How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask José M. Your Own Question

José M.
José M., Attorney
Category: General
Satisfied Customers: 4973
Experience:  Spanish Attorney
54639574
Type Your Spain Law Question Here...
José M. is online now
A new question is answered every 9 seconds

Hi again Attorney 3044! I have another question which is

Resolved Question:

Hi again Attorney 3044!

I have another question which is more complicated and on a completely different subject.

The background:

A person in the UK has made a claim against me in the English courts. I live in Valencia province in Spain and the contract under dispute was being performed in Spain (not the UK). The service of claim was made by post from the UK. Her lawyer did not use a receiving agency in Spain to serve the claim. Next week I am travelling to the UK to challenge the service of claim on the grounds that the service should have been made under the rules of Article 2 of the Council Regulation (EC) No 1348/2000 and not by postal service from the UK.

The questions:

Can service of claim be made from one EU state to another EU state by post or must it be done through a transmitting agency in the UK and receiving agency in Spain, so that service is made according to Spanish law and the date of service is therefore when service is made by the receiving agency (Article 9)? In addition must service be made in Spanish as well as English (Article 5)?
Submitted: 1 year ago.
Category: Spain Law
Expert:  José M. replied 1 year ago.

Attorney3044 :

Hi

Attorney3044 :

The place where you has to be demanded its in your own adreess

Attorney3044 :

The demander has to make the procedure in Valencia where you are unlees in the contract you sign anothe place

Attorney3044 :

If you did not sign another place, the demand always has to be in the place where the demanded person resides

Attorney3044 :

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

Attorney3044 :

If they want to demand you they have to do it in valencia

Attorney3044 :

I will be here if needed

Attorney3044 :

Thank you

Customer:

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?

Customer:

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.

Customer:

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?

Attorney3044 :

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

Attorney3044 :

Th court in England can no recibe the claim and call you

Customer:

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.

Attorney3044 :

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

Customer:

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?

Attorney3044 :

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

Customer:

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?

Attorney3044 :

Sure

Attorney3044 :

I will try to send you the spanish law translated into english, ley de enjuiciamiento civil

Attorney3044 :

See you then

Customer:

Hi again,

Customer:

Here is the quote from EC directive No 1348/2000:

Customer:


Article 2


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.



Customer:


Article 7


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.


 



Customer:


Article 9


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.



Customer:

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?

Attorney3044 :

I am going to answer as you ask

Attorney3044 :

That is do they apply to me as defendant being served with a claim from the UK? Yes, I think so.

Attorney3044 :

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

Customer:

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?

Attorney3044 :

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

Attorney3044 :

The matter for they its to probe that you got it...

Attorney3044 :

In my opinion, your defense in the first step shlould be to deny the competence of the jurisdiction in uk

Customer:

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?

Attorney3044 :

Yes I say so, they can use this way

Attorney3044 :

but you can deny the jurisdiction and let it know to the court...

Attorney3044 :

He is wasting time, no competence, ...

Attorney3044 :

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

Customer:

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.

Customer:

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?

Attorney3044 :

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

Attorney3044 :

But the sending of document by post its a regular way always that you can prove the gact of the sending

Attorney3044 :

In Spain we have several ways to probe, certificate letter, or burofax

Customer:

Okay, but can you send a claim to the UK by post or only through an agency?

Attorney3044 :

I can NO send a claim, claims must be sended from the court

Customer:

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?

Attorney3044 :

I present my demand in court and the court verify it and send it to the demanded person if the requiments are ok

Attorney3044 :

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

Attorney3044 :

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

Attorney3044 :

If I send my demand to the demanded person, its nothing.

Attorney3044 :

Has the same value of the paper its writting on it, I mean, no value

Customer:

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?

Attorney3044 :

Yes

Attorney3044 :

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.

Attorney3044 :

You have to be demanded in spain, under spanish law, unless you had signed the other thing in the contract

Attorney3044 :

In my opinion, the letter you have IT IS NOT a demand, it is only a treath of the demand. Its different, of course

Customer:

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?

Attorney3044 :

If he wants to make real the treath he must demand in spain

Customer:

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.

Attorney3044 :

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

Attorney3044 :

Are you a company and he is a consumer?

Customer:

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.

Attorney3044 :

Its not a legal demand, its a threat od legal demand

Attorney3044 :

Legal demand becomes from court

Attorney3044 :

Sir, i must go now of my office. I gently ask for a good rate of my service and we could keep later on

Attorney3044 :

I must go and I will be in one hour or less

Attorney3044 :

Left your questions and I will answer them asap

Attorney3044 :

Thank you

Customer:

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.

José M., Attorney
Category: Spain Law
Satisfied Customers: 4973
Experience: Spanish Attorney
José M. and other Spain Law Specialists are ready to help you
Expert:  José M. replied 1 year ago.

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

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
< Last | Next >
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex Los Angeles, CA
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP Hesperia, CA
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin Kernersville, NC
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther Woodstock, NY
  • Thank you so much for taking your time and knowledge to support my concerns. Not only did you answer my questions, you even took it a step further with replying with more pertinent information I needed to know. Robin Elkton, Maryland
  • He answered my question promptly and gave me accurate, detailed information. If all of your experts are half as good, you have a great thing going here. Diane Dallas, TX
 
 
 

Meet The Experts:

 
 
 
  • Ron

    ASE Certified Technician

    Satisfied Customers:

    21781
    23 years with Ford specializing in drivability and electrical and AC. Ford certs and ASE Certs
< Last | Next >
  • http://ww2.justanswer.com/uploads/FO/fordguy4u/2011-12-17_222940_HPIM1257.64x64.JPG Ron's Avatar

    Ron

    ASE Certified Technician

    Satisfied Customers:

    21781
    23 years with Ford specializing in drivability and electrical and AC. Ford certs and ASE Certs
  • http://ww2.justanswer.com/uploads/lyeung1/2010-07-25_032152_tn_IMG_0241.JPG Dr. Y.'s Avatar

    Dr. Y.

    Urologist

    Satisfied Customers:

    18788
    I am fellowship trained specializing in general urology and reconstructive urology.
  • http://ww2.justanswer.com/uploads/docjohn174/2008-12-13_170143_johnask.jpg John's Avatar

    John

    Home Appliance Technician

    Satisfied Customers:

    13453
    Appliance repair business owner for over 43 years.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8681
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/dermdoc19/2010-09-30_160749_Photo_122807_015.JPG dermdoc19's Avatar

    dermdoc19

    Dermatologist

    Satisfied Customers:

    3954
    30 years practice in general and cosmetic dermatology
  • http://ww2.justanswer.com/uploads/BI/birddoctor/2012-6-22_173214_birddoctor.64x64.png Dr. Pat's Avatar

    Dr. Pat

    Bird Veterinarian

    Satisfied Customers:

    3464
    25+ years working primarily or exclusively with birds
  • http://ww2.justanswer.com/uploads/RY/rydergar/2012-6-6_192240_IMG0328.64x64.JPG Dr. Gary's Avatar

    Dr. Gary

    Cat Veterinarian

    Satisfied Customers:

    3423
    DVM, Emergency Veterinarian, BS (Physiology)
 
 
 
Chat Now With A Lawyer
José M.
José M.
Abogado.
241 Satisfied Customers
Spanish Attorney