The new features envisaged in the Spanish Draft Bill for customer services provided to consumers
Published on 24th Dec 2021
The Spanish Government has published a Draft Bill that would regulate customer services, complementing and developing the provisions of the Spanish consumer protection laws in this area. For those traders to whom the Draft Bill applies, the text imposes new obligations and limitations for customer services, the failure to comply with which will be sanctionable under the Spanish consumer protection laws.
The Spanish Government has recently published a Draft Bill for the regulation of customer services (hereinafter, the Draft Bill) in an effort by the executive to strengthen the protection provided by the Spanish laws to consumers. According to the Draft Bill's regulatory impact analysis report, the main purpose of the Draft Bill is to guarantee the provision of free, effective, accessible, inclusive, non-discriminatory and evaluable customer services to consumers.
It should be noted that the text of the Draft Bill envisages a narrow scope of application, as it initially intends to comprise any trader that provides services considered as basic services of general interest (such as the supply of water and energy, electronic communications and others). The law would apply both to those traders that provide the aforementioned services in the Spanish territory, whether they are established in Spain or in any other State.
Notwithstanding the foregoing, the future law resulting from the Draft Bill would also be applicable to those traders that qualify as a large-size enterprise (i.e. those that employ 250 or more workers), have an annual turnover exceeding EUR 50 million, or that have an annual balance sheet of more than EUR 43 million. In this regard, we entertain some doubts as to whether these criteria for determining the scope of application should be assessed only in relation to the Spanish territory (for instance, only the annual turnover obtained in Spain should be taken into account) or whether, on the contrary, they should be interpreted as criteria without a territorial limit (similar to what the intention of the Spanish legislator seems in relation to basic services of general interest).
Regarding the new features envisaged in the Draft Bill, it should be noted that it extends the precontractual information that must be provided to consumers pursuant to the EU directives in consumer matters. Thus, before they are bound by a contract or commercial offer, traders should provide consumers with information on, among other things, the means of interlocution available, the means made available for submitting any complaints that may arise, and the maximum time for the trader to resolve the different types of queries. In this regard, we should note that the Draft Bill defines means of interlocution both face-to-face communication and any form of distance communication (whether by ordinary mail, telephone, email, web form or other forms of electronic communication). The Draft Bill also obliges traders to facilitate the means of interlocution available in consumer contracts, their websites, and the invoices they issue.
The Draft Bill also dedicates a large part of its text to establishing minimum standards in the provision of customer services, which will be enforceable by consumers. One of the main measures of the Draft Bill is that it fosters personal and direct customer services, prohibiting the use of answering machines or other similar means as an exclusive means of communication with consumers. We also entertain some doubts around whether the Draft Bill intends to be more flexible in this respect than the Spanish consumer protection laws, which establish that traders should ensure that customer service will be personal and direct in telephone and electronic communications. However, the Draft Bill does impose the obligation to offer personalised attention whenever the consumer so requires, and even (in the event of discontent) empowers the consumer to request that the communication be transferred to a supervising natural person, who should attend to the consumer in the course of that same communication.
Although the Draft Bill does not introduce new features in terms of establishing a time limit for resolving queries, complaints, claims or incidents of one month from their submission (which is already provided for in the Spanish consumer protection laws), the text imposes new obligations and prohibitions on businesses in the context of these communications. On the one hand, companies must enable consumers to submit such queries and other requests through the same channel through which the contract was executed (for example, within the same application or website) and, in any case, to provide a document justifying the same to the consumer on a durable medium. On the other hand, the Draft Bill prohibits companies from taking advantage of these communications to send new commercial offers to their customers. In any case, and in accordance with the Draft Bill, the responses to the customer must be duly motivated, and in no event may they be terminated due to expiry or prescription not attributable to the customer.
In addition, the Draft Bill requires traders to implement a system to define the degree of customer satisfaction in relation to customer services. The system implemented pursuant to this obligation will need to be documented, thereby facilitating the inspection by competent authorities, and traders will be obliged to store the corresponding documentation for at least five years. Furthermore, the evaluation of customer services will need to be audited annually by a duly certified company. Traders will also have to make the descriptive documentation of the customer services evaluation and the corresponding audit publicly available on their website. We understand that these obligations not only entail a reputational risk for traders in relation to the information they have to publish on the evaluation, but it also entails additional costs for external audits.
In the event of failure to comply with the provisions of the Draft Bill (once the law resulting from the Draft Bill is applicable), the competent authorities will be in a position to sanction companies under the Spanish consumer protection laws. In this case, we should note that the failure to comply with customer service obligations may be qualified as either a minor or a serious infringement as of 28 May 2022, which could potentially be sanctioned with an administrative fine of up to EUR 100,000. Until 28 May 2022, which is the date on which the implementation into the Spanish laws of the so-called "Omnibus" Directive will be applicable, we should note that there would be no system for grading infringements in the Spanish consumer protection laws and that any breach could potentially be sanctioned with a maximum fine of EUR 601,012.10.
To wrap up, we can conclude that the Draft Bill basically strengthens the existing provisions on customer service of the Spanish laws in certain areas and also envisages other new features (such as the extension of the precontractual information that must be provided to consumers or the provision of a supporting document for the follow-up of enquiries and other requests submitted). The new features of the Draft Bill are presented as an additional variable to be taken into account for traders to which this new law will apply and could lead to divergences in their practices at an international level.