Changes to the General Defence of Consumers and End Users Act

The most important new provisions introduced into the Defence of Consumers and End-Users Act by Royal Legislative Decree 24 of 2 November 2021, which will come into force on 28 May 2022 and transpose Directive (UE) 2019/2161 of the European Parliament and of the Council of 27 November 2019 (amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules) into Spanish law, can be summarised as follows:

 

• Commercial offers in marketplaces

In the case of marketplaces, in addition to the information that was already offered in respect of the trader, characteristics of the item, price and methods of payment, commercial offers must now include the following:

• • General information on the main parameters applied to the ranking of goods and services offered to consumers and end users as the result of a search; and
  • Information on the relevant importance of these parameters as compared with others. This information will be offered on the online interface in a way that is directly and easily accessible from the page on which the results of the search are presented.

 

• Reviews

In the case of commercial practices consisting of the trader offering access to reviews of goods and services by consumers and end users, the trader must:

• • Provide information on whether the published reviews have been prepared by consumers and end users who have actually used or acquired the good or service in question; and
  • Provide clear information on how the reviews are processed.

 

• Pre-contractual information

When contracts are entered into online, traders must provide consumers with the following information, clearly and comprehensibly, before the contract is entered into, in a format that is appropriate, accessible and comprehensible: 

• • General information, made available in a specific section of the online interface that is directly and easily accessible from the page where the offers are presented, on the main parameters determining the ranking of offers presented to the consumer or end user as a result of the search query, and the relative importance of those parameters as opposed to other parameters.
  • In the event that a third party is offering goods and services on the trader’s website, it must be stated whether this third party is a trader or not.
  • If the third party is not a trader, it must be stated that the consumer regulations do not apply to the contract.
  • Where applicable, how the obligations related to the contract are shared between the third party and the trader.
  • Where applicable, the guarantees and insurance offered by the online market supplier.
  • The methods for resolving disputes and, where applicable, the role played by the online market supplier in the resolution of any conflicts.

This information is to be provided in addition to the information required under Article 60.2 of the Defence of Consumers and End Users Act.

 

• Right of Withdrawal

This is extended to 30 days in the case of unsolicited visits by a trader to a consumer’s or end user’s home, and in the case of excursions organised by a trader with the aim of promoting or selling goods or services to consumers. In the remainder of cases this term remains at 14 days.

 

• Penalties

• • Criteria have been introduced to strengthen the range of penalties if a trader takes advantage of a situation in which there is a need for certain ordinary and widely used consumer goods, products or services, or if it exploits the particular inferiority, subordination or lack of protection of a particular group of consumers, among other circumstances.
  • Penalty payments have been increased: mild penalties have risen from €150 to €10,000, serious penalties from €10,001 to €100,000, and very serious penalties from €100,001 to €1,000,000.

These measures are additional to those introduced into the Consumers and End Users Act by Royal Decree 7 of 27 April 2021, which came into effect on 1 January 2022, and apply to the sale of products and services made after that date, as specifically shown below:

• • • The applicable scope of after-sales guarantees and services rules has been extended to include sale and purchase agreements for digital goods, content and services.
    • New criteria have been established to determine whether goods and services comply with the contract entered into. Under these, if an item engaged by a consumer is to be regarded as complying with the contract, the following compliance requirements must be met, provided that they are applicable to the item or service in question, namely:
    • It must conform to the description, type of item, quantity and quality agreed, and have the functionality, compatibility, interoperability and other characteristics set out in the contract;
    • It must be suitable for the specific purposes for which the consumer requires it and which were made known to the trader, at the latest, when the contract was entered into, provided that the trader agreed to the said purposes before entering into the contract;
    • It must be delivered or supplied together with all its accessories and instructions, which will also apply in relation to installation or integration and consumer assistance, as set out in the contract;
    • It must be delivered with updates, in the case of goods, or be updated, in the case of digital content or services, as set out in the contract;
    • It must be suitable for the purposes for which items or digital content or services of the same type are normally used, bearing in mind the technical rules or codes of conduct that apply to the industry or sector in question;
    • It must have the quality of the sample or model and match its description, or comply with the test version or preliminary presentation of the digital content or service made available by the trader to the consumer before entering into the contract;
    • It must be delivered together with the accessories and, in particular, the packaging and instructions that the consumer can reasonably expect to receive;
    • It must be supplied in the expected quantity, and have the qualities and characteristics, particularly as regards durability of the item, accessibility and continuity of the digital content or service, functionality, compatibility and security, that are usual for physical goods or digital content and services of the same type and that consumers could reasonably expect.

 

• The non-conformity of an item that forms the subject of a consumer contract will give the consumer the right to withhold payment of the price paid for the item or the digital content or service until this non-conformity has been corrected by the trader.
• Although the remedies included in the legal warranty are maintained (repair or replacement of the item forming the subject of the contact, a price reduction or termination of the contract), the cases in which consumers may directly demand a proportional reduction in price or the termination of the agreement in view of the non-conformity of the contracted item have been extended, regardless of the remedy of repair or replacement (in addition to the cases provided for until now):
  • • When a further non-conformity emerges after the trader has attempted to make the items or the digital content or services compliant (i.e. after an attempt has been made to repair or replace the contracted item);
    • When the non-conformity is so serious that it justifies an immediate reduction in price or termination of the contract; or
    • When the trader has declared, or it can be clearly concluded from the circumstances, that it will not repair or replace the items or the digital content or services within a reasonable term or without great inconvenience for the consumer.

In addition, although the consumer may not opt for termination of the contract in cases in which the non-conformity is not greatly important, an exception has been added for cases in which the consumer has provided personal data in consideration of the contract, in which case the consumer may seek termination of the contract, even though the non-conformity is only slight.

• The terms that apply to the legal warranty and after-sales service have been extended. Specifically for physical goods:
  • The legal warranty period has been extended from 2 to 3 years from delivery;
  • The term for the presumption of the pre-existence of a non-conformity unless proved otherwise by the trader has been extended from 6 months to 2 years from delivery;
  • The term for the legal time-barring of actions relating to the non-conformity of goods has been extended from 3 years following delivery of the product to 5 years from the appearance of the non-conformity;
  • The term for the time-barring of an action or right to recover products delivered by the consumer or end user to the trader for repair is reduced from 3 years to 1 year from the moment that the product is delivered for repair.
  • The term during which the manufacturer must guarantee the existence of an adequate technical service and replacement parts increases from 5 years to 10 years from the date on which manufacture of the item ceases.
  • The term during which the trader must reimburse payment following a price reduction or termination of the contract is still 14 days following the date on which the trader is informed of the consumer’s decision.

 

As a result of the greater protection afforded to consumers under the regulations mentioned above, businesses are subject to compliance with new obligations to which they must unavoidably adapt.