17 Apr Territoriality and the Availability of Jurisdiction in the Spanish Legal System

1. Historical Perspective on the Concept of Territoriality and Jurisdiction

In the Spanish litigation model, territoriality acts as the legislative criterion for distributing judicial jurisdiction among courts with the same subject-matter competence, linking proceedings to the territory where the court is physically located. The term “jurisdiction” (fuero), derived from the Latin forum, refers to the place where the judge has their seat and, by extension, the rule that assigns jurisdiction to a specific court based on territorial grounds.

Historically, Spain coexisted with a multiplicity of privileged jurisdictions (fueros)—ecclesiastical, military, commercial, among others—that fragmented the administration of justice.

This situation changed dramatically with the Decree on the Unification of Jurisdictions of 6 December 1868, a milestone of liberalism that significantly reduced the various jurisdictions, limiting them to military, ecclesiastical, and Senate jurisdiction. The aim was to guarantee equality of all citizens before the law and eliminate a system considered incompatible with civil freedom.

2. Territoriality in Criminal Law

In the criminal jurisdiction, Spanish courts are primarily governed by the principle of territoriality, which establishes that criminal laws are binding on all individuals within Spanish territory.

1. Preferred and subsidiary jurisdiction (fuero): The general rule is the locus commissi delicti, i.e., the place where the criminal act is committed. However, there are subsidiary jurisdiction rules when this place is unknown, such as the residence of the alleged offender or the place where material evidence is discovered. There are also specific jurisdiction rules for protective reasons, such as the victim’s domicile in cases of gender-based violence.
2. Principle of personality: As an exception to strict territoriality, Spanish courts may exercise jurisdiction over crimes committed outside national territory if the perpetrators are Spanish nationals (or foreigners who later acquired Spanish nationality), provided that the act is also punishable in the place where it was committed, a complaint is filed in Spain, and the offender has not already been tried abroad.
   
3. Completion vs. exhaustion: The Supreme Court (STS No. 850/2024 of 10 October 2024) clarified that in crimes such as fraud, the place of commission is where the deception and the transfer of assets occur, without prejudice to other criteria depending on the specific case. If these acts occur abroad, Spanish courts lack jurisdiction, unless the principle of personality applies to defendants of Spanish nationality.

3. Territoriality in Civil Law and the Availability of Jurisdiction

Unlike criminal law, where jurisdiction is generally mandatory and non-transferable, civil procedure combines mandatory rules with dispositive rules.

A) Classification of jurisdictions (fueros)

• Mandatory legal jurisdictions (non-available): These are those established by law in a non-waivable manner by the parties, such as those relating to real property (location of the property), inheritance, legal capacity, or matrimonial proceedings. In these cases, the court must examine jurisdiction ex officio.
• Dispositive legal jurisdictions (available): These constitute the general rule (Article 54 of the Spanish Civil Procedure Act, LEC) and allow the parties to agree on the territorially competent court through express or tacit submission. However, this availability is excluded in adhesion contracts involving consumers or users.

B) General jurisdictions

In the absence of mandatory special jurisdictions, the following general rules apply:

• Natural persons: the domicile of the defendant within Spanish territory.
• Legal entities: their registered office or the place where the legal relationship arose or is to produce effects, provided they have an establishment open to the public or an authorised representative there.

4. Fundamental Principle: Perpetuatio Iurisdictionis

A key concept in territorial jurisdiction is perpetuatio iurisdictionis. This principle establishes that once territorial jurisdiction is determined at the time the claim is admitted, subsequent changes (such as changes of the defendant’s domicile or partial withdrawal of claims) do not affect the court’s jurisdiction.

This principle has been fundamental in complex litigation. The Supreme Court has ruled that if a claim is filed at the domicile of one of the co-defendants and later withdrawn against that defendant, the original court retains jurisdiction under perpetuatio iurisdictionis, thus avoiding a “procedural wandering” between courts (Order 71/2020 of the Supreme Court, 13 October 2020).

5. Conclusions

Territoriality in Spain has evolved from historical fragmentation towards a unified jurisdictional system that prioritises public order in criminal matters and the protection of fundamental rights in civil matters. While territoriality in criminal law is almost absolute, civil law allows for the availability of jurisdiction provided that it does not undermine the protection of vulnerable groups, such as consumers, or concern matters reserved by law to mandatory and non-negotiable jurisdictions.