Last Updated December 21, 2018

Law and Practice

Contributed By Pérez-Llorca

Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

The SCPA establishes that the court may order an injunctive relief in the following circumstances:

  • if the injunctive relief is aimed exclusively at guaranteeing the effectiveness of the judicial protection that may be granted in a possible affirmative judgment, to ensure that it cannot be prevented or hampered by situations occurring while the relevant proceedings are still pending;
  • if the injunctive relief cannot be replaced by another measure equally effective for the purposes of the preceding paragraph but is less burdensome or damaging for the defendant.

The applicant must comply with the following requirements:

  • an injunctive relief may only be awarded if the applicant justifies, during the course of the proceedings that, in the current case, failure to award an injunctive relief could prevent or hinder the effectiveness of the protection that may be granted in the event that an affirmative judgment is ultimately passed.
  • together with the applicant’s request for an injunctive relief, the applicant must also submit the details, arguments and documentary evidence allowing the court, without forejudging the merits of the case, to make a provisional and circumstantial judgment in favour of the basis of their claim. If the applicant lacks such documentary evidence, they may offer other forms of evidence, which the applicant must propose in due form in the same brief.
  • unless expressly decided otherwise, the applicant for the injunction must post sufficient security, in a swift and effective manner, to compensate for the damages that the adoption of the injunction may cause to the defendant’s estate.

The following types of injunctions are available, among others:

  • a pre-judgment attachment, aimed at ensuring the enforcement of judgments ordering the delivery of certain amounts of money or yields, rents and fungible goods that can be estimated by applying fixed prices;
  • apart from the preceding subparagraph, a pre-judgment attachment shall also be appropriate if it proves to be the most suitable measure and cannot be replaced by another measure that is equally or more efficient and less damaging for the defendant;
  • the intervention or court-ordered receivership of productive assets, when a judgment is sought ordering their delivery under the title of the owner, usufructuary or any other title involving a legitimate interest in maintaining or improving productivity or when guaranteeing that the latter is of paramount importance to ensure that the judgment is passed in due time;
  • the deposit of a moveable asset, when the applicant seeks a court order for the delivery of the asset that is in the possession of the defendant;
  • the drawing up of inventories of assets in accordance with the conditions to be specified by the court;
  • the precautionary registry notation of the claim when the latter refers to assets or rights subject to inscription in public registries;
  • other registry notations in cases where registry publication can ensure adequate enforcement;
  • the court order to provisionally stop an activity: the temporary abstention from a certain conduct or the temporary obligation to suspend or to cease an action that was being carried out;
  • the intervention and deposit of income obtained through an activity considered illicit and whose prohibition or cessation is requested in the claim, as well as the consignment or deposit of the amounts claimed as compensation for the intellectual property;
  • the temporary deposit of the works or objects allegedly produced contrary to the rules on intellectual and industrial property, as well as the deposit of the material used for their production;
  • the suspension of the disputed corporate resolutions when the claimant or claimants represent at least 1% or 5% of the corporate capital, depending on whether or not the defendant company has issued securities that, at the time of the dispute, are admitted to negotiation on an official secondary market;
  • any other measures expressly established by the laws for the protection of certain rights or deemed necessary to ensure effective judicial protection necessary in the event that an affirmative judgment is given at the trial.

As a general rule, injunctive relief must be requested together with the claim. However, an injunctive relief may also be sought prior to the claim if, at the relevant time, the applicant alleges and evidences urgency or necessity. In this case, the measures adopted shall cease to have effect if the claim is not filed with the same court that heard the request for the said measures within 20 days following their adoption.

The court may order an injunctive relief within a time limit of five days if (i) the applicant requests that the court grant the injunctive relief without hearing the defendant; and (ii) the applicant evidences the existence of urgency or that the prior hearing may jeopardise the efficiency of the injunction.

As a general rule, the court shall rule on the petition for an injunctive relief after hearing the defendant. However, as mentioned in the previous question, an injunctive relief may be obtained exceptionally on an ex parte basis, without the respondent present.

The court may order an injunctive relief without the respondent present if the applicant requests this and evidences the existence of urgency or that the prior hearing may jeopardise the efficiency of the injunction.

The court order shall be notified to the parties without delay and, if it cannot be notified sooner, immediately after the enforcement of the measures.

The applicant can be held liable for damages suffered by the respondent if the respondent successfully later discharges the injunction.

The same result would apply when the injunctive relief is obtained on an ex parte basis. Specifically, the SCPA establishes that where an injunction has been adopted without previously hearing the defendant, the latter may file an objection. If the court upholds the objection, at the request of the defendant, the damages caused, as appropriate, by the revoked injunction shall be determined. Once determined, the applicant for the measure shall be required to pay the said damages. Should the applicant fail to do so, their compulsory exaction shall be carried out immediately.

The applicant seeking an injunction shall post sufficient security to compensate, in a speedy and effective manner, the damages that the adoption of the injunction may cause to the estate of the defendant, unless expressly stated otherwise. The court shall determine the security taking into account the nature and contents of the claim and its assessment.

The court clerk shall lift ex officio all the injunctions adopted if a judgment of acquittal is granted and becomes final. The procedure shall continue in accordance with the provisions established in the preceding paragraph concerning the damages the defendant may have incurred.

The security must be sent prior to any act of compliance with the established injunction. The court shall decide whether the security amount is suitable and sufficient by means of a procedural court order.

The SCPA stipulates that an injunctive relief can be granted against the assets of the respondent. Therefore an injunctive relief may be granted against the respondent’s worldwide assets in line with the applicable regulations, such as Regulation (EU) No. 655/2014 of the European Parliament and of the Council of 15 May 2014, establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters.

An injunctive relief cannot be obtained against third parties. The court may only order an injunctive relief regarding the assets and rights of the defendant.

Once the injunction has been established and the security posted, if a respondent fails to comply with the terms of an injunction, they will be forced to comply with it immediately ex officio, using any means necessary, including those established for the enforcement of judgments.

Regarding the enforcement of judgments, the SCPA establishes that all persons and authorities must abide by and comply with the stipulations in the judgments. Those who are party to the proceedings or prove to have a direct and legitimate interest may request the proceedings from the court in order to overcome potential resistance to what has been decided in such decisions.

Pérez-Llorca

Paseo de la Castellana, 50
28046 Madrid

+34 91 436 04 20

+34 91 436 04 30

info@perezllorca.com www.perezllorca.com
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Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

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