The Legal System in Spain

If you are going to live, work or do business in a foreign country one of the most important factors in ensuring a trouble and stress free time is having a good legal system. How does the system in Spain work? Where does it rank when compared to other countries?

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This guide covers…

This guide explains, briefly, the legal system in Spain. It covers the criminal legal system, the civil legal system, the family law legal system, the administrative law system, the way laws are made and the legal services available in Spain.

It describes, in particular, the legal system in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one “autonomous community” (comunidad autónomalightbulb image - click here for more information on this subject to another.

This guide does not cover the details of how to deal with a criminal, a civil or a family law case in Spain. See our other guides for this.

Introduction

Spain is divided into 17 Autonomous Communities, each with its own Parliament and Government. Even though the Spanish Constitution defines Spain as unitary and indissoluble, it also recognises and guarantees the principle of autonomy of nationalities and the Spanish regions.

See our Guide to Voting and Politics in Spain for more information.

Video guide to the Spanish legal system

You can get a quick overview of the legal system in Spain by watching this video interview (below) with Spanish lawyer Miguel Manzanares. Learn more by scrolling down and reading the detailed guide he has written with us.

Making laws in Spain

Types of Law in Spain

Spanish National Laws

In Spain, the Legislative Chamber or Parliament (Cortes Generales) exercises legislative power. Its two chambers – the Congress of Deputies (the lower house) and the Senate (the upper house) – are elected by the people and pass the main laws.

The State has competence in the following fields:

Exclusive competences
  • Nationality, immigration, emigration, foreign policy and asylum law;
  • International relations;
  • Defence and security;
  • Foreign trade;
  • Monetary system;
  • Treasury and State debt;
  • Maritime fisheries;
  • Transports (ports, airports, control of air traffic, weather service; railway and transports of supra-regional interest)
  • Public works of public interest or of supra-regional interest;
  • Referenda.
Legislative competences
  • Administration of justice; procedural law;
  • Legislation on market, criminal and penitentiary matters;
  • Labour legislation;
  • Civil legislation;
  • Intellectual and industrial property;
  • Social insurance system;
  • Basic legislation on environmental protection;
  • Referenda.
Basic competences
  • Regulation of standards ensuring equality among citizens in the exercise of their rights and compliance with constitutional duties;
  • General planning of economic activity;
  • Promotion and coordination of technical and scientific research;
  • Guidelines and coordination of public health; legislation on pharmaceutics;
  • Basic legislation on public administration and administrative procedures;
  • Legislation and management of water of supra-regional interest;
  • Energy resources policy;
  • Legislation on arms;
  • Basic legislation on communication channels;
  • Defence of Spanish cultural and artistic heritage; State museums, libraries and archives;
  • Regulation of standards in the field of academic and professional qualifications;
  • Basic legislation relating to education;
  • Statistics. 

Laws of the Spanish Autonomous Regions

However, some areas of law are within the remit of the autonomous regions. Each community has its own set of devolved powers; typically those communities with a stronger local nationalism have more powers. The powers are set out in their own organic laws known as Statutes of Autonomy.

As a general rule, the Autonomous Community powers extend to all matters not allocated to the State by the Constitution, as well as the legislative development and implementation of the basic legislation and State legislation.

They may – but not all do – assume competences in the following fields:

  • Organisation of regional government institutions;
  • Changes in municipal boundaries;
  • Public order;
  • Planning, urbanism and housing;
  • Public works of regional interest;
  • Transports (Regional railway and road networks; Regional transport; ports and airports not engaged in commercial activities);
  • Agriculture and forestry;
  • Environment (protection);
  • Water management;
  • Inland fisheries, hunting and aquaculture;
  • Festivals;
  • Promotion of economic development within the frame of the national policy;
  • Craftwork;
  • Culture (museums, libraries and music conservatories of regional interest; cultural heritage; promotion of culture and of the regional language when relevant);
  • Promotion of regional tourism;
  • Promotion of sports and leisure activities;
  • Social assistance;
  • Health and hygiene;
  • Development and implementation of state basis legislation on such matters as general regulation of economic activity, education, public health or environment;
  • Execution of state legislation on matters such as labour legislation, administration of justice or intellectual and industrial property.

They all have the same parliamentary structure. These laws are passed by the legislature in the region concerned.

Provincial Laws in Spain

Provinces are responsible for:

  • Competences in fields of supra-municipal interest;
  • Technical, legal, and economic assistance to Municipalities with less than 5,000 inhabitants;
  • Provision of public services of supra-municipal character;
  • Cooperation in the promotion of economic and social development and in planning of the provincial territory;
  • Implementation of capital expenditure projects outside the municipal territorial boundaries (including secondary road networks, some hospitals etc.);
  • Any delegated competence.

The actual provincial competences, which are generally defined as securing coordination and provision of municipal services, largely depend on the Provinces’ financial resources, municipal decisions, as well as on historical development. Therefore, there are tremendous differences between the Provinces.

Municipal Powers

Local authorities – local town halls – also have limited powers in some fields.

Typically, these might be:

  • Local public utilities;
  • Local public networks (waste and water supply, public lighting)
  • Local public road maintenance;
  • Municipal police;
  • Any delegated competence;
  • Any other executive and administrative activities which are not allocated to other institutions by the law.

The process of making laws in Spain

Legislation can be proposed by:
  • The government. The government participates in the legislative process by filing a bill of law (Proyecto de Ley). Legal bills proposed by the government are passed by the Council of Ministers, which then submits them to the Congress of Deputies, accompanied by a statement setting out the necessary grounds and facts for them to reach a decision.
  • The Congress of Deputies and the Senate. These bodies can make a proposal of law (Proposición de Ley). Proposals of law are regulated in the standing orders of the houses. Non-governmental bills that are considered by the Senate are referred to the Congress of Deputies for enactment.
  • The assemblies of the autonomous communities. The assemblies can request that the government pass a bill or refer a non-governmental bill to the Congressional Steering Committee (Mesa del Congreso).
  • Popular initiative. Such an initiative requires at least 500,000 authenticated signatures and cannot relate to certain matters, such as taxation, international affairs or the prerogative of granting pardons.

Scrutiny of laws in Spain

Once a bill or a proposal of law is proposed and accepted by a plenary full session of the Congress of Deputies, it is discussed by the members to determine whether it is to be accepted, rejected or amended.
Bills and proposals of law are passed to the Standing Legislative Committee for scrutiny.
The Standing Legislative Committee designates a committee (ponencia), which prepares a brief about the text (Dictamen); this is discussed and voted on in the plenary session of the Congress of Deputies.
Once the text of the bill or proposal of law is approved, it is submitted by the President of the Congress of the Deputies to the Senate, which then follows a similar procedure.

Enactment of laws in Spain

The process finishes with the ratification and promulgation of the law.
Within 15 days, the King gives his assent to a law passed by the Cortes Generales. He then promulgates the law and orders its immediate publication.
The law enters into force 20 days after its publication in the Official State Gazette, unless the Gazette provides otherwise.

Types of police in Spain

Spain has several different organisations carrying out the role of the police.

  • The Guardia Civil has a military status and patrols rural areas (including highways and ports) and investigate crimes there. They operate from garrison posts that are called casas cuartel (“home-garrisons”) which are both minor residential garrisons and fully equipped Police Stations.
  • The Policia Nacional or Cuerpo Nacional de Policía (CNP) has a civilian status and deals with criminal offences and public order in big towns and cities. It includes special anti-riot units. In some Autonomous Communities, regional police forces have taken over many of the CNP duties (see below).
  • Policia Local exist in most cities and important towns in order to concentrate on preventing crime, settling minor incidents, traffic control, and, crucially, intelligence gathering.
  • There are also several specialist forces also with the powers of arrest for dealing with areas such as tax avoidance, smuggling and international crime. Any person with the power of arrest may intervene in urgent situations beyond their specific jurisdiction if they have reasonable cause to place a person before the courts.

Locally, all enforcement agencies work together closely, and in serious matters, usually under the guidance of an Examining magistrate. Operational policy and major interventions are nationally coordinated under the direction of the Ministry of the Interior.

Most police officers are armed.

In major tourist areas many will speak English. Some will speak other common languages.

There is a lot more routine police activity, including roadside checks, than you find in many European countries.

The courts of Spain

Although Spain is divided into Autonomous Communities, Judicial Power is unitary. Autonomous Communities do not have independent judicial power and their courts (though local) are courts of the State.

Courts in Spain are organised by territorial organisation and by jurisdictional orders. They are divided into:

  • National Courts
  • Autonomic Courts
  • Provincial Courts
  • District Courts

Military Courts also exist, but they only apply within their own internal sphere of operations.

Judges in Spain

Judges in Spain are professional judges. Judges are public servants divided into the three categories of judge, magistrate, and supreme court magistrate.

Entrance to the judiciary is limited to Spanish nationals who hold a law degree from a Spanish university and who are not legally disbarred from applying.

After their law degree, instead of going on to qualify as a lawyer – abogado – applicants must pass a tough competitive state exam. The selected applicants then enter the Judiciary School, where they take courses over a year as well as carrying out practical training as associate judges in courts and tribunals.

Candidates passing this course are then sworn in as judges.

They will then be allocated to a court.

They are often still quite young and inexperienced. This may explain the high percentage of appeals against the decisions of the lower courts.

Magistrates of the supreme court can be selected from jurists and lawyers with more than fifteen years of professional experience.

Justices of the peace are not part of the judiciary, They are local people elected by the town council of the city where they were appointed. Their role is very limited.

The basic legal system

Spain uses the so-called Civil Law system. Such systems – of which are are many in the world – are based on comprehensive legal codes and laws rooted in Roman Law and Napoleonic Law. All of the countries shown in blue on the header map use variants of the Civil Law system.

These legal codes – the Civil Code, the Criminal Code, the Commercial Code etc – form the backbone of the law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisions based upon a looser framework of laws passed by parliament.

Conceptually, civil law proceeds from abstractions, formulates general principles, and applies them to the facts of the problem in hand.

Civil law is applied throughout the entire territory of Spain, but the autonomous communities  have their own civil law system, which is applied in relation to certain legal issues.

Different types of law in Spain

In Spain, we divide the law into public law and private law.

Public law in Spain

Public law is organised as follows:

  • Constitutional law
    Constitutional law in Spain refers to the organisation of the constitutional bodies and the exercise of the citizen’s basic rights and freedoms.
  • Administrative law
    Administrative law in Spain regulates the organisation and functioning of the powers and bodies of the state, and their relation with individuals.
  • Criminal law
    Criminal law in Spain regulates the so-called punitive (disciplinary) actions.
  • Process law
    Process law in Spain regulates judging procedures.
  • Financial and tax law
    Financial and tax law in Spain is the organisation or study of the resources that constitute the finances of the State and other public bodies.
  • International public law
    International public law deals with the laws that regulate the judicial relations with other members of the international community.

Private law in Spain

Private law is organized as follows:

  • Civil law
    Civil law in Spain regulates individual rights, family, personal assets, contractual relations and civil liability.
  • Commercial law
    Commercial law in Spain regulates companies and business.
  • Labour law
    Labour, or social, law regulates the relationship between employees and employers. However, complaints about social security fall under public law.
  • International private law
    International private law in Spain regulates the relationships between individuals and companies of different nationalities or jurisdictions.

The criminal legal system in Spain

See our Guide to Crime & Criminal Cases in Spain for details of the criminal legal system in Spain.

The civil legal system in Spain

See our Guide to Disputes & Court Cases in Spain for details about how the civil law system in Spain operates.

The system relating to family law in Spain

Our guides to Family Law in Spain, Divorce in Spain and Child Abduction in Spain explain how family law works.

Administrative law in Spain

The administrative procedure provides and sets out the relationship between the Spanish citizens and the Spanish Public Administration, granting the principle of equality of the citizens before the Administration. The Courts control the regulatory power and the legality of administrative acts as well as its compliance with the objectives which justify it.

If you have been prejudiced by the act that any of the bodies or civil servants of the Spanish Public Administration had taken, you may claim against it as follows:

  • File a claim before the administrative body which act had caused you any damage. The resolution that the administrative body issues may be appealed.
  • If you do not agree with its final decision, you may ask the administrative courts to review the action.

It is strongly advisable to consult a Spanish lawyer on whether to bring legal action or not. A lawyer is always required in the administrative procedure.

Liability of the Spanish Administration

Private individuals, under the terms established by the law, are entitled to an indemnity for any harm they suffer in any of their property and rights – except if these were caused by force majeure – whenever such harm is the result of the functioning of the public services (e.g. in case of medical negligence).

The individuals have a period of one year after suffering the damages to claim against the administrative body that caused them. The decision the administration issues may be appealed.

Legal help available in Spain

Lawyers in Spain

The only source of professional legal help available in Spain is a lawyer. The lawyers of each Spanish Province have their own Bar Association called Colegio de Abogados – see Malaga Province’s Ilustre Colegio de Abogados de Málaga – and you should be able to access to a list of all qualified lawyers in the Province through their websites.

elsewhere, the individual provincial colleges of lawyers maintain lists of licensed lawyers. See here for a map showing them all.

Many lawyers will be specialists in certain fields. If you’re buying a property, for example, it is advisable to use the services of a law firm that is used to working within the scope of real estate law. This gives you the best chance to to ensure that all formalities are complied with and deadlines are met.

To continue the example, major law firms specialised in real estate operations will have a website offering information in several languages on the process of buying a property in Spain, and other matters of interest for the foreign buyer.

It is advisable to find a local lawyer that offers you services in your language, rather than lawyers of your own nationality, who may not know the Spanish system as well, or local Spanish lawyers that are unable to communicate effectively with you in your own language.

Once a lawyer has been recommended to you – or you’ve identified a likely candidate – don’t be afraid to contact their office and speak to them. They will not think this is in any way surprising.

If you feel comfortable with the lawyer, sense they know what they are talking about and find that they can communicate with you in a way that you understand, you may appoint them to act for you. In Spain, it is not usual to sign a services contract with the lawyer, and their services are hired by simply accepting the quotation given and paying a provision of funds.

The lawyer is required to give you an estimate of likely fees and costs, although you should bear in mind that, perfectly genuinely, it is often impossible to give any sensible estimate of the total fees for dealing with the transaction until you know quite a lot about it. In these cases you would expect a general indication of fees, plus a firm fee for dealing with the first stage of the transaction.

Lawyers’ fees depend upon the experience of the lawyer. They typically vary from €120-250 per hour, with the large majority in the €120-200 per hour range.

Fees are subject to VAT (21% in 2017) and you will also have to pay out any expenses incurred by the lawyer on your behalf. These will include things such as Land Registry fees, notary fees, court fees and travelling expenses.

It is possible to agree a fixed fee for certain types of work. This is a fee that does not depend upon the amount of time it takes the lawyer to complete the task.

‘No win, no fee’ deals are not done in Spain.

There is also Legal Aid (free public legal assistance) available in Spain. To be entitled to it, you must meet certain requirements (see here for more details). Application must be submitted before the process starts, to the Lawyers Bar Association of the relevant Court jurisdiction or to the Court nearest to your address.

Notaries in Spain

Notaries provide a crucial service in Spain.  They are law graduates, who have then gone on to pass additional exams to become a notary.

They are responsible for the approval, witnessing, authentication and safe storage of many important documents in Spain.

See our Guide to Notaries in Spain for more information about their role.

Mediation in Spain

Many disputes in Spain are solved by way of mediation. See our Guide to Disputes and Court Cases in Spain.

If mediation fails or if the other party won’t agree to mediation, you may need to take a more formal legal route to dealing with your difficulty.

Conclusion

Unlike some other countries, which may have the good weather and business prospects of Spain but a dodgy rule of law, Spain has a strong legal system that does well in guaranteeing that day to day rights are protected and that obligations are met.

However, it is not perfect: Spain came only 23rd out of 28 EU countries in the 2016 EU Justice Scoreboard measuring the judiciary’s freedom from political and government independence and 23rd our of 113 countries in the World Justice Project Rule of Law Index.

You may also want to read:

Andalucia.com – Law in Andalucia – Some general information on lawyers, tax, marriage and wills.

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