Effects of the Spanish Transitional Regime on judicial cooperation between the UK and Spain in the event of a hard Brexit

Royal Decree Law 5/2019: Effects of the Spanish Transitional Regime on judicial cooperation between the UK and Spain in the event of a hard Brexit

On 1 March 2019, the Spanish Council of Ministers approved Royal Decree Law 5/2019 (“RDL 5/2019”) by means of which contingency measures were adopted for the potential exit of the United Kingdom (“UK”) from the European Union (“EU”) without the agreement provided for in Article 50.2 of the European Union Treaty. RDL 5/2019 was published in the Spanish Official Gazette on 2 March 2019.

On 14 November 2018, the European Commission and the UK agreed upon the terms of the so-called withdrawal agreement, aimed at regulating the terms of the exit of the UK from the EU (“Withdrawal Agreement”). After the European Council’s endorsement of the same, all necessary steps have been taken to ensure that the Withdrawal Agreement enters into force on 30 March 2019.

An essential step is the UK’s ratification of the Withdrawal Agreement. However, given the continued uncertainty with regard to this ratification, the EU and its Member States are adopting contingency measures for two possible scenarios: (i) the exit of the UK in accordance with the terms agreed in the Withdrawal Agreement after the relevant transition period, that is, a “soft Brexit”; or (ii) the exit of the UK with no transition period, or a so-called “hard Brexit”.

The Spanish Government, in line with the position taken by other EU Member States, has issued RDL 5/2019, in order to put in place potential contingency measures in case of a hard Brexit. The purpose of this is to facilitate the transition to the new relationship between Spain and the UK with regard to issues such as citizenship, employment, healthcare, education, financial services, customs, public tenders, authorisations and licences, transportation and judicial proceedings.

As far as the impact on judicial issues is concerned, RDL 5/2019 includes several measures to avoid potential difficulties that a hard Brexit may entail regarding (i) the notification of parties in Spain regarding UK proceedings, and (ii) the enforcement and recognition of UK judicial resolutions by Spanish courts.