12.3 Judicial institutions
12.3.1 Judicial administration structure
The Spanish Constitution provides that exercise of the judicial power for all types of trials, judgments and enforcement of judgments rests exclusively with juzgados and tribunales as defined by the laws and in accordance with the rules of competence and procedure set forth therein. The term juzgados refers to courts composed of a single judge. The term tribunales refers to collegial bodies composed of at least three judges.
The judicial function is performed solely by professional judges forming part of the judicial service, which is divided into three categories: Supreme Court Justice, Magistrado (Senior Judge) and Judge. Courts in Spain are composed exclusively of judges with judicial training.
The Spanish Judiciary is governed by the General Council of the Judiciary. This body is recognized as having all of the powers necessary to apply the rules governing the exercise of functions performed by members of the Judiciary, particularly in matters pertaining to appointments, promotions, inspections and disciplinary measures.
The Constitution also establishes principles for the governance of judicial activities. One such principle, jurisdictional unity of the National Judiciary, underlies the organization and functioning of all Spanish courts.
The ordinary courts are classified into four jurisdictional divisions: civil, criminal, administrative and social.13 The Supreme Court, with jurisdiction throughout Spain, is the highest judicial body for all of these divisions, except where constitutional guarantees are concerned, for which that position is occupied by the Constitutional Court.
Within each of these jurisdictional divisions, specialized courts have been created by various legislatively authorized means to deal with specific matters. Such is the case for courts specializing in industrial property cases, which are part of the courts specializing in commercial matters and forming part of the civil jurisdictional division.
The Organic Law on the Judiciary14 provides for the establishment, operation and governance of the courts as well as rules governing the exercise of functions performed by members of the Judiciary, including judges and administrative staff. It also regulates the election, composition, powers and operations of the General Council of the Judiciary and the exercise of functions performed by General Council members.
Figure 12.2 The judicial administration structure in Spain
12.3.2 Courts specialized in industrial property
LP-1986 provided for the possibility of patent-related cases (and by extension other industrial property cases) being considered by certain first instance courts (“juzgados de primera instancia” - traditional denomination of the courts of first instance of the civil jurisdictional division). That possibility, however, never materialized in practice.
The real change took place in 2003, with an amendment to the Organic Law on the Judiciary.15 That amendment established one or more commercial courts in each province, with jurisdiction for each entire province. These new courts were assigned competence to hear cases in the first instance relating to a finite list of subject matters that included industrial property, intellectual property, fair competition and publicity. The reform also established a specialized role for the country’s Provincial Courts (second-instance courts within the civil and criminal jurisdictional divisions): that of hearing appeals against decisions by these new commercial courts. These courts began operating in January 2004.
Current patent law in Spain, LP-2015, after entering into force in 2017, carried this specialization process a step further, assigning competence for civil patent cases to specific commercial courts – those located in the autonomous community seats of the country’s High Courts of Justice – the highest courts in each of the country’s autonomous communities (except for cases subject to Supreme Court jurisdiction). The General Council of the Judiciary would previously have conferred exclusive jurisdiction for such matters to the High Courts themselves.
As a consequence of the resolutions adopted by the General Council of the Judiciary, six commercial courts in Madrid, three in Barcelona and one in Valencia have been assigned jurisdiction for civil proceedings concerning patents. There are also commercial courts for Granada, Las Palmas de Gran Canaria, La Coruña and Bilbao.
The “super-specialization” process continued in 2022 for second-instance courts, with another reform of the Organic Law on the Judiciary.16 Under this latest reform, where a Provincial Court has more than one section specialized in commercial cases, the General Council of the Judiciary must distribute competence for specific matters among the sections. Explicit provision was also made for the possibility of creating specialized sections to deal exclusively with intellectual and industrial property, fair competition and publicity.
Only the Provincial Court of Madrid has more than one section specialized in commercial cases. Under the reformed provisions, Section 32 of the Provincial Court of Madrid was assigned sole and exclusive jurisdiction for intellectual and industrial property, fair competition and publicity, the only section so specialized in Spain.
There is no such structured specialization at the Supreme Court level (First Chamber).
Another important change made by the 2022 reform was to assign jurisdiction to Provincial Court sections specialized in commercial cases for appeals against final SPTO rulings on industrial property cases, hitherto subject to administrative jurisdiction.
Courts specializing in commercial cases are composed exclusively of judges with legal rather than technical training.
To ensure that the judges selected for these specialized courts have the necessary knowledge, a selection procedure has been established to qualify successful candidates as “commercial law specialists”. Those so qualified are then given preference when judges are appointed to the specialized commercial courts. Only when there are no commercial law specialists may a non-specialized judge be appointed to these courts.
The selection process consists of exercises to test theoretical knowledge and skill in drafting opinions. Successful candidates are then offered a theoretical-practical training course conducted by the Judicial School of Spain. As an eligibility requirement for participation in this process, judges must have effectively served for at least two years.
Members of the judicial service who are not specialists but do obtain an appointment to a commercial court must participate in specific training activities as determined by the General Council of the Judiciary (an online theoretical course and a theoretical-practical internship with a commercial court).
12.3.3 Relationship between invalidity and infringement proceedings
Within the country’s unitary judicial system, courts competent to hear invalidation cases are the same as those competent for infringement cases, so that a single court can deal with both issues as part of the same proceedings.
It is thus not uncommon for defendants in infringement cases to seek invalidation of an allegedly infringed patent by way of either a defense or counterclaim. In such cases, without prejudice to procedural particularities triggered by invalidation requests (see Section 12.4), the proceedings continue before the same court, which will then rule on both invalidation and infringement as part of the same decision on the merits.
In the event of parallel judicial proceedings, the risk of contradictory rulings is avoided by means of a consolidated process, as provided for in the procedural rules. If such consolidation is not possible, the court hearing infringement proceedings can suspend them until the invalidation proceedings have been concluded.
12.3.4 Judicial training on industrial property
As one of its key functions, the General Council of the Judiciary is responsible for the continuous, in-service training of members of the judicial service, which is provided by the Judicial School. The Continuing Training Service of the Judicial School is charged with ensuring that all members of the judicial service receive high-quality, continuous, individualized and specialized training throughout their careers.
The State Training Plan, developed annually, constitutes the fundamental core of the training activities overseen by the General Council of the Judiciary. It encompasses a wide range of activities, in various formats, covering legal but also related subjects, such as economics and foreign languages. Participation by judges in these activities is voluntary. The Plan includes specific training activities on the subject of industrial property.
The Plan also includes joint training activities with other agencies and entities, including the SPTO.
The Judicial School is part of the European Judicial Training Network, which each year organizes international seminars as well as exchange and study visits to courts in other European Union countries. This includes activities related to industrial property.