Spain: Consumers Protection/Product Liability Legal Framework In Spain

Last Updated: 26 November 2003

By Alejandro Ferreres-Comella and Cristina Ayo-Ferrándiz

The legal framework applicable to consumer protection in Spain has undergone some significant changes in the past two decades with regard to (i) the substantive law on product liability, (ii) legal aid, and (iii) class actions. As a result of those changes, consumers associations in Spain are now in a better position to claim corporate liability. Before analyzing the most relevant of those changes, it is important to briefly discuss the social and political circumstances which have led to the current legal framework.

A. Social-political circumstances that explain the changes in the consumer protection legal framework in Spain.

There are three main circumstances that explain the changes in the consumer protection legal framework in Spain, which in turn have significantly affected the legal position of industry in product liability cases:

  1. Regulatory efforts made by the Spanish government in the early 80s to convince the members of the European Union (EEC at that time) of the ability of the Spanish Public Authorities to adapt to the highly developed consumer protection framework of the EU. In this regard, the Spanish Parliament enacted the General Consumer Protection Act1. As will be discussed below, the General Consumer Protection Act is highly protective of consumers' interests.
  2. Technically poor drafting and parliamentary debates on regulations. Traditionally, highly politically oriented regulation is technically poor in Spain. This sort of regulation is typically drafted by one or few technicians within the Government, not necessarily familiar with the legal issues or involved in the subject being regulated, and enacted by the Parliament without a real debate on the legal accuracy of the drafting of the regulation.
  3. Lack of lobbying by the industry. While both the Spanish Government and Parliament have enacted regulations which tend to benefit consumers, industry has failed to effectively lobby the Government and Parliament in order to avoid some of the consumer protection regulation or at least to minimize its impact. The lobbying that has been carried out in Spain in the past decades has been limited to specific industrial/economic sectors, and has normally concerned vertical regulation2.

Horizontal regulation is rarely lobbied in Spain. A recent example of this is the drafting and enactment of the 1/2000 Civil Procedure Act, which sets forth a completely new regulation of Spanish Civil procedure. Neither the preparation of the Bill (which was carried out by a small group of legal experts directly appointed by the Ministry of Justice), nor its enactment in Parliament, raised the slightest hint of lobbying activity on the part of industry. Therefore, it is not surprising that the new class action regime set forth in the new Civil Procedure Act received no attention whatsoever from industry, nor was it the subject of any technical discussion during the Parliamentary debates.

B. Consumer protection/product liability legal framework.

As a result of the three factors explained above, the legal framework in Spain is already highly protective of consumers and has clearly weakened the legal position of industry with regard to torts (and, in particular, in product liability cases).

B.1. Substantive law on product liability.

a) 1984 General Consumer Protection Act.

The 1984 General Consumer Protection Act sets forth a omnia comprehensive legal framework for the protection of consumers. As regards service/product liability, the Act is applicable to the damages derived from services provided or products put into circulation after 1984. Among other issues, the 1984 General Consumer Protection Act sets forth a double liability regime that is indistinctively applicable to services and products:

  • For regular products, Article 25 of the Act sets forth the principle that manufacturers and distributors are jointly liable for any negligence committed in the putting into circulation of the product or in the provision of the service, which has resulted in damages being caused to consumers. Furthermore, it sets forth the burden of proof on the manufacturers and/or distributors to prove that they were diligent enough, and therefore, that no liability exists.
  • For "regulated products" (i.e. products whose efficiency and/or safety are subject to certain specific requirements set forth by the regulation), Article 28 of the Act sets forth a strict liability regime, according to which the consumer must always be compensated for any damage suffered as a result of the consumption of the product, regardless of whether or not the manufacturer and/or distributor has infringed a duty of care. Both food and medicines are qualified as "regulated products" by Article 28.

Unfortunately, some scholars and some case law disregard the fact that the liability set forth in Articles 25 and 28 of the Act are only applicable to those cases where there is a defect in the product and/or the consumer did not or could not assume the risks involved in the consumption of the product or the use of the service3. This obliges defendants in product/service liability lawsuits to devote extra efforts to educating the Courts in order to ensure the liability regime is understood and applied adequately.

On the other hand, the General Consumer Protection Act does not provide for a state of the art defense, nor does it set forth any of the other traditional product liability specific defenses.

b) 1994 Product Liability Act

The 1994 Product Liability Act is the result of the transposition of the 374/1985 European Directive on Product Liability. It applies to the damages derived from the consumption of products put into circulation after 1994.

The Spanish Government requested the Instituto Nacional del Consumo (National Institute of Consumption), a governmental body in charge of protecting and developing the rights and interests of Spanish consumers, to produce a Bill to be submitted to the Parliament. Not surprisingly, the Bill which was finally passed in Parliament excluded the state of the art defense both for food and medicines (Article 6.3). No lobbying by the affected industrial/economic sectors either during the drafting of the Act or during the Parliament debates was ever reported.

B.2. Legal Aid

The legal aid regime currently in force in Spain was passed in 1996 (Act 1/1996, January 10). According to it, those individuals or entities that are granted the legal aid status:

  • May (but are not obliged to) solicit to the Bar Association to provide them with legal counsel free of charge. The Bar Association is then obliged by law to appoint a lawyer to the applicant.
  • May ask the Court to appoint as many expert-witnesses as required by the subject of the litigation, which will be financed by the Government.
  • Will not have to pay legal fees and costs in the event that they finally loose the case.

All those entities that are granted the status of "public utility" can solicit (and will mandatorily be granted) the legal aid status. In turn, Consumers Associations are "public utility" entities according to the law, and therefore can always solicit the legal aid status. The law does not make any exception. In particular, it does not exclude the legal aid status of the Consumers Associations in the event that they claim on behalf of individual consumers, rather than in their own interest.

B.3. Class actions.

The 1/2000 Civil Procedure Act sets forth a class action regime, by virtue of which Consumers Associations are entitled to file a lawsuit on behalf of an undetermined number of consumers for those damages allegedly caused to them. Any favorable decision issued by the court will benefit all the undetermined consumers that are represented by the Consumers Association -regardless of whether or not those consumers are affiliated to the plaintiff Association-. The undetermined consumers will afterwards be entitled to execute the decision on their own behalf.

Among other omissions, the Civil Procedure Act does not specifically set forth any preliminary proceedings to certificate the action -contrarily to what is provided for by Procedure Federal Rule no. 23-, in order to duly assess the existence or otherwise of the traditional requirements for this type of action (commonality, typicality, numerosity and adequacy of representation) and which might have allowed the industry to more effectively avoid the certification and filing of them.

In future articles, we will analyze the implications of the new regulations on collective actions in detail.

Footnotes

1 The rape-seed oil (colza oil) case, which caused hundreds of deaths and more than 20,000 cases of serious disability in 1981, increased the potential need for legislation and resulted in the enactment of the said law- among others.

2 For example, in the early 90s, insurance companies effectively lobbied Parliament on the need to pass legislation on the compensation paid out for car accidents. As a result, in 1992 a Royal Decree was passed setting forth the amounts to be paid by insurers to victims of car accidents for each type of injury suffered.

3 The assumption of risks doctrine/principle is implicitly set forth in Article 3 of the Act, according to which "products and services will not give rise to risks for the health or safety of consumers, except for those usually or legally accepted" (emphasis added). However, and due to the aforementioned poor technical drafting and enactment of the regulation in Spain, the legislator failed to clearly link the assumption of risk principle set forth in the said Article 3 to the product and service liability regimes set forth in Articles 25 and 28 of the Act.

Alejandro Ferreres-Comella practices as an external legal counsel for Philip Morris in Spain

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions