Implementation in Spain of the Directives on digital content and services contracts and on the sale of goods

The implementation of Directives 2019/770 and 2019/771 (respectively, on digital content and services contracts and on the sale of goods) was initiated in Spain through the ordinary legislative procedure by means of a public consultation in January 2020. This legislative effort had to be interrupted by the Government's need to respond to the impact caused by the pandemic. In this regard, and in order to avoid penalties for the late implementation of these and other Directives into the Spanish laws, the Government published the Royal Decree-law 7/2021 (the RDL) on 28 April through the urgency procedure. Thus, the RDL includes amendments to the Spanish consumer protection laws that will apply from 1 January 2022.

A first interesting new aspect foreseen in the RDL is that it includes within its scope those digital content or digital services contracts that are provided free of charge, but which require the consumer to provide personal data that are not necessary for the supply of such content or services. In this sense, it can be argued that the RDL legally formalises a certain monetisation of personal data, recognising it as an actual contractual consideration.

The intention of the legislator with said provision is to provide data subjects with the contractual remedies established in the consumer protection laws. In this regard, it will be interesting to know how such remedies should be enforced to these types of contracts without a monetary consideration (beyond the consumer's right to terminate the contract). Another interesting aspect will be how the economic value associated to the personal data provided would be determined with a view to calculate the amount of any potential compensation. In any case, the RDL sets forth that, in the event of any conflict between its provisions and the data protection laws, the latter should prevail.

The RDL also provides for enhanced consumer protection in terms of warranties and after-sales services compared to the current legislation in force. In this sense, the warranty period for which the trader is liable for any lack of conformity with the goods purchased is extended to 3 years. Furthermore, the period during which the lack of conformity alleged by the consumer is presumed to have existed at the time the goods were delivered is extended to 2 years (i.e. such lack of conformity would not be attributable to the consumer's use of the goods in question). Notwithstanding the foregoing, the RDL keeps the terms envisaged by the Directives (2 years of warranty and 1 year for the presumption) for digital content or digital services contracts.

In relation to the above, it is important to note that the periods mentioned are longer than the minimum periods set out in the two Directives implemented by the RDL, although it is true that the Directives allow Member States to set –at their discretion– longer periods. Another matter that is not covered by the aforementioned Directives but is regulated by the RDL is the obligation of the manufacturer to ensure the availability of spare parts for the consumer for 10 years after the product ceases to be manufactured (whereas the previous regulation set this obligation at 5 years). This obligation stems from the Spanish Circular Economy Strategy 2030 in order to fight against planned obsolescence and to ensure a greater durability of goods.

Thus, the Spanish Government is actively pursuing a more sustainable market and consumption patterns. We understand that this initiative may be in line with multiple studies indicating that (for example) household appliances have a life cycle of 10 years on average with a proper maintenance. However, imposing a general obligation on manufacturers to ensure the availability of spare parts during 10 years after the goods cease to be manufactured may prove to be onerous for goods with a naturally shorter life-cycle.

Also, it is interesting to note how the executive regulates the direct liability the producer may have in the event of a lack of conformity. It should be reminded that the first Directive on consumer goods guarantees of 1999 did not foresee that the consumer could take direct action against the producer, though the Spanish legislator opted to anticipate future European legislation by establishing a system of direct liability of the producer with respect to the defects for which the producer is responsible. In fact, the Directives implemented by this RDL still do not establish this direct responsibility of the producer, while the RDL keeps said liability scheme.

The European Commission already issued an opinion in 2008 on the fact that some jurisdictions proposed a direct liability for the producer that differed from the provisions of the 1999 Directive, concluding that such divergences could pose a problem for the internal market. It will be interesting to note whether the Commission, after observing the implementation in the different Member States of the Directives covered by the RDL, will consider that this lack of harmonisation negatively affects European consumers and whether it intends (or not) to regulate the direct liability of producers in the future.

In addition, the RDL also sets forth that the same direct action by the consumer against the producer applies to digital content and digital services contracts. Taking into consideration that the broad definition of producer provided by the Spanish legislator (i.e. the manufacturer, service provider, or intermediary), we understand that such definition could cover many traders supplying digital services or content unless it is properly delimited (as could be the case of telecommunications operators, in extreme cases). In this sense, we understand that it might be necessary to clarify the scope of the definition of producer of digital services and content in order to determine against which "producers" the consumer could take action.

The RDL has been ratified in the House of Representatives (Congreso de los Diputados) on 13 May and, simultaneously, it has been decided that it will be processed as a draft bill through the urgency procedure. Although the passing of the RDL could be justified for the extraordinary and urgent need thereof, the fact is that the RDL provides for enhanced protection to consumers beyond what is foreseen in the corresponding Directives without being subject to discussion by the different parliamentary groups or having heard the stakeholders involved. We should recall that the urgent procedure in Spain reduces by half the ordinary terms of the legislative procedure and, therefore, we could have a text proposal that is materially different from the RDL in an abbreviated period of time.