14. Searching for Foreign Administrative Acts in Spanish Law

In the field of taxation, Art. 34 of Law 58/2003, of 17 December, regulates the so-called “rights of tax debtors”.

The reference of the sentence can be consulted at http://​curia.​europa.​eu/​jcms/​upload/​docs/​application/​pdf/​2014-05/​cp140069es.​pdf.

“In accordance with the guidelines established by the Anti-Money Laundering Commission, the Executive Service of the Commission and, as applicable, the Secretariat of the Commission shall cooperate with the authorities of other States who carry out analogous functions. The exchange of information will be governed by the provisions of the relevant International Conventions and Treaties or, as the case may be, by the general principle of reciprocity, as well as by the subjugation of these foreign authorities to the same obligations of professional secrecy that are applicable for Spain.

The exchange of information between the Executive Service of the Commission and foreign Financial Intelligence Units will be carried out in accordance with the principles of the Egmont Group or in the terms of the corresponding memorandum of understanding. The memoranda of understanding with Financial Intelligence Units will be signed by the Director of the Executive Service, having received prior authorization from the Anti-Money Laundering Commission.

The exchange of information between the Executive Service of the Commission with Financial Intelligence Units of European Union states shall be carried out in accordance with the Council Framework Decision 2000/642/JHA, of 17 October 2000, concerning the provisions for cooperation between the Financial Intelligence Units of the member States for the exchange of information, or by the norm that substitutes it”.

We have not included in this list Council Framework Decision 2005/214/JHA, of 24 February, on the application of the principle of mutual recognition of financial penalties because it only refers, as provided in Art. 1 of Law 1/2008 which transposes it to the Spanish system, to the sanctions imposed as a result of committing a criminal offense, which must be understood as those imposed by judicial or administrative authorities, provided that the resolution “could have been appealed before courts with jurisdiction in criminal matters” which, as can be clearly seen, is not the case of the administrative sanctions that can be appealed, in the case of Spain, before the contentious-administrative jurisdiction or before the criminal one.

Procedure regulated in Art. 39–44 of RD 1829/1999, of 3 December.

According to which “the duly concluded international treaties, once they have been officially published in Spain, will become part of the internal system”.

In fact, one of the criticisms made by the doctrine that has studied these issues is the existing confusion regarding the actual concept of “act” and the tendency to confuse it with other different concepts, such as judgment and document. The lack of precision in the use of the concepts has led to a complex distinction of the various recognition problems that each one entails.

See for example, the order of 16 April 1990 on the legalization of Spanish academic documents that are meant to be effective abroad (Official State Gazette of 19 April), which regulates the procedure for the recognition of signatures of the Spanish educational authorities as a prior requirement to their legalization.

See extensively Moreno Catena, V., La ejecución forzosa, en La nueva Ley de Enjuiciamiento Civil, t. IV, Madrid, 2000.

In addition to the Hague Convention of 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, see Royal Decree 2433/1978, of 2 October, which determines the officials who are competent to perform the single legalisation or Apostille provided for in the XII Hague Convention of 5 October 1961, appointing the Ministry of Justice as the competent authority to perform the Apostille; and Order JUS/1207/2011, of 4 May, which creates and regulates the electronic registration of Apostilles by the Ministry of Justice and regulates the procedure for the issuing of Apostilles on paper and electronically.

This Apostille can be applied to documents arising from an authority or civil servant linked to a State jurisdiction, including those from the Public Prosecutor’s Office or a secretary, judicial officer or agent; in administrative documents; and in official certifications that have been placed on private documents, such as the certification of registration of a document, the certification on the certainty of a date and the authentications and notary official signatures on documents of a private nature. However, it shall not apply to documents issued by diplomatic or consular officials, or to administrative documents directly related to a commercial or customs transaction.

The Hague Apostille can be requested by anyone who wishes to certify the authenticity of a public document. For apostilles in electronic format, citizens, after making the request before the relevant competent authority, can download the Apostille via the Electronic Headquarters of the Ministry of Justice.

Royal Decree 1497/2011, of 24 October, determines the officials and authorities competent to perform the single legalization or Apostille provided for in the XII The Hague Convention on Private International Law, 5 October 1961. Depending on the nature of the public document in question, in Spain there are three “Apostille authenticating authorities”, whose competence for each case in particular is established as per the following rules:

Article 11 of the Civil Code:

1.

The forms and solemnities of contracts, wills and other legal acts shall be governed by the laws of the country in which they are granted. However, those celebrated with the forms and solemnities required by the applicable law regarding their content will also be valid, as well as those celebrated in accordance with the personal law of the expeditor or the common law of the grantors. Likewise those acts and contracts relating to real estate granted in accordance with the forms and solemnities of the place in which they reside will also be valid.

If such acts were granted on board vessels or aircrafts during their navigation, they shall be understood to be held in the country of the vessel’s flag, license or registration. Military ships and aircrafts are considered as part of the territory of the State to which they belong.

 

2.

If the law regulating the content of acts and contracts requires for their validity a particular form or solemnity, it will be always applied, even in the case of their being granted abroad.

 

3.

The Spanish Law will be applicable to contracts, wills and other legal acts authorized by diplomatic or consular officials from Spain abroad.

 

See: D. Liñán Nogueras, “Efectos de las Sentencia del Tribunal Europeo de Derechos Humanos y Derecho Español”, in REDI, Vol. XXXVII 1985/2, p. 367; M. J. Agudo Zamora, “La interpretación de los derechos y libertades constitucionales a través de los Tratados Internacionales: La técnica del artículo 10.2”, in Estudios Penales y Jurídicos. Homenaje al Prof. Dr. Enrique Casas Barquero (coord. por Juan José González Rus), Córdoba, 1996, pp. 38 et seq.; J. Ruiz-Giménez Cortés, “Artículo 10. Derechos fundamentales de la persona”, in Comentarios a las leyes políticas. Constitución española de 1978, Vol. II, p. 137.

See a general work on this matter in A. Diaz Gomez, “ El modelo de responsabilidad criminal de las personas jurídicas tras la Ley orgánica 5/2010”, Revista electrónica de Ciencia Penal y Criminología,13/08/2011: “ … there has been an extensive discussion on the political-criminal desirability of the criminal punishment of legal persons, on the possibilities of applying a societas delinquere potest model in the modern European systems and on the dogmatic disadvantages and problems that can be found along the way. Beyond these considerations, whose tenets can be found in numerous published works, at the present time, the problem seems to have overcome the dogmatic debate—at least partly—to move on to a more practical level. This is also substantiated by the very recent paradigm shift experienced by our Criminal Law, resulting from the reform of the Penal Code carried out in 2010. Now legal persons may commit a crime in the strict sense and consequently it will be possible to impose penalties for this reason. This closes, at least on paper, the old discussion on whether the Spanish Legal System should forget about the traditional legislative model based on societas delinquere non potest and the debate on the most appropriate method to do so. As it happens, it will no longer be necessary to insist on searching for the criminal liability of legal persons through precepts such as 31, 31.2 or 129 of the Penal Code, because, as stated in the preamble of Organic Law 5/2010, now “the criminal liability of legal persons is regulated in detail”.

It is precisely the preamble which recognizes that under the current regulation the many international legal instruments that demand a penal response to legal persons have turned out to be of great importance, especially in the business field. Similarly, within the European Union, the legislation has been urging the States in one way or another to take the appropriate measures in its domestic Law for the punishment of legal persons. The trend, which has also involved Spain, is the progressive expansion of the model of criminal liability of legal persons across Europe”.

Royal Decree 967/2014, of 21 November, which lays down the requirements and the procedure for the accreditation and statement of equivalence of formal qualification and to official university academic level and for the validation of foreign higher education studies, and the procedure for determining the correspondence to the levels of the Spanish qualifications framework for higher education of the official degrees of Architect, Engineer, Graduate, Technical Architect, Technical Engineer and Three-year Graduate Degree (“Diplomado”).

Article 5. “Effects of the accreditation and equivalence for degrees to official university academic level:

Driving licenses issued in any member State of the European Union or in States party to the Agreement on the European Economic Area (Norway, Iceland and Liechtenstein) in accordance with Community law will remain valid in Spain, under the conditions which they were issued in their place of origin, with the proviso that the minimum age for driving corresponds to the one required to obtain the equivalent Spanish license.

However, driving licenses issued by any of those States that are restricted, suspended or withdrawn in any of them or in Spain will not be valid for driving in Spain.

The holder of a driving license issued in one of these States who has obtained their normal residence in Spain, will be subject to the Spanish provisions relating to its period of validity, for the control of their psycho-physical skills and for the allocation of credit points.

In the case of a driving license not subject to a period of specific validity, holders shall proceed to its renewal, 2 years after having established their normal place of residence in Spain.

There is an exchange agreement with the following countries: Democratic and Popular Republic of Algeria, Republic of Argentina, Republic of Bolivia, Republic of Chile, Republic of Colombia, Republic of Ecuador, Kingdom of Morocco, Republic of Nicaragua, Republic of Peru, Dominican Republic, Republic of Panama, Republic of Paraguay, Republic of Uruguay, Bolivarian Republic of Venezuela, in the Federative Republic of Brazil, Republic of El Salvador, Republic of the Philippines, Republic of Guatemala, Republic of Serbia, Turkey, Tunisia, Ukraine, Macedonia.

The requirements for driving licenses from Andorra, Korea, Japan, Switzerland and Monaco are: certification of identity and residence, going to a centre for the recognition of drivers for the issuance of a report regarding psycho-physical aptitude and having a valid driving license. Interested parties must submit a written statement of not being legally deprived of the right to drive motor vehicles and motorcycles, or legally banned or suspended from their driving license, as well as declaration of not being the holder of another driving permit or license, whether it has been issued in Spain or in another EU country, of the same class as the one requested.

In the case of permissions from Korea and Japan also requires, an official translation of the permission.