Legal Status - JUNE 2024
Disputes: New European Directive on “right to repair” for consumers
Energy: New European Directive on energy performance of buildings approved
Tax: Interpretative developments in restructuring operations
International: German companies’ confidence in the Spanish economy operations
DISPUTES
New European Directive on “right to repair” for consumers
ANTONI FAIXÓ
Partner
On 23 April, the European Parliament adopted a directive to create a new regulation that will grant a “right to repair” to consumers after the legal guarantee period.
According to the approved text, this directive will entail a series of new aspects.
1. Rules adopted by the European Parliament.
Specifically, the approved rules ensure that product manufacturers provide cost-effective repair services and inform consumers of their right to request such services, make spare parts and tools available at a reasonable price, and provide them with a device while theirs is being repaired.
A reasonable price means that it should be in line with the relevant costs (labour costs, cost of spare parts, workshop operating costs) and at the same time it should be a price that does not intentionally deter consumers from availing themselves of the repair.
Furthermore, the rules forbid contractual clauses limiting the right to repair with an independent repairer, such as refusing second-hand spare parts or parts created with 3D printing.
The proposed rules include an annex detailing certain products that already have their own repairability regulation and will therefore be covered by this new regulation: washing machines, tumble dryers, dishwashers, refrigeration appliances, electronic displays, hoovers and mobile phones.
In connection with the above, the European Union will create a European online platform to help consumers find local repair shops, sellers of reconditioned products, buyers of defective goods, or community repair initiatives.
It is worth noting that following this approved rules, the European Council will have to issue and approve a Directive, and that this Directive will have to be transposed by each country into its national legislation within 24 months of the Directive being approved. This means that this new regulation will not be immediately applicable in Spain, but it will be in the near future.
2. Current Spanish regulations on repairs.
The General Law for the Defence of Consumers and Users regulates the obligation of manufacturers to repair the product in case of non-conformity (i.e. in case of defect of origin) during the legal guarantee period, which is 3 years.
This reparation must be free of charge and must be carried out within a reasonable time.
Furthermore, this law obliges manufacturers to provide an adequate technical repair service and to have spare parts available for 10 years after the product ceases to be manufactured.
3. Conclusions
Consequently, the new European legislation will complement this regulation, in the sense of specifying and detailing these obligations of reparation as the current regulation is generic and not defined in detail.
In addition to this, the new rules will introduce some new features, such as the obligation to deliver a replacement product during the repair, or the obligation to repair even if the consumer has made a previous repair with an independent repairer and there are second-hand or 3D-created parts in the product.
It will thus be necessary to analyse the transposition into Spanish law of the new European Directive in order to verify the actual scope of these new developments in the right to repair area.
June 2024
ENERGY
New European Directive on energy performance of buildings approved
SONSOLES GARCIA
Senior Associate
El On 8 May, Directive (EU) 2024/1275 on the Energy Performance of Buildings was published, which establishes the framework for Member States to reduce emissions and energy use in buildings. This Directive repeals Directive 2010/31/EU, with effect from 30 May 2026.
The first review by the European Commission of its implementation will take place in 2028.
Target of the Directive: zero emissions by 2050
The aim of the Directive is to improve the energy performance of buildings within the EU and to reduce their greenhouse gas emissions, with the aim of achieving a zero-emission building stock by 2050. This should take into account outdoor climatic conditions, local conditions, indoor environmental quality requirements and cost-effectiveness.
In particular, the following temporary objectives are set:
Zero-emission new buildings:
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2028: New buildings occupied by public authorities
- 2030: All new buildings
For existing buildings:
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Residential Buildings: Reduction of average primary energy use by 16% in 2030, and by 20-22% in 2035.
- Non-Residential Buildings: obligation to renovate 16% of the least efficient buildings by 2030, and 26% by 2033.
Specific measures adopted by the Directive
1. National building renovation plans:
Member States should adopt a National Building Renovation Plan to ensure the renovation of their national building stock of residential and non-residential buildings, both public and private, transforming them into energy-efficient and decarbonised building stock by 2050, with the aim of transforming existing buildings into zero-emission buildings.
The National Plan will include, among others, the following aspects: an overview of the national building stock and roadmap with targets set at national level; an overview of the policies planned and implemented; an outline of investment needs and financing measures; thresholds for greenhouse gas emissions and for the annual primary energy demand of a zero-emission building.
Member States shall submit the first national plan to the Commission by 31 December 2026 at the latest.
2. Energy performance certificates
By 29 May 2026, Member States must have adopted a national energy certification scheme in accordance with the model set out in Annex V of the Directive. This model establishes a scale of energy performance using the letters A to G. The letter A will correspond to zero-emission buildings, and the letter G will correspond to less efficient buildings.
Member States may define an energy efficiency class A+ corresponding to buildings with a maximum energy demand threshold at least 20 % lower than the maximum threshold applicable to zero-emission buildings, and which annually generate more renewable energy on-site than their annual primary energy demand.
The energy performance certificate shall include recommendations to cost-effectively improve the energy performance, reduce operational greenhouse gas emissions and improve the indoor environmental quality of a building or building unit, except for type A energy performance certificates.
3. Energy efficiency databases
Each Member State shall set up a national energy performance database to collect data on the overall energy performance of the national building stock, as well as information on individual buildings. The aggregated and anonymised data on the building stock shall be publicly accessible.
Once a year, Member States shall ensure the transfer of information from the national database to the EU Observatory on Housing Stock. By 30 June 2025, the Commission shall adopt implementing acts necessary to establish common templates for this transfer of information.
4. Promotion of solar energy in buildings
Member States shall ensure that all new buildings are designed to optimise their solar energy generation potential on the basis of the solar irradiation of the site, allowing for the subsequent cost-effective installation of solar technologies.
The Directive sets specific temporary targets in this respect:
a) By 31 December 2026 at the latest, in all new public and non-residential buildings with a useful floor area over 250 m2;
b) In all existing public buildings with a usable floor area of more than:
- 2 000 m2 , on 31 December 2027,
- 750 m2 , on 31 December 2028,
- 250m2 , on 31 December 2030;
c) By 31 December 2027, for existing non-residential buildings with a useful floor area of more than 500 m2 , where the building is subject to major renovation or an action requiring an administrative permit for the renovation of the building, roof works or the installation of a technical building installation;
d) No later than 31 December 2029, in all new residential buildings, and
e) By 31 December 2029 at the latest, in all new covered car parks adjacent to buildings.
This measure is undoubtedly a strong boost for self-consumption.
5. Phasing out of fossil fuel boilers
From 2025, subsidies for stand-alone fossil fuel boilers will be prohibited. Financial incentives will remain acceptable for hybrid heating systems that use a significant share of renewables, such as those that combine a boiler with a heat pump or a solar thermal system.
June 2024
EMPLOYMENT
The High Court of Catalonia (TSJ) upholds the voluntary resignation of an employee seeking unemployment benefits
BEATRIZ CORRAL
Associate
The High Court of Justice of Catalonia in its Ruling no. 817/2024 of 14 February has partially upholded the ruling reached by the Labour Court of Barcelona by claiming evidence of the employee’s voluntary resignation.
The background to the case can be summarized as follows: an employee, who was on voluntary leave of absence, asked the Company for the possibility of agreeing her contract termination in order to receive unemployment benefits. In this sense, the Company refused and she was told that she had to return to her job or take voluntary leave. As a result, the employee sent the Company a letter indicating her will to resume her job, but asked the Company to reconsider the termination of her contract to receive unemployment benefits. Following that, the employee did not return to work and, as a result of her continuous absences, the Company proceeded to deregister the employee before the Social Security registration, stating her voluntary resignation as the reason. In response to the Company’s termination of her employment, the employee sent a communication to the Company claiming that her absences were merely instances of non-attendance, and brought an action for dismissal against the company
in order to receive unemployment benefits.
The Court now confirms that, based on the proven facts, it is not appropriate to declare disciplinary dismissal for absenteeism, which would entitle the employee to unemployment benefits as she intended, and sees this case as voluntary resignation, which would not entitle her to unemployment benefits, given that it is clear that the employee wished to terminate her employment relationship.
In this sense, the Court, taking up the case law of the Supreme Court with respect to resignation by the employee, establishes that “it is not necessary for an employee’s conduct to conform to a formal declaration of intent, it is sufficient that this conduct proves in an indisputable manner their option to break or terminate the employment relationship”, stating that the employee's will “must be clear, concrete, conscious, firm and definitive, revealing their intention; It may be explicit or implicit; but in this case it must be manifested by conclusive facts, i.e., leaving no room for reasonable doubt as to its intention and scope”.
As this case reveals, absences from work by an employee with the aim of causing a disciplinary dismissal in order to access unemployment benefits may lead to their conduct being considered as voluntary resignation. Also relevant is the risk that the Court may impose a sanction on the claimant employee for assessing bad faith or negligence in their conduct, as has happened on previous occasions when a claimant is aware of the lack of substance of their claim, which unjustifiably sets the jurisdictional activity in motion.
June 2024
DATA PROTECTION
The European Data Protection Board issues an opinion on the “consent or pay” model deployed by large online platforms
FLORENCIA ARRÉBOLA
Senior Associate
The European Data Protection Board (“EDPB”) has issued an Opinion on the “consent or pay” model implemented by large online platforms in which users are asked to consent to the processing of their personal data for the purpose of adapting the advertising offered on the basis of a series of user behaviour patterns when surfing the web (i.e. behavioural advertising) or, alternatively, to pay a fee to access the platforms without their personal data being subject to analysis (“Opinion”).
With this Opinion, the EDPB emphasises the need for data controllers to comply with all the requirements of the General Data Protection Regulation (“GDPR”), especially those related to the valid consent that users of large online platforms give for the processing of their personal data for behavioural advertising purposes.
Furthermore, it recalls that obtaining consent in these contexts does not exempt the controller from complying with the principles set out in Article 5 of the GDPR, as well as with the principles of necessity, proportionality, purpose limitation, data minimisation and fairness.
In summary, we could say that the “consent or pay” model refers to the choice provided by the controller to users to either (a) consent to the processing of their personal data for behavioural advertising purposes, or (b) pay a fee and access the service without their personal data being processed for that purpose.
Alternatives to the “consent or pay” model
The EDPB considers that in many cases large online platforms will not be able to meet the requirements for valid consent if the only option they present to users is to accept the processing of their personal data for behavioural advertising or payment of a fee. Therefore, the Board believes that offering a single alternative should not be the way forward.
Instead, it proposes that the user be offered an alternative, including the following:
(i) An “equivalent” option that does not involve the payment of a fee, nor the use of so much personal data to provide users with behavioural advertising.
(ii) An “additional” option that does not involve the payment of a fee or the processing of personal data for behavioural advertising purposes.
The option indicated in point (ii) above is crucial for assessing whether the consent given is valid under the GDPR, given that offering an “additional” option free of charge and without behavioural advertising has a significant effect on assessing whether consent is valid.
The EDPB emphasises that users' personal data cannot be considered as a tradable good. Otherwise, their fundamental right to data protection would be limited by making it conditional on the payment of a fee.
Requirements for valid consent
For consent to be valid, the following requirements must be complied with:
(i) “Voluntary consent”: To prevent any damage that might override the voluntariness of consent, the fee imposed on users must not be disproportionate to the point of conditioning individuals’ freedom of choice. Damage may be patent when users who do not consent and refuse to pay a fee are excluded from the service, especially if the service is crucial for their social or professional integration.
In this regard, the EDPB points out that data controllers have the obligation to determine whether there is an unequal relationship with the user, taking into account the influence that the online platform has within the market or the dependence that users may have on its services.
In a “consent or pay” scenario, users should be free to select the purposes for which they consent rather than being “forced” to accept a consent request that combines multiple purposes in order to use the service.
(ii) “Specific” consent: it assumes that consent must be given for specific and concrete purposes.
(iii) “Informed” consent: this implies that the information process designed by data controllers should provide users with the necessary information to understand clearly and concisely the scope and consequences of their possible decisions, taking into account the complexity involved in the processing of personal data carried out in the context of behavioural advertising.
(iv) “Unambiguous” consent: it is important that controllers carefully design the way in which consent is sought from users and avoid the use of design patterns that mislead or potentially mislead them when making a decision on whether to consent to the processing of their personal data.
Withdrawal and updating of consent
The EDPB indicates that large online platforms should provide users with an easily accessible mechanism to withdraw their consent to the processing of their personal data in relation to behavioural advertising.
Furthermore, given the nature of the processing of personal data under the “consent or pay” models, the EDPB concludes that the consent given in this context should be limited to a reasonable period of time (e.g. one (1) year).
Conclusions
(i) In the context of “consent or pay” schemes, it is imperative for large digital platforms to ensure that the consent given by users is valid, i.e. voluntary, specific, informed and unambiguous. This is why it can be problematic for these platforms to demonstrate the validity of consent given by users under the GDPR when in practice users are forced to choose exclusively between consenting to the use of their personal data for behavioural advertising or paying a fee to prevent such use.
(ii) Moreover, the “consent or pay” models that have been implemented so far create uncertainty not only as to whether the conditions for valid consent are complied with, but also as to whether the fundamental principles of the GDPR, such as purpose limitation and data minimisation, are respected.
(iii) Finally, it is important to underline that personal data should not be treated as an exchange commodity and that large online platforms should prevent the fundamental right to data protection from becoming a premium service available only to users who agree to pay a fee.
June 2024
TAX
Interpretative developments in restructuring operations
ALEJANDRO PUYO
Partner
The recent rulings issued by the Central Economic-Administrative Court 1 have generated considerable interest in the field of corporate taxation. These decisions, which consolidate doctrine, represent the Central Economic-Administrative Court's first pronouncement following binding consultation V2214-23 carried out with the General Directorate of Taxes, which grants them special significance in the tax landscape.
The consultation submitted to the General Directorate of Taxes outlined a case in which an individual, holding 60% of the share capital of one company (A), intended to contribute their shares to another company (B) of which he was the owner.
Company A had accrued undistributed profits amounting to approximately 2 million euros, and there was no intention to sell A's shares, neither before nor after the contribution operation. Additionally, it was noted that the consultant's participation in Company A held significant implicit gains, raising concerns regarding the taxation of the transaction.
The consultation raised two crucial issues. Firstly, it inquired about the consideration of tax advantage in the context of the restructuring operation. Specifically, it questioned whether the improvement in the tax position compared to the previous situation would constitute a tax advantage and whether this consideration included the elimination of the taxation itself resulting from the transaction. Secondly, it inquired about the taxation of the implicit gains of the shares of A contributed in case the special tax regime was not applied.
The General Directorate of Taxes responded affirmatively to the consultation, indicating that the special tax regime provided for in the corresponding regulations could be applied considering the existence of valid economic reasons for the restructuring of the company. Among the valid economic reasons were the following:
• Simplifying the consultant's business structure.
• Centralizing decision-making in a single company.
• Enhancing the economic capacity of the holding company.
• Separating the consultant's personal assets, limiting potential personal liabilities, as the holding company would undertake the management of the subsidiary companies.
However, subsequent Central Economic-Administrative Court rulings revoke this interpretation, stating that the operation does not meet the requirements established for the application of said regime.
Therefore, one of the main differences between what was raised in the consultation and the Central Economic-Administrative Court rulings lies in the interpretation of valid economic reasons. While the consultation argued for the existence of such reasons, the Central Economic-Administrative Court determines that these are not sufficient to support the operation from a fiscal perspective.
According to the Corporate Income Tax law, the special restructuring tax regime only applies when operations are motivated by valid economic reasons and not by the pursuit of a tax advantage. As valid economic reasons were not found in the case presented, the Central Economic-Administrative Court concludes that the operation is not eligible for special tax treatment.
Central Economic-Administrative Court rulings meticulously examine the arguments presented in the General Directorate of Taxes consultation and establish a clear interpretation of valid economic reasons. In this specific case, it is determined that the reasons presented by the taxpayer are not sufficient to fully justify the operation from a fiscal point of view. This pronouncement unifies doctrine in this matter and establishes an important precedent for future business operations.
The Central Economic-Administrative Court, in its rulings, thoroughly analyzes each of the valid economic reasons alleged in the General Directorate of Taxes consultation to deny their concurrence.
In conclusion, the Central Economic-Administrative Court establishes that in the absence of valid economic reasons, the regularization of the obtained tax advantage is necessary. It is based on the concept of "unconsummated, only prepared or planned fraud," indicating that the correction of abusive effects must be carried out as they occur, avoiding taxing an abuse that has not yet materialized.
To achieve this, it proposes a liquidation system that combines the taxation of capital gains with deferred payment, determining the amount of the effectively produced tax evasion.
This innovative interpretation by the Central Economic-Administrative Court sets clear guidelines for future business operations and their tax treatment.
June 2024
1 Resolutions of the Central Economic-Administrative Court numbers 00/06448/2022/00/00 and 00/06452/2022/00/00, respectively
INTERNATIONAL
German companies’ confidence in the Spanish economy operations
CHRISTIAN LAMM
Of Counsel
The German Chamber of Commerce in Spain (AHK) has published the “spring edition” of its AHK Spain Barometer in May, in cooperation with the Berlin-based German Chamber of Industry and Commerce (DIHK). This is a survey of German companies in the industry, commerce and services sectors, which allows to assess their expectations for the economy and their perception of the economic climate in Spain. It is thus interesting to compare how they have changed over the course of a year.
Regarding “the assessment of the economic situation of their company”, 57% considered it to be good, a clear improvement compared to the result of the survey one year ago ( 47% ).
As for “the outlook for the companies’ situation in the next 12 months”, the results indicate that only 7% think that their situation will worsen, compared to 19% a year ago.
As regards expectations for the development of the Spanish economy in the next 12 months, the majority of companies (58%) expect an unchanged scenario, 17% an improvement and 25% a decline. A year ago, perceptions were more polarised: 25% of companies expected an improvement, 27% a decline and 48% a scenario of no change.
Furthermore, the answers to the question about the development of local investments in the coming months show a slightly less optimistic scenario. While a year ago 33% estimated an increase in investments and 13% a decrease, the latest report indicates that 25% of the companies estimate that their investments will increase and 18% that they will decrease.
Finally, it is interesting to see the way the perception of the main risks facing companies has evolved. Whereas a year ago the main perceived risks were demand (60%), skilled labour shortages (49%) and supply chain disruptions (41%), in the latest edition the economic and political environment became the second biggest risk (54%), behind demand (65%), which remains the most important risk, and well ahead of skilled labour shortages (40%).
In summary: overall, this survey shows a positive perception on the part of German companies, both in terms of their own performance and in the general evolution of the economy in Spain.
June 2024