Ley Orgánica 6/1985, of 1 July, del Poder Judicial (LOPJ) is the legislation organising the structure of the Spanish justice system and defining the rules of the game for any citizen, business person or entity that has to deal with a court or tribunal in Spain. Knowing this statute is not necessary in order to bring a claim — that is the job of your lawyer — but it is relevant for understanding before which body one is litigating, what appeals are available and how the judiciary that will resolve your matter is organised.
Organisation of the Spanish Judiciary
The LOPJ establishes a pyramidal structure of judicial bodies, with the Supreme Court at its apex. Working upwards from the base:
First Instance and Investigating Courts
These are the entry points to the judicial system. The First Instance Courts hear ordinary civil and commercial matters. The Investigating Courts investigate offences and resolve interim measures in criminal proceedings. In municipalities without their own judicial district, Justices of the Peace act, with very limited jurisdiction.
Specialised courts
Over the years, the LOPJ has created specialised courts for matters requiring specific technical knowledge:
- Commercial Courts (art. 86 ter LOPJ): created by Ley 8/2003, they hear insolvency proceedings, company law, industrial and intellectual property, unfair competition and misleading advertising.
- Administrative Courts (art. 90 LOPJ): resolve challenges against public authority acts within their territorial competence.
- Employment Courts (art. 92 LOPJ): first instance in employment and social security matters.
- Courts on Violence against Women (art. 87 ter LOPJ): exclusive jurisdiction over offences and civil conflicts related to gender-based violence.
- Penitentiary Surveillance Courts: supervision of sentence enforcement and control of the prison system.
- Central Investigating Courts: investigation of criminal cases before the National Court.
Provincial Courts
Provincial Courts (art. 82 LOPJ) are the second ordinary level. They have their seat in each provincial capital and, in major cities, have specialised sections in civil and criminal matters. In civil matters, they hear appeals against first-instance judgments. In criminal matters, they are the adjudicating court for the most serious offences.
Superior Courts of Justice
The TSJ (art. 70 LOPJ) is the highest jurisdictional body of each autonomous community. They hear cassation appeals where regional civil foral or special law applies, administrative appeals in certain matters and suplicación appeals in employment. TSJ presidents are, alongside the President of the National Court, the highest-ranking magistrates outside the Supreme Court.
National Court
The National Court (art. 62 LOPJ) is a national-level tribunal with jurisdiction over offences of special significance: terrorism, large-scale drug trafficking, major tax fraud and complex economic offences affecting several provinces. Its Administrative Chamber hears appeals against acts of the General State Administration.
Supreme Court
The Supreme Court (art. 53 LOPJ) is the highest judicial body in all orders, with its seat in Madrid. It has five Chambers: First (Civil), Second (Criminal), Third (Administrative), Fourth (Social) and Fifth (Military). Its essential function is the unification of doctrine through cassation appeals. Supreme Court judgments create binding case law, in the sense that their doctrine is applied repeatedly by lower courts.
The General Council of the Judiciary
The CGPJ (arts. 107-145 LOPJ) is the constitutional body governing the judiciary, separate from the Ministry of Justice, which belongs to the Executive. Its existence guarantees the institutional independence of the Judiciary.
Composition
The CGPJ is composed of twenty members and a President. Twelve members are appointed from serving judges and magistrates; eight are lawyers of recognised competence appointed by the Congress (4) and the Senate (4). The President is proposed by the CGPJ itself and appointed by the King: historically they coincide with the President of the Supreme Court.
Main functions
- Appointment of Supreme Court magistrates, TSJ presidents and Provincial Court presidents.
- Promotions and transfers of judges and magistrates at the higher levels of the seniority ladder.
- Inspection of courts and tribunals: the CGPJ may order inspections to verify correct functioning and delays in case resolution.
- Disciplinary authority over judges and magistrates: it may impose sanctions from reprimand to dismissal from service.
- Adoption of internal regulations on court organisation and duty rota.
- Publication of quarterly judicial statistics: these are the official source for average resolution times by jurisdictional order and judicial district.
Jurisdiction of tribunals: articles 81-82 LOPJ
Articles 81 and 82 LOPJ establish the objective jurisdiction rules for Provincial Courts. Article 81 assigns to the Provincial Court second-instance jurisdiction over matters resolved by the First Instance and Commercial Courts in their district. Article 82 details first-instance jurisdiction in criminal matters.
In civil and commercial matters, the distribution of objective jurisdiction between the First Instance Court and the Commercial Court is determined by subject matter, not amount. Article 86 ter LOPJ assigns to the Commercial Court:
- Insolvency proceedings and actions derived therefrom.
- Challenge to company resolutions, director and shareholder liability.
- Actions relating to standard terms.
- Industrial property: patents, trademarks, industrial designs.
- Intellectual property: copyright and related rights.
- Unfair competition, misleading advertising and competition law (within the terms of the LCCA).
- Road freight contracts (other than employment-related).
Everything else — ordinary contracts, monetary claims between companies not involving specialised commercial matters, tenancies, extra-contractual liability — falls to the First Instance Court.
The Public Prosecutor and its relationship with the Judiciary
The Public Prosecutor (arts. 124 CE, 541-560 LOPJ) is a constitutional body with functional autonomy integrated organisationally in the Judiciary, but with full functional independence. Its mission is to promote the action of justice in defence of legality, citizens’ rights and the public interest. In criminal proceedings, the Prosecutor is the public accuser; in civil proceedings, it intervenes in matters affecting the civil status of persons, minors and persons with disabilities. The Attorney General is proposed by the Government and holds the rank of Supreme Court magistrate.
Access to justice for companies: practical aspects
Mandatory representation
The LOPJ and procedural statutes require, as a general rule, representation by a Solicitor (Procurador) and assistance from a Barrister (Abogado) in proceedings before courts and tribunals. Only before Justices of the Peace and in certain minor proceedings (such as payment orders up to €2,000) may parties act on their own behalf.
Costs
Article 394 LEC provides that costs are awarded against the party that loses the proceedings, unless the case presented serious factual or legal doubts. In complex commercial cases, assessment of ‘serious doubts’ is a frequent source of dispute. Costs include the opposing party’s barrister and solicitor fees and expert charges, but not one’s own legal fees.
Interim protection
Arts. 721-747 LEC, developing the LOPJ provisions on interim powers, allow applications for interim measures to secure the effectiveness of the future judgment: preventive attachment, registration of claim, suspension of company resolutions, judicial administration of assets. Interim protection requires establishing fumus boni iuris (apparent good right) and periculum in mora (risk that without the measure the judgment will be rendered ineffective).
How we can help
Knowledge of the judicial structure is the starting point for designing an effective litigation strategy. At BMC, our legal team analyses in each case which court or tribunal has jurisdiction, which jurisdictional order is most favourable to the client’s interests, what appeals are available and within what deadlines they must be filed.
Our commercial contracts and employment law services include representation in proceedings before the Commercial Courts, First Instance Courts and Employment Courts, as well as accompaniment in higher instances where the case is of interest for the unification of doctrine.
