A step towards returning to normal in the handling of litigation in Spain
The state of alarm declared in Spain, as a result of the spread of COVID-19, has to a large extent put IP litigation on hold since 16 March. The extent of this disruption has already been discussed in a previous circular from ELZABURU.
Since then, many questions have arisen with regard to the resumption of procedural activity once the lockdown period ends. The Spanish Government sought to provide clarification on some of these issues in Royal Decree-Law No. 16/2020, of 28 April, published on 29 April. The scenario we now face is the following:
1. Continuation of the suspension until 10 May
The measures are based on the principle that the suspension of procedural time limits and deadlines shall remain in force for as long as the state of alarm continues. At present, this is expected to be lifted on 10 May. In the meantime, briefs may be filed and court notifications may be served although without giving rise to any active deadline.
2. It will be possible to conduct certain court proceedings in August
It will be possible to conduct court proceedings during the period from 11 to 31 August, which was traditionally an official vacation period for the courts. This means that hearings may be scheduled for these dates. Given the general context of the measures adopted, it is uncertain whether this exceptional period will be restricted to actions of an urgent nature (as far as our work is concerned: interim relief measures, preventive briefs and preliminary enquiries).
The opening up of this period in August should not mean that procedural time limits will also continue to run during this period, if they are not linked to urgent action. In this regard, it is possible that August may continue to be considered a recess period.
3. Calculation of suspended deadlines once procedural activity is resumed
Deadlines suspended as a result of the state of alarm will be calculated again from the beginning, once the lockdown is lifted. That is, the first day of the time period will be the day after the date on which the suspension ceases to have effect. This clarifies an important issue.
4. Extension of the time limits to appeal judgments notified during the suspension period or immediately after it ends
The Government has extended the time period for appealing judgments that are notified to the parties during the period the suspension is still in force and even during the 20 working days after the suspension is lifted. The extension will be for a period equal to that legally established for the appeal. Thus, if notification of the judgment is given now, before the suspension is lifted, the first day of the time period will be the day after it is lifted, with double the time period calculated from this date onwards.
5. Preferential handling of certain legal proceedings up to December 2020
The measures approved by the Government favour granting preference in the handling of legal proceedings, and up to 31 December 2020, to certain matters relating to the economic and social effects of the coronavirus crisis. These matters do not include intellectual and industrial property rights. However, the law expressly excludes from this limitation urgent actions in any field. The hope is that interim relief measures, preventive briefs and preliminary enquiries in relation to IP will not be excluded from this preferential treatment.
6. On-line hearings in the period after the suspension is lifted
For a period of up to three months after the suspension is lifted, any appearance, hearing or statement given in any type of trial will “preferably” be conducted on-line, not in person, provided that the courts have the appropriate means.
The Royal Decree-Law does not clarify whether the hearings already scheduled for dates immediately after the suspension is lifted will be held or whether they may be postponed in accordance with the other factors mentioned (the issue of whether or not courts have on-line resources, the additional 20-day period to file appeals, the 3-month period mentioned in the preceding paragraph, or the period up to 31 December for preferential handling of certain proceedings).
7. The possibility of hearings being conducted in the afternoon
For a period of three months, the working timetable of the Justice Administration personnel will cover mornings and afternoons, which could help to expand the schedule for court proceedings, easing delays.
8. Other services not affected
ELZABURU’s previous Statement identified many legal services that we continue to provide with regard to IP and which are not affected by these procedural measures: on-line infringements, customs measures, police actions, extrajudicial claims, investigations, appeals before the Court of Justice, claims in relation to domain names, business and contracts, audiovisual productions, general advice, etc. There is no change in this respect.
9. ELZABURU’s Legal Department team
Since the first day of the lockdown, the team of lawyers and administrative personnel of ELZABURU’s Legal Department has been working for its clients from home, looking after their interests at a time when the impact of the coronavirus crisis affects us all.