Law 15/2015, of 2 July, on Voluntary Jurisdiction (Ley 15/2015, de 2 de julio, de la Jurisdicción Voluntaria–“LJV”), finally fulfils the mandate issued more than fifteen years earlier in the Law 1/2000, of 7 January, on Civil Procedure –Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil –LEC), pursuant to which the Government was required to refer a draft bill on Voluntary Jurisdiction to the Cortes Generales (Spain’s national legislature) within one year (18th Final Provision).
The Explanatory Statement of the LJV stresses that its aim is to provide citizens with effective and simple methods that facilitate the attainment of certain legal effects promptly and with respect for all rights and interests involved. It also states an aim to optimise available public resources by assigning the hearing of a significant number of matters which were traditionally included under the heading of voluntary jurisdiction to legal professionals that are not vested with judicial power, such as court clerks, notaries and property and commercial registrars, who are assigned powers which are shared so that once a case is initiated or finally resolved by one of them it will not be possible to initiate or continue another case on the same matter with another. This objective is based on the conviction that removing certain cases of voluntary jurisdiction from the judicial system does not pose any risk to the fulfilment of the essential guarantees of protection of the rights and interests affected.
In practice this means the ability to refer to different professionals for matters which traditionally only a judge could hear and resolve: to court clerks, but also to notaries or registrars, in which case they must be paid the relevant fees, which in some cases may nevertheless prove more economical than referring to a judicial body, or in any case may make it possible to obtain the measures sought more quickly.
The Law itself states that its purpose is to regulate cases of voluntary jurisdiction brought before judicial bodies, and specifically, cases which have to be heard by a judicial body in order to ensure the protection of rights and interests related to civil and commercial law, without the existence of a controversy that would have to be substantiated in an adversarial process (Article 1.2), but it also contains certain provisions on the kinds of cases that can be brought before notaries or registrars.
Among the Law’s general provisions it is worth highlighting that when a judicial body hears a case, subject-matter jurisdiction may, depending on the case, fall to the Trial Courts or Commercial Courts (Article 2.1); however, in addition to the processing or management of the cases, decisions on the merits and other legally designated resolutions may now fall upon court clerks instead of the Judge. Moreover, the court clerk shall resolve all cases except for those that affect the public interest or the marital status of individuals, those that require the protection of substantive law or may provide acts of disposition, recognition, creation or extinction of individual rights, although in all cases the expressly established requirements for each type of case must be complied with (Article 1.3). The regulation of each case also covers the determination of the mandatory nature of the participation of a lawyer in each specific instance (Article 3), with the associated costs, unless otherwise legally stipulated, being at the expense of the petitioner, while the costs of witnesses and experts will be at the expense of the party that calls them (Article 7).
Title VIII of the Law deals with cases involving commercial matters. Such cases heard by a judicial body always fall under the jurisdiction of the Commercial Courts (Articles 113.1, 118.1, 121.1, 124.2, 126.1, 130.1, 133.1 LJV). In all such cases the participation of a lawyer is mandatory (Articles 113.2, 118.3, 121.3, 124.3, 126.3, 130.3, 133.3 LJV), except in cases for appointments of experts in insurance contracts (Article 137.3 LJV). However, while some cases necessarily must be heard by judicial bodies (presentation of books; dissolution of companies), others may also be brought before commercial registrars (capital reduction and redemption of shares; calling general meetings or a general bondholders’ meeting; the appointment of liquidators, auditors or controllers; mandatory audits) or even by notaries (theft, robbery, destruction or loss of securities; appointment of experts in insurance contracts).
In cases of greater importance to business and corporate practice, which are highlighted below, it is also important to take into account the amendments introduced to the Spanish Code of Commerce –Código de Comercio, “CCom”– (2nd Final Provision) and in the Spanish Corporations Act –Ley de Sociedades de Capital, “LSC”. (14th Final Provision).
Presentation of books and mandatory audits
Cases for the presentation of books by parties required to keep financial records (Chapter 1 of Title VIII) extends not only to the books, but also to other documents and accounting records (Article 112 LJV). The competence to hear these types of cases falls upon the Commercial Court in the jurisdiction of the person required to present the books, or of the business whose accounts are detailed in the books and documents to be presented (Article 113.1 LJV), and in this case it is the judge, not the clerk, who has to rule on the petition (Article 114.1 LJV). However, the most notable new element is the ability of the court clerk to impose periodic penalties of up to 300 euros per day if the person required to present the books refuses to do so without due cause, or obstructs or breaches the duty to cooperate and facilitate access to the documentation requested (Article 116 LJV).
In spite of the new regulation for such cases, the legislator has deemed it unnecessary to amend the rules contained in the Commercial Code on communication (general inspection) and presentation (individual inspection) of the books, correspondence and other documents of businesses (Articles 32 and 33 CCom); these rules, for example, require that the inspection (general or individual) take place in the offices of the business owner and in his/her presence or the presence of a person appointed thereby (Article 33.1 CCom), which contrasts with the ability of the judge, albeit only in exceptional cases, to require the presentation of the books or electronic versions thereof in Court, provided that the entries to be examined are specified (Article 114.2 LJV).
Also worthy of mention, with respect to business accounting, although they are not regulated in Title VIII of the Law, are cases of audit requests (Article 40 CCom, in the wording given by the 2nd Final Provision of the LJV). The obligation to submit accounts for auditing as a consequence of a duly justified request by a party who can prove a legitimate interest may be determined by a court clerk or even by a commercial registrar (Article 40.1 CCom), which is surprising considering that a case for presentation of books, on the other hand, can only be decided by a judge (Article 114.1 LJV), and in both cases the right of businesses to the confidentiality of their financial records may be seriously compromised (Article 32.1 CCom).
Dissolution of companies
The Law gives exclusive authority over the hearing of cases for the dissolution of a company to judicial bodies (Title VIII, Chapter V), and their resolution to the judge (Article 128 LJV). Competence over judicial dissolution falls upon the Commercial Court in the jurisdiction of the company’s registered office (Article 126.1 LJV).
The Law has not made any changes to corporate legislation on the judicial dissolution of capital companies (Article 366 LSC) here either. However, if the request is presented by an individual with legal standing other than the directors, although the LSC does not require it, this request must be communicated to the company, as the LJV requires proof that this notice has been served (Article 127.1 LJV).
Capital reduction and redemption or transfer of treasury stock
Court cases for share capital reduction and the redemption or transfer of shares (Title VIII, Chapter IV) are directly subject to the rules for general cases (Article 124.1 LJV), with competence falling upon the Commercial Court in the jurisdiction of the registered office of the company to which the case refers (Article 124.2 LJV).
These rules need to be placed in relation with some of the amendments introduced to the LSC (14th Final Provision, LJV). In this respect, these cases only refer to capital reduction and the redemption of shares as a consequence of the infringement of regulations related to treasury stock (Articles 139 and 141 LSC). Competence to rule on mandatory capital reduction, instead of falling upon the judges, now falls upon the court clerks. But cases with the same purpose can now even be processed by commercial registrars, although the decision, whether favourable or unfavourable, may be appealed in the commercial courts (Articles 139.3 and 140.2 LSC).
Calling general meetings and general bondholders’ meetings
For judicial cases to call general shareholders’ meetings or a general bondholders’ meeting (Chapters II and VI of Title VIII), competence falls upon the Commercial Court in the jurisdiction of the registered office of the company to which they refer (Articles 118.1 and 130.1 LJV). But in these cases it is not the judge but the court clerk who rules on the request (Articles 119.5 and 131.1 LJV) and, if accepted, will call the general meeting or bondholders’ meeting within one month of submission of the request, indicating the place, date and time it is to be held, as well as the agenda (Articles 119.5 and 131.3 LJV), although it is noteworthy that there is no indication of the time the clerk has to issue the decision. Moreover, an order resolving to call a general meeting or bondholders’ meeting is unappealable (Articles 119.5 II and 131.2 II LJV).
Consequently, the corresponding rules in the LSC (14th Final Provision, LJV) on calling general meetings (Articles 169, 170, 171, 377.1 and 492.2 LSC) and the general bondholders’ meeting (Article 422.3 LSC) have been amended. But these articles provide that a general meeting or bondholders’ meeting may also be requested through the commercial registrar of the jurisdiction of the company’s registered office. In fact, in the case of a general shareholders’ meeting for a European public limited company the request must necessarily be submitted to the registrar (Article 492.2 LSC). In any case, resolutions by commercial registrars approving a call for a general meeting or a bondholders’ meeting are also unappealable (Articles 170.3 and 422.3 LSC).
Appointment and removal of liquidators, auditors or controllers
For judicial cases for the appointment or removal of a liquidator, auditor or controller for a company (Title VIII, Chapter III), competence also falls upon the Commercial Court in the jurisdiction of the company’s registered office (Article 121.1 LJV). The clerk rules on the case by means of an order, which must be issued within five days of the final appearance of the interested parties required to take part in the case (Article 123.1 LJV).
Certain precepts of the LSC have also been amended here (14th Final Provision, LJV) on the appointment and removal of auditors (Articles 265 and 266 LSC), the designation and removal of liquidators (Articles 377, 388 and 389 LSC), and the appointment of controllers (Article 381 LSC). These articles provide that such cases may also be processed by commercial registrars, although in any event the decisions may be appealed through the commercial courts.