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International notifications through consular channels
Mar 10, 2023

The service of civil and commercial documents through diplomatic or consular channels is provided for in both the 1965 Hague Conference Convention, Notifications, and in Regulation (EU) 2020/1784 on the same subject, of preferential application between Member States, which entered into force, for the most part, on 1 July 2022, repealing its predecessor, Regulation (EC) 1393/2007.

The Convention Notificationsis in force in 79 countries, including all Member States, including Denmark. It is also in force in the United Kingdom. Regulation (EU) 2020/1784 applies in all Member States except Denmark. However, there is a 2005 agreement between the European Union and the United Kingdom, updated from Regulation (EC) 1348/2000 to Regulation (EC) 1393/2007 and from Regulation (EC) 1393/2007 to the new Regulation (EU) 2020/1784.

On the occasion of the accession of Austria to the Convention Notifications, in 2020, was discussed within the Committee. General Issues of the Council of the European Union, whether or not the Union has exclusive competence in relation to the accession of States - third States, but also this Member State, the last to accede to the Convention - a competence which Spain considers to be self-evident. The Kingdom of Spain has also signed several international conventions on judicial assistance, including consular notifications, such as the Inter-American Convention on Letters Rogatory, signed in Panama on 30 January 1975. It has also signed bilateral conventions with Morocco, Algeria, Mauritania, Russia, China, Brazil and Uruguay, among others.

Both the Regulation and the Convention present difficulties in the design of the diplomatic or consular procedure, in addition to those arising from acceptance by the receiving State under the 1963 Convention.

Firstly, the Regulation has obliged Member States to communicate to Member States whether they accept consular notification on their territory for non-nationals. Spain has communicated that it does not accept service on non-nationals. Surprisingly, since in relation to the Hague Convention which allows this reservation, it has not made it. Service on non-nationals is therefore not permitted in the European States, but it is permitted in the 53 other States that are signatories to the Convention.

On the other hand, the question arises as to whether it is necessary to apply directly to the Central Authority or body (in both cases the Ministry of Justice) for a consular communication in order to transmit judicial documents for the purpose of service to the receiving agencies or central bodies of another Member State. It is clear from the Regulation, in addition to its exceptional nature, that it is a direct procedure and adds, in an expression borrowed from the Convention, that it is not coercive.

 Article 8 of the Convention also establishes that each Contracting State has the power to effect service of judicial documents on persons abroad directly through its diplomatic or consular agents without compulsion of any kind, although we are already aware of the limits to the use of this power.

Given that the intervention of the Central Authority is not necessary (except within the scope of Law 29/2015, as will be seen), it is considered that, for reasons of administrative control, the action should be carried out through the DG for Spaniards Abroad and Consular Affairs.

 In both instruments the transmission may concern judicial or extrajudicial documents. The former should, with a few exceptions, be electronic, which means a new complexity for the unsuitable CODEX system abroad, which is necessarily centralised, so that a different format must be considered. For extrajudicial documents, it should be remembered that Art. 35 of the Law on Notaries, on what is called notarial letters rogatorys is not applicable as it has not been developed and, above all, because the international standards that we have indicated prevail, as well as Law 29/2015, to which reference is made below, despite its subsidiary nature (Article 1 and D.A 1ª).

 With regard to R. (EU) 2020/1784, moreover, the Commission has not been notified of the notarial authorities as the transmitting authority.

Following the aforementioned international instruments, Law 29/2015 on international legal cooperation in civil matters (LCJI) is applicable to the remaining non-European States with which Spain does not have a treaty relationship. This law, which is essential in our regulatory system of private international law, devotes Article 21.1 to consular service of judicial documents. According to this, Spanish courts may transmit requests for service of documents abroad through the Spanish central authority, which will forward them to the competent authorities of the requested State by consular or diplomatic channels, or through its central authority, in accordance with the provisions of Article 12.1. Without prejudice to direct communications from the Spanish authorities, if the legislation of the State of destination does not oppose it, by registered post or equivalent means with acknowledgement of receipt or any other guarantee that allows proof of receipt to be recorded.

Art. 28 allows its extension to extrajudicial documents in view of their nature, adding that they may be forwarded to a notary, authority or public official via the Central Authority or directly, provided that they have effect in the country of receipt.

Thus, the intervention of the central authority or body designated for transmission by consular or diplomatic authority is mandatory in the LCJI, but not so in R. (EU) 2020/1784 or in the 1965 Hague Convention.

From the extra-judicial perspective, the lack of a consular channel for their own notarial activities, such as the revocation of powers of attorney, must be emphasised.

 Finally, a particularly sensitive issue is the direct sending of notification documents by notaries to diplomatic officials; such as the interrogatio in iure or the notification of the dismissal of administrators in the absence of a regulated channel.

In my opinion, it would therefore be highly advisable to unify notarial practice by organising this activity through the DGSJYFP and the DG Consulars.