Litigation and Arbitration 2014 Preview
The newly commenced year will bring important new developments in the area of civil law, some of which are already at an advanced stage in their passage through parliament without any signs, as far as we can see, of any particular obstacles to their final approval. We are talking about the amendments to the Law on Traffic, Circulation of Motor Vehicles and Road Safety and the Consumer and User Protection Law. The Bills containing those amendments are currently before the upper (in the first case) and lower (in the second) houses of the Spanish parliament.
The reform of the Traffic Law is another step towards the goal of improving road safety, and deals not so much with drivers as other elements of road safety, such as vehicles, roads, safety systems and the use of radar detection devices.
About to have a particularly visible effect on trade, on the other hand, is the amendment to consumer legislation imposed by the need to transpose into Spanish law Directive 2011/83/EU on the protection of consumers in distance contracts and contracts entered into away from business premises. The aims of the changes to the legislation include to reinforce the obligation on traders to provide pre-contractual information for contracts of this kind and to achieve wider provisions on the right of withdrawal.
Alongside these amendments, the Council of Ministers has already announced a range of Preliminary Bills (available to consult here) which will affect the rules on the noncontentious jurisdiction, legal aid as well as the administration of justice and civil registries, in order to enable the electronic processing of court auctions, among other matters.
Of all these Preliminary Bills one that particularly deserves further comment is the planned reform of the Civil Procedure Law, which essentially seeks to strengthen the role of court procedural representatives in notification acts, attachments and certain acts for the enforcement of decisions, and to introduce some amendments to trial proceedings and order for payment proceedings. The amendments to order for payment proceedings stem from and are to comply with the judgment of the Court of Justice of the European Union of June 14, 2012 (Case C-618/10 Banco Español de Crédito) on unfair terms. The Court held that Spanish law was not in line with European Union law on consumer protection, as it does not allow the court before which an application for an order for payment has been brought to assess of its own motion whether a contractual term on late-payment interest is unfair.
And in the field of criminal law, an extensive reform of the Criminal Code may be expected in 2014. The proposed reform, which is already going through Parliament and was approved by the Council of Ministers on September 20, 2013 sets out far-reaching amendments. These notably include: the introduction of reviewable life sentences; the extension of the scope of probation measures; the abolition of misdemeanors (some of which will become minor offenses); a technical review of the rules on confiscation; changes to specific offenses (including offenses against property, criminal breach of duty by directors, offenses against intellectual property, criminal insolvencies, corruption in the private sector, embezzlement and corruption of foreign public officials); and the introduction of new criminal offenses (such as forced marriage, harassment or stalking, unauthorized disclosure of private images or recordings obtained with the consent of the affected individual and the interference with monitoring devices used to supervise sentences, interim measures or security measures). Another important development is undoubtedly the proposed amendment to the rules on the legal liability of legal entities, including determining the contents of “proper control”. The Draft Reform of the Criminal Code can be viewed here.
In this preview of what lies ahead in 2014, we cannot fail to mention a number of Preliminary Bills which might be laid before parliament and could be approved with or without amendment. Some of them have sparked heated reactions, such as the Preliminary Organic Bill to protect the life of unborn children and the rights of pregnant women. Not so much in the spotlight but also on the table are: the Preliminary Bill on the exchange of information on criminal records and the status of court decisions on criminal matters in the European Union, the Law on the mutual recognition of court decisions on criminal matters in the European Union and, lastly, the Preliminary Organic Bill on the Crime Victims’ Charter.
And lastly, we may also see a reform of the criminal procedural legislation in 2014. A committee of experts has prepared a document in relation to the draft Criminal Procedure Code, which seeks to replace the whole of current (but dated) Criminal Procedure Law. That document has been published to gather suggestions for improvement which may be added before the draft becomes a Preliminary Bill. Chiefly among the countless new changes it contains, it introduces the new role of investigating prosecutor. The Ministry of Justice seems to want this reform to come into force sooner rather than later.
Department of Litigation and Arbitration, Garrigues