Recently, there have been a number of amendments to the Spanish Consumers and Users Act. This article explains some of the most important changes to the Act.
The first amendment is the definition of “consumer” and “user”, which has been extended to corporate persons and entities without legal personality acting as non-profit associations within a scope that falls outside commercial or entrepreneurial activity.
For the first time, information and customers services provided by phone have been regulated and it has been stated that the expenses derived from the use of phone services shall not be higher for customers than the basic phone rate.
Furthermore, the amendment opens up the possibility for Spanish public authorities to fine parties that infringe on a duty to provide the general conditions of the contract to consumers and users.
From a litigation point of view, it has been envisaged the possibility of gathering actions of ceasing, annulment, infringement of duties and termination of contract, the return of a certain amount obtained and the compensation for damages caused as a result of abusive behaviour.
With regard to the consumer arbitration system, it has been stated that those consumer arbitration agreements entered before a dispute between contractual parties has arisen shall not be binding for the consumers.
The new Act also includes several new definitions such as sales contract, service contract, business premises and further terms that will be useful to clearly define the scope of application of the Act.
In order to guarantee the consumer position in the contract, the Act has introduced a full and detailed regulation of the pre-contractual information that the seller has to provide to the consumer prior to the signature of the contract. This information must include the main
characteristics of the good or services, the identity of the seller, the full price, the method of payment, the term of the contract and any long- term commitment agreements.
With regards to additional charges, before the consumer is bound to the seller by means of a contract, the seller must inform (in a clear and understandable manner) about the content of these additional charges, and they have to be accepted expressly and through an inclusion system by the consumer. Moreover, the seller will not be allowed to charge more than the real cost as a result of the use specific methods of payment, such as credit cards. Likewise, additional costs due to the invoice delivery by post shall not be charged.
The amendment has included a new regulation about the delivery of the goods and services that it was not included in the former Act. Specifically, it has been stated that the maximum term for the delivery of the goods is 30 days, unless the parties thereto have
agreed otherwise. In the event that the seller does not fulfil that term, the consumer could apply for the termination of the contract and the reimbursement of any amount paid.
The risk of loss or deterioration of the goods shall not be transferred to the consumer until such consumer has the material possession of the goods, except in the event that the consumer had agreed the transport through a different carrier than proposed by the seller.
Finally, the right to withdrawal and its effects over the complementary agreements has been regulated more extensively. The term to exercise this right has been extended to 14 working days in the event that the seller has duly informed to the consumers about the right, and 12 months in the event that consumer has not been informed by the seller. Moreover it has been included as Annex to the Act an example of information form to the consumer about his right to withdrawal and a form to withdraw.