A request of recognition in Spain of a Danish Bankruptcy proceeding could be possible due to the interpretation of the Spanish Courts about the law applicable.
The Regulations of the European Union are inserted in the Spanish legal frame as domestic law, so its application may be possible despite the special condition of Denmark.
Denmark position on the Regulation 1346/2000
Denmark has a special position inside the EU in relation to the application of its Regulations as Denmark can decide if applying a Regulation or not.
In our case, Denmark has not used the option to sucribe to the Regulation 1346/2000 so in theory, this Regulation should not be applied on recognition of bankruptcy resolutions received from Denmark.
Application of the Regulation in Spain
In Spain, in case of the no application of the EU Regulation, there is a legal mechanism for the recognition of foreign resolutions. This process is called “exequatur”, and it is similar but not so flexible than the regime provided by the EU regulation.
To avoid problems with traditional “exequatur” (mainly obligation of reciprocity) some Spanish Courts are considering the EU Regulation as domestic law in conjunction with the Spanish Bankruptcy Law and applies it indifferently if the other country ratified or not the Regulation.
“Unfortunately, we cannot affirm that this is a general rule of Spanish judges meaning that every judge applies it strictly in Spain, however, we can attest, from our experience, that a majority of judges are applying this criterion”
Requirements for the recognition
There are some requirements that the Spanish Courts consider compulsory to accept a resolution from Denmark (an example of this is a resolution we have obtained from the Commercial Court of Murcia nº 1 on February 03rd 2015).
The requirements are mainly the ones provided by the EU regulation:
- A list of the creditors from the debtor.
- The Resolution pronounced in Denmark with its corresponding translation.
- Special power of attorney to request the bankruptcy recognition proceeding.
- A list of the assets located in Spain.
As conclusion we can say that there is a chance that a Danish Resolution may be recognized in Spain using the EU Regulation and, as a conse-quence, it can display all its effects in Spain such as disposal of the estate’s assets.