Barcelona's Gavi appeal: injunctive relief and filing time limits

Order number 72/2023, which was issued by section 15 of the Barcelona Court of Appeal (Audiencia Provincial de Barcelona) on 6 June, analyses a matter of great practical importance: the calculation of the time limit for filing a lawsuit after an injunction has been granted. The decision had a wider media impact, as it affected the registration of Pablo Martín Páez Gavira, "Gavi", a football player of FC Barcelona in the Spanish Professional Football League.

Interim suspension

After the refusal of the Spanish Football League to register the contract the FC Barcelona had signed with Gavi, the club applied, ante demandam and inaudita parte, for an interim injunction to order the interim suspension of the decision of the Spanish Football League and the defendant to proceed with the registration of the aforementioned contract.

The Barcelona Commercial Court no. 10 granted the interim injunction on 30 January 2023. In order for that measure to be effective, the court ordered FC Barcelona to provide a security deposit of €50,000 within a maximum period of five days.

On 31 January 2023, the order granting the injunction was served on the FC Barcelona's solicitor. On that same day, the plaintiff provided the security deposit and the court issued the summons to the defendant.

Injunction lifted

On 2 March 2023, FC Barcelona filed the statement of claim. The court lifted the interim injunction on the grounds that the claim had been filed after the 20-day time limit set forth in article 730 of the Civil Procedure Law (Ley de Enjuiciamiento Civil) (LEC) had expired.

The court's decision stated that the 20-day time limit started to run on 31 January 2023, that is to say, when, after the security was provided, FC Barcelona's solicitor was served with the summons and complaint, together with a copy of the interim injunction granted on 30 January 2023.

FC Barcelona lodged an application for judicial review arguing that the time limit had started to run on 1 February 2023, that is to say, on the day following the notification of the order to the plaintiff.

The appeal was dismissed by a court order dated 21 March 2023. The court considered that a distinction must be made between the notification of the order granting the interim injunction and the enforcement of the order as set forth in Article 730 LEC.

The judge of first instance argued that the interim measure is not to be "adopted" until, the surety, which acts as a suspensive condition, has been provided. It is at this point that the measure becomes effective. In this case, although the notification took place on 1 February (that is to say, the day after it was sent via Lexnet), the surety had been provided the day before (on 31 January) and, therefore, the 20-day time limit began to run on 31 January and not on 1 February.

FC Barcelona appealed, and section 15 of the Barcelona Court of Appeal was seized of the matter.

Decision of the Barcelona Court of Appeal

The Barcelona Court of Appeal allowed the appeal presented by FC Barcelona on the following grounds:

• According to the Court of Appeal, the Spanish LEC refers indistinctly to the terms "adopt" and "agree", which have the same meaning. Both are used to express that the measure is granted and, therefore, the interim measure is regarded to be adopted from the moment the order is issued. However, it will not be effective until surety is provided.
• It is true that, in exceptional cases, the time lag between the moment the court order granting the measure is issued and the moment the order becomes effective has been used as an argument to try to extend the 20-day time limit for filing a claim. However, the Barcelona Court of Appeal understands that the 20-day time limit must be counted from the date of notification of the order to the claimant (through his solicitor); taking into account, for these purposes, that the notification is considered to be valid on the day following its receipt (article 151.2º LEC) and that the time limit also starts to run from the following day (article 133 LEC).

Osborne Clarke comment

The decision under examination confirms that, regardless of when the interim measure is enforced, this is regarded to be adopted at the moment the order granting the injunction is passed. The Barcelona Court of Appeal makes it clear that this is the only valid interpretation to determine the dies a quo of the 20-day time limit provided for in article 730.2 LEC.

In the court's opinion, it is not appropriate to make the "artificial distinction" between the notification of the order and its adoption, and even less so if this entails, de facto, shortening the legal deadline for filing a lawsuit.