Spain

Status

Adopted

Explanatory note re status

The Omnibus Directive has been already implemented into the Spanish legal system through the Royal Decree-law 24/2021. Royal Decree-laws are a legal mechanism used by the Spanish government in cases of urgency (i.e., passed without parliamentary debate for e.g., deadlines for the transposition of an EU Directive).

This Royal Decree-law amends several Spanish laws, among others (and for the purposes of this tracker):

• The Royal Legislative Decree 1/2007, of November 16, 2007, adopting the revised text of the General Law for the Defense of Consumers and other complementary laws (the “Spanish Consumers Act”);
• Law 3/1991, of January 10, 1991, on Unfair Competition (the "Spanish Unfair Competition Act"); and
• Law 7/1996, of January 15, 1996, governing retail trade (the "Spanish Retail Trade Act").Implementation Act

As required by the Omnibus Directive, the new rules have come into force on 28 May 2022.

Implementation Act

Royal Decree-Law 24/2021, of 2 November, on the transposition of European Union directives on covered bonds, cross-border distribution of collective investment undertakings, open data and re-use of public sector information, the exercise of copyright and related rights applicable to certain online transmissions and to radio and television broadcasts, temporary exemptions for certain imports and supplies, for consumers and for the promotion of clean and energy-efficient road transport vehicles.

(Envisaged) Implementation Date

This Royal Decree-Law came into force the day after its publication on 3 November 2021

The section referring to the amendments introduced into the Spanish Consumers Act, the Spanish Unfair Competition Act and the Spanish Retail Trade Act have entered into force on 28 May 2022 as required by the Omnibus Directive. 

Approach to implementation

Amendments to existing laws (see "Implementation Act" section).

Next steps

N/A 

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented? 

According to the amendments implemented into the sanctioning regime of the Spanish Consumers Act pursuant to the Omnibus Directive (Articles 46 to 52), financial penalties may be imposed up to EUR 1,000,000 for very serious infringements. This limit may be exceeded up to an amount equal to six to eight times the benefits obtained pursuant to the infringement.

Ancillary penalties may be imposed, namely:

• The closure of premises or services for a maximum term of 5 years in case of very serious infringements;
• The seizure of products that may entail a risk for consumers; or
• The advertising of the penalties imposed once they are firm, including corporate name of legal persons and the name and surname of natural persons.

Widespread infringements and infringements with a Union dimension sanctioned pursuant to Regulation (EU) 2017/2394 may result in penalties up to 4% of the annual turnover of the offender in Spain or in the Member States in which the infringement was committed for very serious infringements (in force from 28 May 2022).

Where a trader’s annual turnover is not available, member states shall introduce the possibility to impose fines, the maximum amount of which shall be at least EUR 2 million.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

According to the amended Art. 20 para. 1 of the Spanish Retail Trade Act, the main rule is that, when a product is offered with a price reduction, the seller shall indicate the reduced price along with the lowest price applied to identical products during the previous thirty days.

The following exceptions apply to this rule:

• This rule shall not apply regarding new products offered for the first time (in the Spanish market); and
• Prices applied for the purpose of avoiding food waste on identical products whose "expiration" or "best-before" dates were near shall not be considered to assess the reference price.

Please note that a similar rule was already applicable in Spain before the enactment of the Omnibus Directive and the Spanish transposition thereof, in the sense that the seller would be obliged to indicate the reduced price along with the lowest price applied during the previous thirty days, except for new products. The only material novelty is the exception regarding "food waste".

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

Infringements of consumer rights related to the indication of the prices of products offered to consumers would be considered a minor infringement of the Spanish Retail Trade Act, which may be punished with an administrative fine up to EUR 6,000.

However, recurrence in committing such infringements may lead to the imposition of serious or very serious infringements, punished with fines ranging from EUR 6,000 to EUR 30,000 and EUR 30,000 to EUR 900,000 respectively.

Sanctions imposed pursuant to a commercial practice or products commercialised shall entail the seizure of the relevant goods.

The third recurrence of very serious infringements may entail the temporary closure of premises, for a maximum period of one year.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

The term product has been interpreted so broadly in the past that digital content and services were already considered as falling under the category of "products" under Spanish law.

In this sense, the Spanish Unfair Competition Act has not been modified as consequence of this amendment.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Art. 26 of the Spanish Unfair Competition Act now qualifies as unfair competition (for being misleading) those practices carried out by traders in which those traders provide consumers with results to their online searches without stating that some results obtain a better ranking pursuant to payments made by the providers of the goods or services shown in those results.

In addition, please note that Art. 3 para. 4 (b) of the Omnibus Directive has been implemented through Art. 20 para. 3 of the Spanish Consumers Act, requiring traders “providing consumers with the possibility to search goods and services offered by other traders or consumers, based on the consultation through a keyword, expression or other type of information entered by the consumers, regardless of where the transaction is ultimately concluded” to provide consumers with information on “the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters”, in a section easily and directly accessible from the specific page in which the results are shown.

This obligation shall not apply to online search engines as defined in Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (the "P2B Regulation").

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

The transparency obligations have been implemented through amendments to the Spanish Consumers Act.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

The new paragraph 7 of Art. 19 of the Spanish Consumers Act grants the public administration the power to further develop legislation in order to restrict certain forms and aspects of non-solicited doorstep selling and commercial excursions (still to be developed).

Furthermore, under the new paragraph 4 of Art. 31 of the Spanish Unfair Competition Act non-solicited doorstep selling and commercial excursions not complying with the restrictions enacted pursuant to new paragraph 7 of Art. 19 of the Spanish Consumers Act are considered aggressive commercial practices.

In addition, the amended Art. 102 para. 1, second paragraph of the Spanish Consumers Act extends the withdrawal period for contracts concluded pursuant to non-solicited doorstep selling and commercial excursions to 30 calendar days.

Infringements of these rules may be punished with fines between EUR 150 and 10,000 (the limit may be exceeded to up to two to four times the unlawful benefit obtained).

V. What transparency obligations must traders who publish consumer reviews now comply with?

The amended Art- 20 para. 4 of the Spanish Consumer Act provides that all commercial practices in which a trader provides access to consumers' reviews of goods and services must contain information on whether or not the trader guarantees that the published reviews have been made by consumers who have actually used or purchased the good or service. To this end, the trader shall provide clear information to consumers and users on how the reviews are processed.

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

It will be considered a misleading practice to market a good as identical to a good offered in another EU Member State if the goods differ substantially and such difference cannot be justified by legitimate and objective factors or be clearly recognisable to the consumer. This is implemented in the amended Art. 5 para. 3 of Spanish Unfair Competition Act.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Art. 19 to 31 of the Spanish Unfair Competition Act list the different types of unfair commercial practices that may be carried out against consumers.

In addition to actions for the compensation of damages, consumers shall be entitled to bring actions envisaged in Art. 32 of the Spanish Unfair Competition Act (e.g., rectification of misleading informations) against traders before civil courts.

Please note that some of the articles referred to above have not been amended as a result of the Royal Decree Law 24/2021.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

According to Art. 47 (m) of the Spanish Consumers Act, unfair commercial practices against consumers are considered minor infringements which can be sanctioned with fines from EUR 150 to 10,000 (with the possibility to exceed this limit by applying a fine of up to two to four times of the illicit benefit obtained, as per Art. 48 and 49 of the same Act). They may be qualified as serious or very serious infringements in case of aggravating circumstances according to Art. 48 para. 3 of the Spanish Consumers Act in which case penalties can amount to up to EUR 1,000,000.

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements as well as digital content and digital services will be subject to the same rules as all other goods and services covered by the Spanish Consumers Act. For goods with digital elements and digital content and digital services, however, additional information requirements for traders apply. These have been implemented into:

1. Art. 97 of the Spanish Consumers Act (for distance and off-premises contracts):

• where applicable, the functionality of the goods with digital elements or of the digital content or service, including applicable technical protection measures; and
• where applicable, the compatibility and interoperability of the goods with digital elements or digital content or service, to the extent that this information is known or ought to be known by the trader.

2. Amended letters (e), (i) and (j) of Art. 60 para. 5 of the Spanish Consumers Act (pre-contractual information for any type of contract):

• In addition to the reminder of the existence of a legal warranty of conformity for goods and services and also for digital content and services, the existence and conditions of after-sales services and commercial warranties;
• the functionality of the goods with digital elements or of the digital content and service, including applicable technical protection measures such as protection through digital rights management or regional encryption; and
• Any relevant compatibility and interoperability of the goods with digital elements, digital content and digital services known or reasonably expected to be known to the trader, such as, but not limited to, the operating system, the required version or certain elements of the physical media.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, Art. 59 of the Spanish Consumers Act extends the scope of application to contracts by which the trader provides (or promises to provide) digital content or services in exchange for consumers' personal data, save for the cases in which that personal data is processed by the trader exclusively for the provision of the digital content or service (being the subject matter of the contract) or to fulfil its own legal obligations.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

New information obligations and formal requirements for distance or off premise contracts have been implemented to Art. 97 of the Spanish Consumers Act, as follows:

• Traders are no longer required to provide a fax number but must still provide its geographical address, telephone number and email address, and –where applicable– the address and identification information of the trader on whose behalf it is acting (among other pre-contractual information required and taking into account that this information was already required before the implementation of the Omnibus Directive in Spain);
• Where the trader provides other means of online written communication which allow the consumer to exchange written communications on a durable medium (including the date and hour of such communication), the trader should provide information on those means within the pre-contractual information provided for distance contracts;
• If the personalised price offered to consumers has been set using automated decision-making, such circumstance shall be communicated to consumers within the pre-contractual information provided for distance contracts;
• A reminder of the existence of a legal warranty of conformity for digital content and services;
• Information, where applicable, about the functionality of the goods with digital elements or of the digital products, including applicable technical protection measures; and
• Information, where applicable, about the compatibility and interoperability of goods with digital elements or digital content or services, to the extent that this information is known or ought to be known by the trader.

In relation to formal requirements (implemented into Art. 98 of the Spanish Consumers Act), the trader may provide only the following information where using means of distance communication which allow limited space or time to display the information: (i) the main characteristics of the goods or services; (ii) the identity of the trader; (iii) the total price; (iv) the right of withdrawal; (v) the duration of the contract; and (vi) if the contract is of indeterminate duration, the conditions for terminating the contract.

The rest of the pre-contractual information (including the withdrawal form template) shall be provided through other means (e.g., link to T&Cs).

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

Art. 97 of the Spanish Consumers Act provides that before consumers are bound by contract on an online marketplace, the online marketplace provider shall provide them with the following information:

(a) General information, provided in a specific section of the online interface that is easily and directly accessible from the page on which the offers are presented, concerning the main parameters determining the ranking of the offers presented to the consumer or user as a result of the search and the relative importance of those parameters compared to others;

(b) whether the third party offering the goods, services or digital content is an entrepreneur or not, according to its declaration to the online marketplace provider;

(c) Where the third party offering the goods, services or digital content is not a trader, an express statement that consumer and user protection rules do not apply to the contract;

(d) Where applicable, how the obligations relating to the contract are allocated between the third-party provider of the goods, services or digital content and the online marketplace provider, without prejudice to any liability that the online marketplace provider or the third party trader has in relation to the contract under other European Union or national law;

(e) Where applicable, the guarantees and insurance offered by the online marketplace provider; and

(f) The methods of dispute resolution and, where applicable, the role played by the online marketplace provider in dispute resolution.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

Paragraph 5 of the amended Art. 107 of the Spanish Consumers Act provides that after termination of the agreement (including withdrawal from the agreement), traders must refrain from using the content that is not personal data, and that was provided or created by the consumer when using the digital content or services provided by the trader, unless that content:

• has no use outside the context of the relevant digital content or digital services;
• is related exclusively to the activity of the consumer when using the relevant digital content or the digital service;
• has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or
• was created by the consumer together with others, provided that other consumers can continue to use the content.

According to paragraphs 6 and 7 of Art. 107, the trader shall also provide the consumer with the content provided or created by the consumer upon request free of charge (unless one of the first three exceptions as mentioned above apply), within a reasonable period of time and in a common and machine-readable format.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

Sections (a) and (m) of amended Art. 103 of the Spanish Consumers Act state that the right of withdrawal shall expire/not apply where:

(a) the provision of services has been completely performed, or, in case the contract imposes the consumer a payment obligation, after the performance has begun, by obtaining the prior express consent of the consumer regarding the loss of the right of withdrawal once the trader has completely performed the service; or

(m) performance of the supply of digital content that is not provided on a tangible medium has begun and, if the contract imposes an obligation on the consumer or user to pay, the following cumulative conditions apply: (i) the consumer has granted prior express consent to start the performance during the withdrawal right period; (ii) the consumer has acknowledged awareness of the loss of the withdrawal right; and (iii) the trader has provided the consumer a confirmation on that loss on a durable medium.

VII. What penalties can be imposed for infringements of consumer rights?

Please see our answer to A.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Spain has transposed the highlighted optional provisions of the Omnibus Directive as follows:

• Art. 8b of Directive 93/13/EEC: No use was made of the option to restrict penalties to situations where the contractual terms are expressly defined as unfair in all circumstances;
• Art. 6a of Directive 98/6/EC: Products newly introduced in the market and products with a near expiration date would be exempted from the obligation to indicate the prior price when announcing a price reduction (please see our answer under B.I.);
• Art. 3, 11a and Art. 13 of Directive 2005/29/EC: No use was made of the derogation options set out in Art. 3, 11a. For sanctions envisaged in Art. 13, please see our answer under A.;
• Art. 6a, 9, 16 and 24 of Directive 2011/83/EC: Only the derogation option set out in Art. 9 in relation to the extension of the right of withdrawal to 30 days for contracts concluded as a result of non-solicited doorstep selling or commercial excursions has been used. For sanctions envisaged in Art. 24, please see our answer under A. above.

Noteworthy points arising from legislative changes

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Notable case law and/or enforcement action

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