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E-Commerce: Spanish Laws Apply to Foreign Sellers

 

Autores: María Bardají Cruz, Sascha Villoro Graske, Víctor Mamolar Laorden 

Foreign companies which sell online to Spanish customers may not be aware of it, but they still may be obliged to comply with certain Spanish laws even when they are not established in Spain. 

If your company has Spanish customers, be it through e-Commerce or other forms of distance sale, you should probably consider the following: 

I. Data Protection

The Spanish Data Protection Act ("LOPD") determines that companies which do not have an establishment in Spain but still collect personal data from their Spanish customers are to be considered a controller. However, in absence of an establishment in Spain, the applicable law regarding personal data protection will be that of the country in which the Company is registered. 

Establishment does not necessary imply the existence of a subsidiary or a branch, therefore in some cases an analysis of the circumstances of the company’s business in our country will be required.

II. Information Society Services and E-Commerce

Internet websites and their duties in Spain are regulated under the Information Society Services and Electronic Commerce Act ("LSSICE"). It applies to service providers established in EU member states or countries within the European Economic Area and dictates certain obligations, such as the identification obligation, the publication of a general disclaimer, the collection of the consent of the users in case cookies are used, or any other devices that may process personal data, etc. From a subjective point of view, the LSSICE applies, in general, to service providers established in Spain but it also covers some cases in which said law applies to service providers established in another Member State of the EU or the EEA if (i) the services affect contracts concluded with consumers (ii) and if its recipients (the consumers) reside in Spain.

III. Spanish Consumers Protection

Rome I Convention on the applicable law to contractual obligations determines the applicability of the Spanish Consumer Protection Act when a consumer enters a contract with a professional and so the contract shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional (a) pursues his commercial or professional activities in the country where the consumer has his habitual residence; or (b) by any means, directs such activities towards that country or to several different countries, including that one.

IV. Packaging and Packaging Waste

The Spanish Packaging and Packaging Waste Act stipulates certain obligations regarding the reuse and recycling of the packages introduced by foreign companies into the Spanish market. The main obligation may be fulfilled through two alternative systems: 1) Adhering to an existing Integrated Management System for an annual fee and through individual identification of packaging, the System will take care of your company’s packaging waste; or 2) Establishing their own recycling system and charging their clients for every package that they return (which the company has to accept and properly dispose of).

V. Waste Electric & Electronic Equipment Act

The Spanish Royal Decree 110/2015 on Waste of Electric and Electronic Equipment is a direct transposition of the Directive 2012/19/EU, of the European Parliament and of the Council, of 4 July 2012, on waste electrical and electronic equipment, defines "Producer of Electric and Electronic Devices" as any natural or legal person who sells electronic and electric devices by means of distance communication (such as e-commerce) directly to private households or to users other than private households in a Member State, and which is established in another Member State or in a third country. Producers carry a set of obligations, such as: 1) join a special waste registry; 2) appointing a representative in Spain; 3) achievement of collection and recovery targets; 4) set up triennial prevention plans; etc. The vast majority of these obligations may be fulfilled either by joining an Integrated Management System or by setting up an individual one. 

The aforementioned laws do not apply to just any foreign company, certain criteria must be met, but these criteria just about affect most online stores (or other forms of sales of goods, services and digital content without face-to-face contact with the customer – such as online, mail order or by telephone). Feel free to contact us if you need an in-depth analysis of your company.