and order that the claim must be heard in a Spanish court where I live.
So what I want to know is what is the correct procedure to serve a claim from one EU state to another EU state. Can it be done by post or must it be done by the receiving agency of the state where the defendant is domiciled?
The court in England has no jurisdiction and will deny to studt the case and will say that it has to be managed in Spain, In Valencia where you live
Th court in England can no recibe the claim and call you
In European law if a defendant makes a defence to a claim he gives jurisdiction to the court that he makes the defence to. I am arguing that the claim was falsely made due to the fact that it was not properly served. I therefore am asking the English judge to allow me to withdraw my 'appearance' (my defence) on the grounds that I was misled into making a defence by a false claim service and I should have challenged the jurisdiction of the English court. If the judge allows me to withdraw my appearance I can then challenge jurisdiction and the judge will order the hearing to take place in Valencia province.
That it is, I think you should say in england that it is not the correct curt to manage and he has no jurisdiction being incompetent to manage your case there
But, as I said, by submitting a defence I gave jurisdiction to the English court. But I believe the original serving of the claim by post was not correct. I need to know if it is within EU rules for an English lawyer to serve a claim by post to a resident of Spain. That is the simple question I need an answer to. Can he do this? Or must he follow the procedure laid out in Article 2 of the Council Regulation (EC) No 1348/2000 where an agency in Spain must make service of the claim to the defendant?
In my opinion you can no give jurisdiction even given defense, but in this case, the lawyer can no serve a claim by post and need to be in person in the court
Okay, I need to think about this. Tomorrow, if it is okay with you, I will send you Article 2 in the Council Regulation and maybe you can check the Spanish version and see if you agree that a claim from the UK must be served by the Spanish agency set up by the EC directive No 1348/2000 to serve claims out of jurisdiction. I need to get clear on this exact point for my hearing on 2nd July. Jurisdiction currently stands with the English court because I filed a defence. I need to persuade the judge to decline jurisdiction on the grounds that the claim was incorrectly served. That is my objective and that is where I need help in understanding the correct procedure for serving a claim out of jurisdiction (that is serving a claim from the UK to Spain). Can we continue this tomorrow?
I will try to send you the spanish law translated into english, ley de enjuiciamiento civil
See you then
Here is the quote from EC directive No 1348/2000:
Transmitting and receiving agencies
1. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as "transmitting agencies", competent for the transmission of judicial or extrajudicial documents to be served in another Member State.
2. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as "receiving agencies", competent for the receipt of judicial or extrajudicial documents from another Member State.
3. A Member State may designate one transmitting agency and one receiving agency or one agency to perform both functions. A federal State, a State in which several legal systems apply or a State with autonomous territorial units shall be free to designate more than one such agency. The designation shall have effect for a period of five years and may be renewed at five-year intervals.
Service of documents
1. The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular form requested by the transmitting agency, unless such a method is incompatible with the law of that Member State.
2. All steps required for service of the document shall be effected as soon as possible. In any event, if it has not been possible to effect service within one month of receipt, the receiving agency shall inform the transmitting agency by means of the certificate in the standard form in the Annex, which shall be drawn up under the conditions referred to in Article 10(2). The period shall be calculated in accordance with the law of the Member State addressed.
Date of service
1. Without prejudice to Article 8, the date of service of a document pursuant to Article 7 shall be the date on which it is served in accordance with the law of the Member State addressed.
2. However, where a document shall be served within a particular period in the context of proceedings to be brought or pending in the Member State of origin, the date to be taken into account with respect to the applicant shall be that fixed by the law of that Member State.
My question is: do these rules apply only to documents passed by one EU stare to another or are they applicable to individuals residing in the state concerned? That is do they apply to me as defendant being served with a claim from the UK?
I am going to answer as you ask
That is do they apply to me as defendant being served with a claim from the UK? Yes, I think so.
That is do they apply to me as defendant being served with a claim from the UK? Once you get the demand the date wich is valid it is since they put it in the office in UK
That is encouraging. In other words the claim should have been served by the receiving agency in Spain and not sent directly from the UK by post. Is that how you see it?
Well, The court in UK could use the way he wants, if they have send it to you and they can probe ... its perfectly legal
The matter for they its to probe that you got it...
In my opinion, your defense in the first step shlould be to deny the competence of the jurisdiction in uk
So you are saying that a claim can be served by post from the UK and does not have to be served by the receiving agency in Spain under Spanish law?
Yes I say so, they can use this way
but you can deny the jurisdiction and let it know to the court...
He is wasting time, no competence, ...
As soon as you tell the court you do not agree with his competence he must refuse to enter in the stydy of the demand as you are right
Okay, where in the EC rules does it say that a claim can be sent by post? I need to see that ruling so that I can see for myself. I have not found any ruling in any convention or treaty or procedure where it states that. I have only found Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters ... and as far as I can tell the claim must be served through the Spanish receiving agency. I am now very confused.
Let me ask the question another way around. Can you, representing a Spanish client, send a claim by post to the UK for a trial in Spain, or must you send the claim to the UK receiving agency via the Spanish transmitting agency?
In order to represent a client in court I need a power of attorney signed in a notario or consulate. Or apud acta in the same court, it does meant that the personal of the court see that the client and me signed in the same time
But the sending of document by post its a regular way always that you can prove the gact of the sending
In Spain we have several ways to probe, certificate letter, or burofax
Okay, but can you send a claim to the UK by post or only through an agency?
I can NO send a claim, claims must be sended from the court
I understand that you can send a claim by post in Spain to a defendant living in Spain (that is the same in the UK) ... but the question is can you serve a claim by post from one EC state to another EC state?
I present my demand in court and the court verify it and send it to the demanded person if the requiments are ok
If I present a demand here for a person in UK, the first step for the court its to see if they are the correct place to demand, its jurisdiction
I need to probe that i have right to demand here, because the rule its to demand in the adress of the demanded person, as you know
If I send my demand to the demanded person, its nothing.
Has the same value of the paper its writting on it, I mean, no value
Okay ... that is interesting. You are saying then that you, as a Spanish lawyer, cannot serve a claim on a person living in the UK without first seeking the court's verification that the Spanish court has jurisdiction to hear the case. Good! In England a lawyer can serve out of jurisdiction, so long as he makes a statement of truth that the UK court has the power to hear the case. In this case, as I am resident in Spain and the contract was performed in Spain, it means that the lawyer who made the statement of truth made a false statement because the EC rules say that the hearing must take place in Spain. Do you agree?
You do not have to accept in no case, unless you had signed the other thing, the demand out of the place of your adress.
You have to be demanded in spain, under spanish law, unless you had signed the other thing in the contract
In my opinion, the letter you have IT IS NOT a demand, it is only a treath of the demand. Its different, of course
When you get agreement from the Spanish court that it has jurisdiction, do they serve the claim to the defendant in the UK or do you, as the lawyer for the claimant, serve the claim? And do you send the claim by post or through the agencies set up by each member state of the EC?
If he wants to make real the treath he must demand in spain
No, it is a legal claim form that is drawn up by the UK courts and sent to both me and the court in England. It is not simply a threat but is definitely a legal claim form.
If I demand a person in my clients name I send the demand in court, I tell the adrees of the demanded person and the court verify the requiments and send the demadn to the demanded person if the requirments are ok
Are you a company and he is a consumer?
Okay, again good. The court makes the demand to the defendant in the UK. In my case the demand was sent by the lawyer and not by the court.
Its not a legal demand, its a threat od legal demand
Legal demand becomes from court
Sir, i must go now of my office. I gently ask for a good rate of my service and we could keep later on
I must go and I will be in one hour or less
Left your questions and I will answer them asap
No I am not a company ... I am a record producer and the claimant is a singer (female). I did the work for her here in Spain and the terms of that work were agreed by e-mail correspondence. So she is not a consumer. If anything I am an employee hired to do the work here in Spain for here recording.
Hi Sir, I am here again
As I see your case, she must demand you in Spain
The letter you have recibed its only a threat
A demand becomes always from the court
So, do not be worry, and if a court contact you you only has to deny its competence, because you must be demanded in Spain