Urgent Data Protection Measures for GDPR Enforceability

New Order or Decree

The Spanish government has fast-tracked the approval of measures aimed at adjusting Spanish legislation to the new General Data Protection Regulation (GDPR) by passing Royal Decree-Law 5/2018, of July 27, in force from July 31. The Royal Decree-Law seeks to compensate partially for the absence of a Spanish data protection act adapted to the GDPR, regulating aspects considered outside the exclusive scope of organic law. It issues rules on sanctioning proceedings for infringements, so they can be applied under the European regulation, and establishes limitation periods for sanctions already imposed.

Supplementary Pension Schemes: Modifications Relative to Employment Terminations

New Order or Decree

Royal Decree 11/2018, of August 31, in force from September 5, transposes into Spanish law Directive 2014/50/EU, which aims to reduce the obstacles to the mobility of workers between Member States created by regulations relating to supplementary pension schemes linked to an employment relationship. The regulation amends the legal regime of supplementary pension commitment with a rights-acquisition provision, limiting the vesting and waiting periods to three years, and setting a minimum age for the vesting of pension rights (21 years).

New Directive Equates the Working Conditions of Workers Posted in the EU

New Order or Decree

New Directive 2018/957 of the European Parliament and of the Council of June 28, 2018 (published July 9) seeks to equate the working conditions of workers posted in the EU to those applicable to workers in the host Member State. The Directive provides inter alia that when a posting exceeds 12 months (on an exceptional basis, 18), all working conditions that apply in the host Member State, by law or under a collective bargaining agreement, will apply, except for the laws on entering into and terminating contracts and supplementary retirement pension schemes. Member States have until July 30, 2020, to transpose it into their national legislation.

CJEU Ruling Will Change Current Spanish Doctrine on Conventional Subrogations

Precedential Decision by Judiciary or Regulatory Agency

To date, the Spanish Supreme Court (SC) has placed conventional subrogation in labor-intensive sectors outside the scope of TUPE regulations. In a July 11, 2018 decision, the Court of Justice of the European Union (CJEU) ruled that, although an agreement establishes subrogation, when the transfer of all or an essential part of the workforce alone comprises an “economic unit” subject to the transfer to which the Directive 2001/23 refers, the assumption of fact falls within the scope of application. The CJEU decision lays the groundwork for the SC to amend its case law on the subject.

Riders of On-Demand Economy Company Are Not Employees, Judge Rules

Precedential Decision by Judiciary or Regulatory Agency

In September 2018, a labor judge in Madrid ruled that the nature of the relationship between a company that provides services through a digital platform and its delivery persons (“riders”) is not an employment relationship, but a commercial one, because riders are considered independent contractors based on a number of factors. This ruling is significant for on-demand economy platforms operating in Spain, especially since it is contrary to other rulings finding riders have an employment relationship with the digital platform for which they provide their services.