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Electronic notifications: everything you need to know to avoid a reduction in your legal rights and guarantees

| News | Litigation

Olga Andrés and Íñigo Rodríguez-Sastre comment on the recent ruling of the Constitutional Court which has established that the first summons to companies in the authorized electronic address violates their right to effective judicial protection.

The Constitutional Court upheld, through judgement no. 47/2019 issued on 8th April 2019, the appeal filed by a company that was condemned in an employment lawsuit, since it was held on the scheduled date without any representative of the respondent entity appearing. It should be noted that the company was summoned through its authorised electronic address (hereinafter, "DEH"), an act of communication of which it had no knowledge. 

Should the first summons to the defendant always be served by registered post with acknowledgement of receipt?

There are certain subjects, including legal persons, who have an obligation to interact with the Administration of Justice through telematic or electronic systems (arts. 152.2 and 273.3 LEC).

However, the Constitutional Court has clarified that this obligation contains an exception, since the first summons to the defendant not yet present in person in the proceedings cannot be carried out through telematic or electronic systems but must be carried out through "sent by mail to the defendant's address".

In other words, the defendant's first summons must be served by registered letter with acknowledgement of receipt to the address designated by the plaintiff in his statement of claim. Only when the defendant is present at the proceedings will the defendant be obliged to use the existing telematic systems and to receive notifications through his DEH.

Otherwise, the right to effective judicial protection is violated and the defendant is placed in a defenceless situation.

Do legal persons have an obligation to access their DEH to know its content?

The Constitutional Court emphasizes that prior to the first communication, the respondent may not have full knowledge of the existence of judicial proceedings against it.

It therefore considers that the fact that the legal person does not check the receipt of the procedural communication in the DEH should not be regarded as negligent.

Can judicial bodies be required to exercise a special duty of diligence in complying with the rules governing acts of trial communication?

The Constitutional Court imposes on the courts a minimum level of diligence required for procedural communication to reach the defendant and must ensure that the party is heard in the proceedings.

In the case under trial, the court did not use or exhaust all possible means to achieve the effectiveness of the summons, since it was sent only through the DEH, without subsequently verifying its withdrawal within 3 working days (art. 162.2 of the Civil Procedure Code).

The court erred in its approach, since it had to exhaust all possible means of communication to ensure that the summons reached its addressee, giving it the opportunity to act in defence of its rights and interests and to guarantee the right to effective judicial protection without lack of defence.

What protocols and actions can be developed to avoid a loss of procedural rights and guarantees?

The protocols that may be adopted by legal persons with the aim of avoiding their declaration of default in a judicial proceeding because they have not been summoned by registered letter with acknowledgement of receipt are: (i) check the status of your DEH on the AEAT website; (ii) set up a specific e-mail for the purpose of receiving notifications in the DEH; and, (iii) ensure its proper functioning with qualified persons.

What action should be taken if there has already been such a loss of procedural rights and guarantees?

A legal person who has been declared in absentia as a result of the fact that the first arraignment was carried out through his DEH must immediately contact his lawyer and denounce the nullity of the arraignment carried out in the first act of appearance before the court (article 166.2 of the Code of Civil Procedure).

Likewise, the aforementioned nullity must be validated, either through the resources established in the law against the resolution in question, or by filing an incident of nullity of actions provided that it has not been possible to denounce it before the resolution that puts an end to the process, and provided that said resolution is not subject to ordinary or extraordinary appeal (arts. 227.1 and 228.1 of the Code of Civil Procedure).

In this way, it will be possible to comply with the requirement of exhaustion of judicial channels prior to constitutional protection.

You can read the article in Expansión

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