A plenary session in the 4th Chamber of the Supreme Court took place on 05/06/2013, referring to, amongst other things, THE EMPLOYEES WHO ARE EXCLUDED FROM PAYING FEES IN EMPLOYMENT TRIBUNALS.

The High Court began its argument with article 119 of the Spanish Constitution which states that “Justice shall be free when thus provided for by law, and shall in any case be in respect of those who have insufficient means to sue in court.”

This right oflegal aid is set out in Act 1/1996 of 10th January, with article 2 setting out its scope of application, establishing in d) that this benefit will be had regardless of any lack of resources….

d) In employment proceedings, employees and Social Security system beneficiaries, both for the defence at trial as well as actions guaranteeing workers’ rights in bankruptcy proceedings.

Additionally, the right to Legal aid for employees and Social Security system beneficiaries is recognised for administrative disputes.

In this way it assumes the traditional regulation of this right which was contained before in article 25.3 of the old Employment Procedure Law, which was expressly repealed by the Law 1/1996.

Moreover, article 3.1 of the Legal Aid Act (LAJG) recognises this benefit stating that those who have insufficient resources are within its scope.

Thus, employees and those recipients of Social Security have the benefit of legal aid, and those who have insufficient funds are recognised as having these benefits too.

Act 10/2012 of 22 November, concerning the regulation of fees in the area of the Administration of Justice and the National Institute of Toxicology and Forensic Science, came into force on 22 November of this year.

The preamble of the Act states that “the regulation of judicial fees is not just ….merely an economic question, but also a procedural one” and this is evident from its regulation. In this way, we can say that if the non-payment of fees prevents the trial being conducted, this is certainly not just about money, but an economic requirement determining effective judicial protection, guaranteed by article 24 of the Spanish Constitution, which requires a restrictive interpretation of the procedural rules in play.

Article 1 refers to the scope of the application of fees for exercising judicial powers (if understanding ‘promoting’ as exercising) and states that civil, administrative and employment matters have state support and are equally enforceable throughout the nation in the cases provided in this Act, subject to fees and other charges that may be required by the Communities.

Article 2 states that charging a fee in these matters is triggered by the following procedural steps:

f ) The lodging of an appeal in an employment tribunal.

For its part, article 4.2 a) of Act 10/2012 establishes that, from a subjective point of view, the following are exempt from the fee:

a) Persons who have been granted the right to free legal assistance, proving that they fulfil the requirements for them to be accordance with the regulation.

In paragraph 3, it provides that “in Employment Tribunals, employees, whether employed or self-employed, have a 60% exemption in the amount of fees they pay filing for an appeals to immediately superior courts and cassation appeals”. At no time are the beneficiaries of the Social Security system mentioned.

In applying such rules you could in principle argue that, while the LAJG envisioned an automatic or independent benefit to those employees with insufficient means, this benefit can be seen as repealing that which is found in Act 10/2012. If employees are faced with only a partial exemption, paying 60% of the fee, it is actually in part modifying or annulling this automatic or complete benefit in question.

We now need to analyse the impact that all of this has had on the Royal Decree 3/2013 of 22 February, with the modification of the regime of fees in the area of Administration of Justice or the Legal Aid system.

This initial approach discussed above has been absolutely and profoundly altered by this law coming into force (24th February 2013), and since that date we can conclude that, in principle and without prejudice, employees and beneficiaries of the Social Security system “return” to having the benefit of legal aid under the terms provided in Article 2 of Act 1/1996, for the following reasons:

Article 2 of the RDL amends some provisions of the LAJG without altering anything that relates to employees and social security beneficiaries having the benefit of legal aid, and it automatically extends to other persons, independent of their level of resources, such as victims of gender-based violence, terrorism and human trafficking in proceedings which are linked to, derive from, or are the consequence of their status as victims, as well as minors and the mentally disabled if they are victims of abuse or mistreatment.

Furthermore, it extends to persons who, as a result of an accident, evidence the existence of permanent after-effects which completely prevent them from performing the tasks associated with their usual employment of professional occupation and who need the assistance of others to carry out the most basic activities in their day-to-day life, if the subject matter of the lawsuit is indemnification for personal injury and emotional distress.

On the other hand, in a fully consistent manner the RDL 3/2013 has modified the material contents of the right to legal aid, so that it changes the scope of deposits made, as well as the fees.

As it says in the new article 6 LAJG, following the wording of RDL 3/2013, “the right to free legal aid includes the following features:

5. Exemption from the payment of court fees, as well as the payment of deposits required for appeals”.

At this point it is important to pause for a moment. If before the RDL 3/2013, and in the light of Act 10/2012, doubts could exist on the partial demise of legal aid to employees and beneficiaries on the border of not having enough resources to litigate, TODAY, AFTER THE REWRITTEN LAJG HAS COME INTO FORCE BY THE RDL 3/2013, THERE IS NO DOUBT ABOUT THE INTERPRETATION OF BOTH NORMS THAT HAS LED TO THE CLAIM THAT THE LEGAL AID SYSTEM ESTABLISHES THAT WORKERS (and by extension the beneficiaries of the Social Security system, who have the same benefit) DO NOT HAVE TO PAY ANY FEES FILING AN APPEAL.

THIS INTERPRETATION COINCIDES WITH THE EVALUATIONS OF THE MINISTRY OF JUSTICE MADE ON 14TH MARCH 2013 IN THE CONGRESS OF DEPUTIES FOR THE EVENTUAL RECOGNITION OF RDL 3/2013, IN THE SENSE THAT THE EMPLOYEES DON´T PAY FEES IN ANY CASE OR APPEAL (page 29 of the Journal of Sessions of the Congress of Deputies).

Going a step further than this, faced with the doubt in the transitional period between Act 10/2012 going into force (November 22, 2012) and the date of inception of RDL 3/2013 (February 24 2013), it may have resulted in fees for the employees, even with the partial exemption. It must then be said that the RDL 3/2013 contains a rule of extension of the fees accrued beforehand, with the first transitory provision establishing that: “the rules of this Royal Decree shall also apply in relation to the recognition of the right to legal aid in respect of the payment of court fees accrued conforming with the Act 10/2012 of 20th November”.

From this we can deduce that, the benefit of legal aid, now legal and now adapted, will have the effect of exempting fees even if they were generated before the RDL came into force, leading to lawfully exempting fees generated from 22nd November 2012 for the employees.

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