Control Office of the Regional Competition for Rafael Juan Juan Sanjose
The preliminary hearing in ordinary suits or the act of sight in the oral proceedings will be the procedural time limit for the assessment by the court of the lack of territorial jurisdiction.
I have the honor to publish a work of the eminent jurist Rafael Juan Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.
This entry is deeper than is usually public and is especially recommended for legal professionals. Here you work Juan Juan Rafael Sanjose:
Control of the Territorial Office of Competition
Temporary limit - ATS 9-9-2015
Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón
2.- La competencia territorial en la LEC
3.- Posturas acerca del límite temporal para la apreciación de oficio
4.- Nueva doctrina del Tribunal Supremo
The appreciation of office by the judges and courts of the lack of territorial jurisdiction is a matter, seems determined that while in our procedural law, joint interpretation of the provisions that regulate has been ongoing disputes between different courts giving way, as discussed below, various criteria ranging from draw the line at the time of filing of the application, not set, in principle, limitation, as it is expected for lack objective jurisdiction.
So things, and fruit of the Order of the High Court 9 September 2015 (1), in which solution is given to said interpretative dilemma, in this paper we make an analysis of the issue, studying the foregoing, legal regulation and alternative approaches, to finalize the new doctrine stating that the Supreme Court has reasoned.
2.- The local jurisdiction in the LEC.-
Prior to study the merits believe it necessary to make a brief study of the current regulation on territorial jurisdiction is in our civil law and so rituaria, First we find that as expressed ARROYO HOLIDAYS (2) this Act maintains the general criteria for the attribution of territorial jurisdiction, without unnecessarily multiplying the special privileges by reason of matter without convert all provisions of these rules on application needed.
So, for, It is still allowed, for a number of cases, the submission of the parties, but the regime of tacit submission of the plaintiff and the defendant is perfected, with special provision for cases where, before filing the lawsuit, to admit it and sue the defendant, actions are carried out as the preliminary hearing or the application and eventual agreement precautionary measures.
The precise regulation of territorial jurisdiction is in the second section of Chapter II, Title II of the Book of the LEC first (Arts. 50 a 60), It is Article 50 LEC which regulates the general jurisdiction of individuals, the 51 the legal persons and entities without personality, Article 52 which provides for certain special privileges in terms of matter and in turn Article 53 LEC provides guidelines to resolve the issue of competition when a joinder or multiple defendants occurs.
As far as this work is to highlight matters Article 54 LEC, which exposes the dispositive of the rules on territorial jurisdiction, and it determines the legal rules conferring territorial jurisdiction only to a particular district courts apply in the absence of an express or tacit submission of the parties, excepting certain rules Article 52 and the other to the LEC or other law expressly attributed mandatory. Nor valid express or tacit submission to the matters to be decided by oral proceedings.
Keeps telling us the item will be invalid express submission contained in adhesion contracts, or containing terms and conditions imposed by one party, or which have been concluded with consumers or users.
And finally it determines that the submission of the parties shall be valid and effective only when it becomes a court with subject-matter jurisdiction to hear the case in question.
By express submission understands the legislature agreed by stakeholders accurately designating the district courts whose sometieren (art. 55 LEC) and the tacit submission shall be in the following cases according to the criteria set out in Article 56 LEC:
1. The plaintiff, by the mere fact of going to court in a particular district by filing the claim or petition or request asking is to appear before the competent court to hear the application.
2. El demandado, because to do, after themselves known at the trial after the filing of the complaint, any management than to propose as the demurrer. It will also be considered under the defendant tacitly, summoned or cited as, fails to appear in court or you do when you have precluded the power to propose the plea.
Entering particularly in the matter of this work, Article 58 LEC, concerning the assessment of office of the local jurisdiction determines that comes when territorial jurisdiction set by mandatory rules, The clerk will examine the territorial jurisdiction immediately after the suit was filed and, after hearing the prosecutor and parties in person, if you believe that the Court lacks territorial jurisdiction to hear the case, shall report to the judge to rule as appropriate by order, forwarding, if, the actions the Court to consider territorial jurisdiction. If they were elected charters application is what will manifest the plaintiff, after the injunction will be directed to this end.
As stated in Article 59 LEC, except in cases where the territorial jurisdiction set by the law come under mandatory rules, the lack of territorial jurisdiction can only be appreciated when the defendant or who may be legitimate part in the trial in a timely manner propusieren the plea.
Articles 58 and 59 LEC, se deduce, therefore, the judge can not declare, in no case, ex officio, the lack of territorial jurisdiction when it is not determined by the mandatory rules, being, accordingly, the parties who must come to its claim.
By referring the legislature mandatory rules, we must deduce the same result, as seen in the articles studied (art. 54 LEC), for cases of oral proceedings, adhesion contracts and conditions clearly imposed, which, do not support the express and tacit submission, in the case of oral proceedings, or expressed in the other two cases.
For its part, Article 60.1 LEC adds that when the decision to inhibition of a court for lack of territorial jurisdiction had been adopted under demurrer or hearing of all parties, the court where the proceedings will remitieren as decided and can not officially declare its lack of territorial jurisdiction.
In order to reduce the possibility of negative conflicts of territorial jurisdiction , The second paragraph of that article states that only if that decision had not been taken inhibition after hearing all parties, may the court where the proceedings officially declare its lack of territorial jurisdiction when it is remitieren to be determined under mandatory rules, namely, order referred control office of the territorial jurisdiction by the court that the proceedings come to competition set by mandatory rules and inhibition decision without hearing all parties had adopted it is conditioned remitieren (4) .
To summarize the above, the High Court in Auto 26 November 2007 (5) expresses that articles 50 and following of the Civil Procedure Act contains regulations on the territorial jurisdiction of the courts. Articles 50 a 53 establish the grounds of jurisdiction, but Article 54 proclaims a basic principle in this topic: attributive legal rules of territorial jurisdiction only apply in the absence of express or tacit submission… and this principle, a sensu contrario, Article 58 develops: when territorial jurisdiction comes fixed by mandatory rules, the Court examined ex officio their territorial jurisdiction … and, Finally, It concludes the basic rule in Article 59: except in cases where the territorial jurisdiction set by the law come under mandatory rules, the lack of territorial jurisdiction can only be appreciated when the defendant or who may be legitimate part in the trial proposed in a timely manner the plea.
Finally, and although we are studying the territorial jurisdiction, as we discussed below, It is noteworthy for the purposes of debate on the time limit in controlling trade within the territory of the provisions by the legislature, Article 48 LEC, competition regarding objective and so that article states that the lack objective jurisdiction ex officio be appreciated, as soon as it is noticed, by the court hearing the case. From which it follows that there is no time limit for appreciation.
3.- Positions on the time limit for assessing trade.-
The question regarding the time limit in controlling trade of territorial jurisdiction, away peacefully has been studied continuously, debate and controversy in our courts, and so, High Court, In the first moment (6) wine giving the same procedural treatment to lack objective jurisdiction and lack of territorial jurisdiction, solution, pursuant to Article. 48 LEC, made possible control office of both kinds of competition as soon as the fault is warned; therefore, not restricted to the beginning of the process.
In this line, He argued the case, are the arts. 416 and 443.3 LEC, since both allow the examination of trade, respectively, in the act of the preliminary hearing in the ordinary procedure and in the act of verbal view.
Also, the current distribution of powers between the head of the judiciary and the clerk behind the procedural reform introduced by the Organic Law 13/2009, of 3 November, under which it has been attributed to the latter's admission demands (Arts. 404.1 for ordinary proceedings and 440.1 LEC for verbal trial), also it seems to support the idea that the judge can examine of their own lack of territorial jurisdiction after the initial stage of the process.
In this regard Cars like 3 October 2006 (7) Supreme Court, They maintained that this Court has consistently ruled that the procedural treatment of territorial jurisdiction when it comes established by an imperative jurisdiction resembles the objective dispensed competition, so that, although Article 58 obliges the judge hearing the initial request to examine ex officio their jurisdiction, supervening facts when it is known that the current address is not established in demand, the court hearing the case has no territorial jurisdiction and must be applied by analogy prevented rule in Article 48 LEC for lack objective jurisdiction.
And this Court repeatedly notes that Article 411, concerning the perpetuation of jurisdiction, it would apply only if it is established that it is current address changes or alterations occurred at a later date at the time of filing the petition initiating the procedure, so when stating that the home they suddenly learned not been altered since it was on that date, no one could argue that Article 411 to maintain the competence of the body that initially met the lack of procedural said first budget for the reasons exposed.
Also in Auto 26 November 2007 (8) states that the High Court as expressed by the prosecution in its opinion, both objective and functional competition have a non-renewable nature for the parties and consequently, rules regulating holds a peremptory nature, the law obliges. Faced with those, the local jurisdiction shall be distinguished by their rules they are dispositive, as Article expressly states 54 Civil Procedure Act, so the precepts relating thereto, and therefore legal jurisdictions contemplating, They are applicable only in the absence of that resulting from conventional charters, namely, the express or tacit submission of the litigants, excepting certain cases in which other jurisdictions are established requirements that preclude such submission. A consequence of this is that, while the objective and functional competition are procedural requirements that can be controlled automatically by the judicial organ (article 48 and 62 of the Civil Procedure Act , respectively), that can take place in the assessment of office of lack of territorial jurisdiction is necessary that it comes determined by mandatory rules, as expressly required by the first paragraph of Article 58 of the Civil Procedure Act .
Later, and in more recent cars (9), the High Court changed its view and stated that according to the wording of art. 58 LEC, assessing the territorial office of competition constrains the immediate aftermath of the filing of the application, thus it is inadmissible an examination.
The latter interpretation, as the Supreme Court says (10) assumes that, despite the wording of art. 48 LEC, the legislature sought to differentiate between competition and objective territorial jurisdiction, so you do not receive the same procedural treatment.
Accordingly, unlike the strict control over competition, it is understood that the legislature intended to limit the control office on the territorial jurisdiction of the lawsuit the initial moment, which it is also consistent with the legal provision to control parte, since the civil procedural law provides that the plea should be raised during the first ten days of the deadline for replying, in an ordinary trial, or in the top five after the summons for the hearing, in the oral proceedings, Suspension of the proceedings, meaning they also control parte has wanted to take place at the beginning of the lawsuit, so that, once determined the territorially competent court, not new problems may arise from territorial jurisdiction .
This second criterion, conducive to restrict control over the territorial jurisdiction to the initial stage of the process, find legal support in cases where it is officially control the territorial jurisdiction under enforcement (art. 545.2 LEC).
Also, that criterion is also supported by the fact that, unlike what happens with objective competition, the law has not seen fit to consider the shortcomings of territorial jurisdiction as determinants and void (Arts. 238.1LOPJ and th 225 LEC), so that, upon the occurrence of a defect in the process of this nature, it should be the only procedure specifically provided treatment (complaint by demurrer, in a timely manner, or control office at the beginning of the lawsuit), so that after longer territorial competition problems arising , except specialty represented by art. 67.2 LEC, in any case require an initial complaint from which is then maintained throughout the course of the process.
Finally, you can also add that both the principle of legal certainty (art. 9.3 of the Constitution) the safeguarding of effective judicial protection (art. 24 of the Constitution) They constitute arguments to temporarily limit the control office of territorial jurisdiction, in order to avoid jurisdictional pilgrimage.
Precisely the need to avoid the jurisdictional pilgrimage was the reason that led the High Court to choose the file in order for payment proceedings (ATS de 5 January 2010 (11) and further), which it has had legal manifestation in the last paragraph of art. 813 LEC after the reform introduced by Law 4/2011, of 24 March.
Exponents of this approach are the order of the Supreme Court of 10 April 2012 (12) , Basis in his second law states that according to Article 59 the LEC, except in cases where the territorial jurisdiction set by the law come under mandatory rules, the lack of territorial jurisdiction can only be appreciated when the defendant or who may be legitimate part in the trial in a timely manner propusieren the plea. For its part, Article 58 It provides that where the territorial jurisdiction comes fixed by mandatory rules, the court shall examine ex officio their territorial jurisdiction immediately after the suit was filed and, after hearing the prosecutor and parties in person, if you understand that it lacks territorial jurisdiction to hear the case, so declare by order, referring the case to the court to consider territorial jurisdiction.
Also the Supreme Court and in Auto 29 November 2004 (13) exposed to, Control territorial office of the competition can only be performed by the Court at the beginning of the process, when it is a matter corresponding to an imperative jurisdiction, and the Auto 4 June 2004 (14) maintained automatically by the appreciation extemporaneously mandatory rule because the art. 58 It limited that possibility to "immediately after the suit was filed".
With the same criterion Auto Superior Court of Justice of the Valencian Community 12 June 2012 (15) He stated that it should be borne in mind that the timing of the appreciation of the territorial office of competition now is, as determined by Article 58 of the Civil Procedure Act , the “immediately following the filing of the application”, must then, before giving rise to their admission and if it considers that there is an error, initiate a proceeding for the purpose of giving audience to -demandante appearing parties, normalmente, and Prosecution- and resolve, in view of its allegations, on the question raised.
Continues the Superior Court of Valencia that since then another interpretation is not easy to do. Note, one side, that the wording of that provision is clear and leads to denying the existence of different and successive opportunities official examination; of other, that the nullity for lack of competence is only tied to the objective or functional nature; and finally and probably because of it, that control of trade is governed by different rules allowing, in the case of objective, appreciation “as soon as it is noticed” (Arts. 238.1LOPJ and th 48 and 61 LEC). Precisely it is marked differences which spoil certain assimilation in the procedural treatment of competition and the objective of territorial jurisdiction and which require not only exclude applying Article 48 of the Code of Civil Procedure latter course, but also limit the powers of the judge to declare incompetent by reason of territory at any time during the procedure, including the act of seeing itself, and to a hypothetical emergence of new facts or later knowledge (art. 443.2, II LEC).
Of course, nothing prevents the defendant alleges those facts by the setting on time and the plea for lack of territorial jurisdiction (art. 59 LEC). Legal This provision forces the territorially competent body should not be fixed permanently until it is resolved on it, if it were to arise, or until expiry of the period for submission, if it is finally decided not to go to that instrument or do extemporaneously. It would then, to decide the plea and ex parte, when the court could check whether the mandatory rules of territorial jurisdiction and applied correctly or not, if, if it should come into play or not the effects of the call perpetuatio jurisdictionis (art. 411 LEC).
4.- New doctrine of the Supreme Court.-
In light of the various criteria set out in the previous section, High Court writ of 9 September plenary session of 2015 (16), He came to determine the solution to the problem and establish a new doctrine that would give legal certainty to the various approaches maintained.
In this regard the Supreme Court declares, constituted by the full Chamber, which can not be given the same treatment procedure to objective and territorial competition, and the need to reconcile the wording of art. 58 LEC, who chooses to limit the control office in the immediate aftermath filing of the application, with the provisions of Articles. 416 and 443.3 LEC, that enable job control at later times, advised to adopt a compromise, namely that the control office of the local jurisdiction during the regular phase declarative and verbal judgments have their limit, respectively, in the act of the preliminary hearing and the act of sight.
High Court clarifies the need to make sense of the perpetuation of jurisdiction as a general rule (art. 411 LEC) supposed, which can be controlled independently of the territorial jurisdiction of trade set by mandatory rules (and in the case of oral proceedings, not admitted submission), the mere location defendant in a place other than the address indicated in the application does not justify, sin más, the body that initially declared inhibit competition for organs that other demarcation, for, about Art. 411 LEC, to be competent a different court that he met the initial request is necessary to prove that the current address was known to supervening facts and the real or effective at the time the lawsuit was filed, so if that fact is not credited, or if it is established that the alteration occurred after, the court that initially met perpetuate its jurisdiction by application of Article 411 LEC, although the summons or citation must be practiced in the new home, resorting to mutual legal assistance (17).
In conclusion, with this new doctrine criteria that allow judges and courts know for sure until the time which can officially declare its lack of territorial jurisdiction are set, leaving, therefore, aside uncertainty and insecurity prevailed so far in our jurisprudential panorama, and so for cases which are followed by ordinary trial procedures, Preliminary Hearing will be the time limit for such an assessment procedure, being in the oral proceedings the act of sight.
Juan Juan Rafael Sanjose
Alternate Judge of the Provincial Court of Castellón.
(1) ATS, Civil section 991 the 09 September 2015 (ROJ: ATS 7109/2015 – ECLI:ES:TS:2015:7109A); Resource: 87/2015 | Speaker: MARIN FRANCISCO CASTÁN.
(2) ARROYO HOLIDAYS, F.J., "Procedural Budgets: jurisdiction and competence "in" The LEC after two years of ", Judicial Studies Law, CGPJ, 2003, nº 44, p. 21
(3) Rules set out in numbers to 15.º 1st and 4th paragraph 1 and paragraph 2.
(4) ATS, Civil section 1 the 31 July 2007 (ROJ: ATS 12384/2007 – ECLI:ES:TS:2007:12384A); Resource: 95/2007 | Speaker: ANTONIO GULLÓN BALLESTEROS – First Legal Grounds.
(5) ATS, Civil section 1 the 26 November 2007 (ROJ: ATS 15660/2007 – ECLI:ES:TS:2007:15660A); Resource: 131/2007 | Speaker: Xavier O'Callaghan Muñoz - Basis second law.
(6) for example, AATS of 25 April 2006, No conflicts 3/2006 and No 105/2005 ; 3 October 2006 , No conflict 91/2006 ; 10 July 2007, No conflicts 61/2007 and 70/2007 ; and 31 July 2007, No conflicts 2/2007 , 21/2007 and 46/2007.
(7) ATS, Civil section 1 the 03 October 2006 (ROJ: ATS 15908/2006 – ECLI:ES:TS:2006:15908A); Resource: 91/2006 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis second law. See also in the same sense ATS, Civil section 1 the 25 April 2006 (ROJ: ATS 8590/2006 – ECLI:ES:TS:2006:8590A); Resource: 3/2006 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis second law and ATS, Civil section 1 the 31 July 2007 (ROJ: ATS 12382/2007 – ECLI:ES:TS:2007:12382A); Resource: 2/2007 | Speaker: Ballesteros GULLÓN ANTONIO - Basis second law.
(8) ATS, Civil section 1 the 26 November 2007 (ROJ: ATS 15660/2007 – ECLI:ES:TS:2007:15660A); Resource: 131/2007 | Speaker: Xavier O'Callaghan Muñoz - Basis third law.
(9) AATS of 22 April 2014, No conflict 25/2014; 29 October 2013, No conflict 126/2013; 15 October 2013, No conflict 152/2013, and 24 September 2013, No conflict 108/2013.
(10) ATS, Civil section 991 the 09 September 2015 (ROJ: ATS 7109/2015 – ECLI:ES:TS:2015:7109A); Resource: 87/2015 | Speaker: CASTÁN MARIN FRANCISCO - Unique Legal Reasoning.
(11) ATS, Civil section 1 the 05 January 2010 (ROJ: ATS 213/2010 – ECLI:ES:TS:2010:213A); Resource: 178/2009 | Speaker: Antonio Salas CARCELLER - Legal Reasoning second.
(12) ATS, Civil section 1 the 10 April 2012 (ROJ: ATS 5386/2012 – ECLI:ES:TS:2012:5386A); Resource: 24/2012 | Speaker: Xavier O'Callaghan Muñoz - Basis second law.
(13) ATS, Civil section 1 the 29 November 2004 (ROJ: ATS 15050/2004 – ECLI:ES:TS:2004:15050A); Resource: 47/2004 | Speaker: LUIS MARTINEZ-CALCERRADA GOMEZ - Basis third law.
(14) ATS, Civil section 1 the 04 June 2004 (ROJ: ATS 7253/2004 – ECLI:ES:TS:2004:7253A); Resource: 23/2004 | Speaker: EUGENE CORBAL JESUS FERNANDEZ - Legal Grounds second.
(15) ATSJ, Civil section 1 the 12 June 2012 (ROJ: ATSJ CV 62/2012 – ECLI:ES:TSJCV:2012:62A); Sentence: 14/2012 | Resource: 24/2012 | Speaker: PIA MARIA CRISTINA CALDERON SQUARE - Basis second law.
(16) ATS, Civil section 991 the 09 September 2015 (ROJ: ATS 7109/2015 – ECLI:ES:TS:2015:7109A); Resource: 87/2015 | Speaker: CASTÁN MARIN FRANCISCO - Unique Legal Reasoning.
(17) AATS, among the most recent, of 4 February 2015, No conflict 143/2014, and 22 April 2015, No conflict 12/2015.