European Commission

 

Enforcement fiche for Spain



I. ADMINISTRATIVE ENFORCEMENT
Which administrative mechanisms are available to enforce the UCP Directive? The UCP Directive has been implemented by Law 29/2009 of 30 December 2009 amending the statutory regime of unfair competition and advertising in order to enhance protection afforded to consumers and users (the "Law"). The Law applies a large number of amendments to many preexistent regulations: the Unfair Competition Act (Law 3/1991); Legislative Royal Decree 1/2007 (Consumers and Users Act); the Retail Trade Act (Law 7/1996); and the General Advertising Act (Law 34/1988). Royal Decree 1/2007 (article 47) and Law 7/1996 (article 63) establish that enforcement of regulations protecting consumers and users will be handled by the relevant Spanish administrations (national, regional and/or local). In this regard, determination of the relevant body has to be made on a case by case basis and requires applying many different regulations (e. g. Royal Decree 1945/1983; Autonomous Regions Consumer Protection regulations, among others). However, independently of the actual body who should handle the case, complaints can always be submitted before the Local Consumer Information Offices (OMIC, in its Spanish acronym), which shall forward the case to a more appropriate body, if necessary. Enforcement of (i) the Unfair Competition Act, Law 3/1991 and of (ii) the General Advertising Act, Law 34/1988 is only possible through Court action.
Who can file administrative complaints? According to Legislative Royal Decree 1/2007 (Consumers and Users Act), which establishes the concept of consumer, in relation with autonomus regions regulations creating Local Consumer Information Offices (OMIC), administrative complaints (which will always refer to consumer protection matters) can be filed by any individual or entity when is not exercising a professional or business related activity. In some cases, also consumers and/or users associations are entitled to file them on behalf of its members. Finally, complaints can also be filed anonymously. There are no limitations applying to filing of the complaints, exception made of the limitations mentioned above regarding the concept of consumer (any individual or entity when is not exercising a professional or business related activity).
Do any specific procedural requirements apply to filing administrative complaints? Procedural requirements are different in attention to the actual body in charge of the enforcement. However, no formalities at all are required. It will be always sufficient with submitting the complaint in writing, explaining the situation in a clear manner and identifying properly the parties involved. Complaints submitted before the OMIC have to be filed in writing (either by physical or by telematic means) and can be accompanied by any documental evidence (such as a purchase receipt). If the complaint is communicated by telematic means, it shall be formalized in the relevant form as issued by the relevant regional body and available in the Internet (e.g. Madrid Autonomous Region allows downloading the form at http://gestiona.madrid.org/i012_impresos/run/j/VerImpreso.icm?CDIMPRESO=136F1).
Do the administrative authorities have an obligation to investigate the complaint? No. Administrative authorities can dismiss a complaint when the facts or conduct complained of cannot be proven and/ or qualified as a legal infringement.
Are there any specific requirements regarding the provision of evidence to the competent authorities? No specific requirements have to be met. Complaints can be accompanied by any evidential documentation.
II. ENFORCEMENT THROUGH COURT ACTION
Which court actions are available to enforce the UCP Directive? Actions arising from unfair competition, including unlawful advertising, are regulated on article 32 of the Unfair Competition Act (Law 3/1991) as modified by Law 29/2009 amending the statutory regime of unfair competition and advertising in order to enhance protection afforded to consumers and users. They are the following ones: 1. Action declaring the existance of bad faith. 2. Injunction against the unfair conduct or prohibition of its continued practice. An injunction may also be brought to forestall the practice before it occurs. 3. Action to counteract the effect produced by the unfair practice. 4. Action to rectify misleading, incorrect or false information. 5. Action to compensate damages. 6. Action against unfair enrichment. In addition to these actions, according to article 53 of Legislative Royal Decree 1/2007 (Consumers and Users Act), a Cease & Desist Action is also available. This action can be excercise in some cases even in other Member States within the EU.
Who can start a court action? Any individual or legal entity operating in the market whose economic interests are directly injured or threatened by unfair practice is entitled to start the actions envisaged in Article 32(1) of the Unfair Competition Act, Law 3/1991, indents 1 to 5. In case of unlawful advertising, any individual or legal entity affected and, in general anyone with a subjective right or legitimate interest, is entitled to start the actions envisaged in Article 32(1) of the Unfair Competition Act (Law 3/1991), indents 1 to 5. Legal action for compensation of damages sustained from unfair practice may likewise be taken by those so authorised in accordance with the provisions of Article 11(2) of the Civil Procedure Act (Law 1/2000). Action against unfair enrichment may only be taken by the holder of the infringed legal position. The actions provided for in Article 32(1) of the Unfair Competition Act, Law 3/1991, numbers 1 to 4, may also be taken by associations, professional corporations or representatives of economic interests when the interests of their members are affected. The following are actively entitled to take the action envisaged in Article 32(1) of the Unfair Competition Act (Law 3/1991) indents 1 to 4, in defence of the general, collective or diffuse interests of consumers and users: a) The National Institute of Consumer Affairs and its counterparts in the Autonomous Regions and Local Governments with competence in the protection of consumers and users; b) Consumer and user associations meeting the requirements laid down in the General Consumer and User Protection Act or, as the case may be, in regional legislation on consumer and user protection matters. c) Organisations from other European Community Member States established for the protection of the collective and the diffuse interests of consumers and users and authorised by virtue of their inclusion in the list published for that purpose in the Official Journal of the European Communities. The Public Prosecutor may also order injunctions in defence of the general, collective or diffuse interests of consumers and users. According to article 54 of Legislative Royal Decree 1/2007 (Consumers and Users Act), the Cease & Desist Action can be exercised, depending on the case, by: - The National Consumers Institute and the bodies or entities of the autonomous regions and local bodies responsible for consumer protection and users. - Consumer and users associations - The Public Prosecutor. - Institutions from other Member States of the EU established for the protection of collective interests and the general interests of consumers and users that are enabled by inclusion in the list published to this end in the Official Journal of the European Communities.
Can court actions be initiated by competitors? Yes, provided their economic interests are directly injured or threatened by unfair practice or unlawful advertising. For example, as mentioned above, in case of unlawful advertising, any individual or legal entity affected (even a competitor) and, in general anyone with a subjective right or legitimate interest, is entitled to take actions envisaged in Article 32(1) of the Unfair Competition Act (Law 3/1991), indents 1 to 5. Similarly, any individual or legal entity operating in the market whose economic interests are directly injured or threatened by unfair practice is entitled to take actions envisaged in Article 32(1) of the Unfair Competition Act, Law 3/1991, indents 1 to 5.
Can the case be handled through an accelerated procedure? It is possible to be granted injunctions that may entail the provisional cessation of the unfair practice or the unlawful advertising.
Are there any specific requirements regarding the provision of evidence to the court? The Law does not contain any provision on this matter. Consequently, the general rules on evidence as laid down in the Spanish Procedural Act (LEC in its Spanish acronym) are applicable.
III. SANCTIONS
What are the possible civil sanctions and remedies for the infringement of the UCP provisions? The Court can order the cessation in the infringing practice or/ and can award compensation for damages or unfair enrichment. It can also be ordered publication of the decision or of a rectification (when the effects of the infringements are going to last in time). Declarative measures, such as declaring unfair an specific practice, can also be adopted. Additionally, the Court may order measures of different kind in order to counter the effect produced by an unfair practice.
What are the possible criminal sanctions for the infringement of the UCP provisions? Criminal sanctions arising from UCP provisions are contained in the Spanish Criminal Code (Ley Orgánica 15/1999). Unlawful advertising offence (article 282 of the Spanish Criminal Code): The penalties are imprisonment from 6 months to 1 year or fines equivalent to an amount equal to 12 to 24 months of income. Designation of origin infringement (art. 275 of the Spanish Criminal Code): The penalties are imprisonment from 6 months to 2 year and fines fines equivalent to an amount equal to 12 to 24 months of income. (In aggravated cases, imprinsonment from 6 months to 4 years). Manipulation of prices of raw materials or basic products (art. 281 of the Spanish Criminal Code): The penalties are imprisonment from 1 to 5 year and fines equivalent to an amount equal to 12 to 24 months of income. Price alteration (art. 288 of the Spanish Criminal Code): The penalties are imprisonment from 6 months to 1 year or fines equivalent to an amount equal to 12 to 24 months of income.
What are the possible administrative sanctions for the infringement of the UCP provisions? UCP provisions related to consumer protection matters can be enforced through administrative mechanisms (see above). (A) Legislative Royal Decree 1/2007 (Consumers and Users Act) and (B) Retail Trade Act (Law 7/1996) set forth a the following penalty systems: (A). Article 51. Minor Infringements: fines up to 3,065.06 euros. Serious infringements: fines from 3.005,07 to 15.025,30 euros. Very serious infringements: fines from 15.025,31 to 601.012,10 euros. Serious and very serious infringements can give raise to penalties over the amounts mentioned above up to five times the value of the good or services connected to the infringement. When very serious infringements have been committed, additional penalties such as the temporary closure of the premises can be posed. Other ancillary sanctions can be imposed: e.g. seizure of the adultered, counterfeited, or fraudulently obtained materials; or publication of the sanction. (B). Article 68. Minor Infringements: fines up to 6.000,00 euros. Serious infringements: fines from 6.000,00 to 30.000,00 euros. Sanctions may entail seizure and loss of the goods subject of the commercial activity concerned. Temporary closure of the premises (for a maximum term of one year) can be ordered if it was the third time the infringer committed a very serious infringement.
What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction? Administrative orders cannot relate to unfair commercial practices. Differently, judgements do may order the nullification of a whole contract or of some ot the provisions contained therein. Additionally, according to article 221 of the Spanish Civil Procedure Act (Law 1/2000), if a specific practice is declared unfair as a result of a judgement on a case referring to consumers or asociations of consumers and users, the judgement may also declare, according to the consumer protection regulations, the effects of the same have to be extended to other consumers or associations that were not a party in the proceedings.
How can consumers get redress/compensation (e.g. through collective actions)? Spanish law does not provide for a standard collective settlement of claims for civil damages (class actions). However, article 6 of the Spanish Civil Procedure Act (Law 1/2000 of 7 January) establishes that consumer groups or users affected by a harmful event, provided such groups are composed of individuals who are determined or readily determinable, can initiate civil actions provided the group is constituted with a majority of those affected. Additionally, those entities qualified under European Community regulations for the exercise of the injunction in defense of collective interests and the general interests of consumers and users can also initiate civil actions.
Can the administrative authorities or the courts require the publication of their decisions? Administrative sanctions can include the publication of their decisions. As indicated above, according to article 51 of Legislative Royal Decree 1/2007 (Consumers and Users Act), when very serious infringements have been committed, additional penalties such as the publication of the sanction can be posed. Furthermore, article 221.2 of the Spanish Civil Procedure Act (Law 1/2000) establishes that the Court in charge of deciding in proceedings on the defense of collective interests and the general interests of consumers and users, may order to publish all or part of the decision, or when the effects of the infringement can be maintained over time, a rectificative statement. Similarly, article 32 of the Unfair Competition Act (Law 3/1991), envisages the possibility for the Judge to order the publication of the decision in some cases.
IV. OTHER TYPES OF ENFORCEMENT
Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive? Yes. Regarding unlawful advertising, there is a Self Regulatory Organization, the "Asociación para la Autorregulación de la Comunicación Comercial (AUTOCONTROL)". It is composed of the main advertisers, agencies and media agents (TV, press, outdoor, radio, Internet…) in Spain, as well as the main advertising industry associations. Autocontrol receives complaints from either individuals/ consumers, associations and legal entities that consider that advertising materials produced by a third party infringe their rights and the the General Advertising Act (Law 34/1988).
Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)? The Spanish Consumer Arbitration System, in charge of dealing with and resolving complaints against companies, not against individuals (actions against individuals can only be brought through Court), may act either as mediator or arbitrator with regard to such complaints. Arbitration is not possible though in the following cases: - Cases of poisoning, injury or death. - If there are reasonable indications of a serious criminal infringement having been committed. - Cases arising from companies that have closed down. - If the company is not willing to go to arbitration. - If the Chair of the Consumer Arbitration Tribunal judges the complaint to be unfounded or decides that consumers economic interests have not been affected. AUTOCONTROL also operates as mediator/ arbitrator if the parties agree with this.