Synthesis of the Consumer Code of Catalonia concerning the obligations of companies
- 1.1 Coming into force
- 1.2 Adaptation by companies
- 1.3 Purpose
- 1.4 Definitions
- 1.5 Principle of the inalienability of rights
- 1.6 Subscription to arbitration
2. Requirements of consumer relations
- 2.1 General requirements of consumer relations
- 2.2 Requirements of consumer relations in establishments
- 2.3 Requirements of distance consumer relations
- 2.4 Requirements of consumer relations away from business premises
- 2.5 Requirements of consumer relations in sales by automatic vending machines
- 2.6 Requirements of consumer relations in non-permanent establishments
- 2.7 Requirements of consumer relations through intermediaries
3. Obligations in service provision
- 3.1 Obligactions in all kinds of services provision
- 3.2 Obligations in services for goods
- 3.3 Obligations in basic services
- 3.4 Obligations in on-going services
- 3.5 Obligations in brand-name services
- 4.1 Offences
- 4.2 Penalties
- 4.3 Degree of penalties
- 4.4 Responsibility for offences
- 4.5 Prescription of offences
- 4.6 Application of the most favourable legislation
The Catalan Consumer Code came into force on 23 August 2010.
1.2 Adaptation by companiesMany of the obligations established by this Code were already in effect before it came into force.
The new obligations established by the Second Book of this Law concerning consumer relations are not required of traders who are considered to be microenterprises or small or medium enterprises until 23 July 2011.
For all other companies these obligations are requirements from 23 January 2011.
It should be noted that this period of adaptation is for new obligations only.
See the information notice for traders and merchants about the coming into force of Law 22/2010, of 20 July, on the Catalan Consumer Code.
1.3 PurposeEnsure the defence and protection of consumers and establish in Catalonia the principles and regulations that are designed to improve the quality of life of consumers.
1.4 DefinitionsArticle 111-2 provides various definitions for the purposes of this Law. They include the definition of consumers and service users as natural or artificial persons acting in consumer relations outside the sphere of commercial or professional activities.
This definition excludes natural or artificial persons that act in the sphere of business or professional activities and are therefore not covered by this Consumer Code. However, these people as users of services or products are protected by the rights afforded to users of services and products by sector regulations.
It is considered that all actions carried out by a commercial company (limited liability or public limited) are designed to further its corporate purpose and hence are within the scope of its business or professional activities. Consequently the consumer relations of a limited liability or public limited company are not covered by this Code.
As for natural persons or civil-code partnerships, they are considered to be acting as part of a business or professional activity if the invoice for the service or product in the consumer relation is deducted as a tax allowance or business expense. The Consumer Code would not be applicable in this case either.
It also defines the consumer relation as any relationship established between on the one hand traders, intermediaries or the government as providers of goods and services, and on the other hand consumers. This relation encompasses information, offers, promotions, advertising, commercialisation, use, sale and supply of goods and services, as well as the resulting obligations.
1.5 Principle of the inalienability of rightsIn accordance with Article 112-3, the rights granted under this Law to consumers cannot be waived and any agreement that excludes them is void.
1.6 Subscription to arbitration
Article 133-4 stresses the importance of subscription to the arbitration system by companies in that it establishes subscription to consumer arbitration as an objective merit in granting awards for quality which are established or may be established.
It also states that the government authorities in Catalonia should take the subscription to consumer arbitration into consideration in the allocation of funding and grants to companies and establishments which offer goods and services to consumers.
Public companies subject to private law are required to include clauses concerning subscription or a commitment to consumer arbitration to settle disputes and claims arising from service provision in the terms and conditions of contracting and contracts with consumers, and its use is decided exclusively by the consumer.
The contracting agencies of the Government of Catalonia and its public bodies and companies must include subscription to consumer arbitration as a condition of implementation in the award of contracts.
2. Requirements of consumer relations
Consumer relations in Catalonia are governed by the provisions of this Law, except in cases in which specific sector regulation provides greater protection to the rights of consumers.
Traders engaged in the sale of goods or provision of services, regardless of type and sector, must meet the obligations set out in the Second Book of this Law referring to consumer relations and also any applicable specific sector and general civil regulations.
2.1 General requirements of consumer relations
1. Advertising and information
The price should indicate the total amount to be paid and, if necessary, must give a breakdown of the various items that it includes, such as taxes, fees, additional costs chargeable to the customer and other similar items. If additional costs cannot be calculated in advance, it should be indicated that they exist and what the calculation method is. This information must be easily visible by the consumer before contracting so that it does not mislead or deceive.
Prices or conditions cannot be increased as a result of the procedure or means of payment by amounts exceeding those costs that the trader has to bear directly as a result of the acceptance of the means of payment in question.
In case of deferred or instalment payments that accrue interest, the instalments, amounts and frequency of payments, the total cost and the parts of it accounted for by interest, other expenses and the good or service must be specified along with the guarantees required to ensure the payment of deferred amounts.
In the event of advance payments against the final price, the consumer must be informed of the conditions applicable in the event that the transaction is not completed.
Traders are required to document material information in writing or on any other medium that enables its storage and which has a duration equivalent to at least the useful life or conformity of the good or service.2. Service for consumers
Traders are required to:
a) Attend to and provide the information requested by consumers.
b) Attend to and immediately and appropriately report any incident or circumstance that affects the normal functioning of consumer relations and minimize and mitigate any resulting damages.
c) If the trader has a customer service telephone line, it cannot be a premium rate number and consumers must be told the number. This means that 902 and 901 phone numbers are allowed, but not 800 and 907 ones.
d) Ensure that consumers can submit complaints in writing or on any other durable medium regarding any incidents that affect the normal functioning of consumer relations and respond to complaints within at most one month.
e) Provide consumers with the address, customer service phone number and fax number or email address which they can contact in order to ask for information about goods or services or make a complaint.
3. Language requirements
In their consumer relations consumers are entitled to be served both orally and in writing in the official language they choose. This means that the trader or the person who represents them "must understand" the customer whether they express themselves in Catalan or in Spanish, although there is no specific obligation to speak one of the two languages.
Consumers are entitled to receive in Catalan:
a) Invitations to buy, standard information, contract documents, quotations, certificates of deposit, bills and other documents to which they refer.
b) The information required for the consumption, use and proper handling of goods and services, in accordance with their characteristics, regardless of medium or format used.
c) Standard form contracts, contracts with standard clauses, regulated contracts, general terms and conditions and documentation arising from or referring to these contracts.
These documents and information must be immediately available to consumers in the official language they choose.
Advertising for services with prices included that is carried out and included in the media does not have to be in Catalan. However, if the advertising is in the form of an offprint or insert included in the media, it must be in Catalan.
4. Payment in advance
The following requirements must be met for payment in advance of all or part of goods and services:
- It must be stated in the quotation or have been advertised with a poster or sign.
- Payment in advance does not entail the consumer’s conformity with the adequacy of the service or any waiver of their rights.
- The trader must have insurance to cover reimbursement of advance payments by consumers. This obligation is applicable when the amounts paid in advance are greater than 25% of the total amount of the transaction and are above €100.
In the case of distance contracts (over the internet), the Consumer Code is applicable when the trader supplies goods or services in Catalonia. For this reason, the amounts advanced for contracts with consumers residing in Catalonia must be insured, whatever the domicile of the company.
5. Requirements of offers and promotions
a) The start date of the promotion or offer.
b) The length of the promotion or the number of units available on offer or the number of consumers who can benefit from the promotion.
c) The requirements to be met by consumers.
d) The conditions, quality and features of goods or services in the promotion and the advantages of the offer or promotion.
e) Who is responsible for the promotion, indicating their name or business name and the address of the establishment(s) where the best conditions can be found, unless the promotion relates solely to the establishment where it is on offer.
If promotions or offers are advertised for a period of time, this period should be specified and the company has to be able to meet the demand of consumers. Promotions with a manifestly inadequate number of units based on the length and advertising for the promotion or offer and usual sales are not allowed.
If the promotion states the number of units or people who can benefit from it, consumers must be informed of the system of priority employed to meet demand.
If the number of units per consumer is limited, this must be stated in advertising and posters.
6. Reduction in price
If the most beneficial conditions consist of a reduction in prices, this reduction must be clearly indicated and the normal price and the reduced price must be stated.
This information may be replaced by the percentage reduction in the price of each good or service.
In the case of introductory offers where the good or service has not been on sale or available before, the expression “oferta de llançament” (special introductory offer) must be stated in advertising and on posters.
7. Gifts
If a gift is offered the following must be stated in advertising and in the establishment:
a) The obligations entailed by receiving it, including tax ones.
b) The conditions for delivery of the gift.
c) The conditions and limitations that must be met to obtain the gift.
d) Clear and concise instructions to follow to obtain the gift.
The gift must be given within one month from when the consumer has complied with all procedures established under the terms and conditions of the invitation.
If a person has won an item in a draw which they did not enter voluntarily, presentation of the prize cannot be made subject to the purchase or taking out of a good or service.
8. Complaint forms
All traders are required to have complaint forms available for consumers in the manner established by regulations.
9. Right of withdrawal
If the trader offers the right of withdrawal or is required to do so by a regulation, they must state the following in the invitations to buy and in contractual documents:
- The period during which the consumer may exercise their right of withdrawal.
- The conditions for exercising the right of withdrawal.
- The arrangements for return of goods or services.
In cases in which the law grants the right of withdrawal, the withdrawal document must contain at least the following information:
- Its identification as a withdrawal document.
- The name and address of the recipient.
- The identifying details of the contract and the contracting parties.
The right of withdrawal legally granted to consumers is governed by the specific legal provisions in each case and failing that by the Consumer Code.
2.2 Requirements of consumer relations in establishments
1. Prices and payment terms requirements
Establishments must state the full price, including taxes. This information should be visible, so as not to mislead or deceive.
The full price including expenses and taxes must be indicated in invitations to buy.
If cards and other means of payment are accepted on a regular basis, their use may not be limited at certain times or under certain conditions.
2. Obligations of establishments
Establishments must meet the following obligations:
a) The obligations laid down by the general requirements above, if applicable to the kind of consumer relation, offer or promotion.
b) Give a prior quotation at consumer request.
c) Give an invoice, receipt or proof of the transaction containing the following items:
a. Name or company name, taxpayer identification number and full address of the establishment.
b. Goods acquired or services rendered and the price of each one.
c. Total price including taxes and itemized if necessary.
d. Date of the transaction.
3. Information about opening hours
Establishments must state the hours that they are open to the public. This information should be visible from outside the establishment even when it is closed.
2.3 Requirements of distance consumer relations
Distance consumer relations means those executed without the simultaneous physical presence of the trader and the consumer if the offer and acceptance are made exclusively by means of distance communication as part of a distance contracting system organized by trader. This includes telephone contracting, contracting by correspondence and contracting made through audiovisual and electronic media.
1. Consumer information
All distance contracting proposals must include:
a) The identity of the supplier of the good or service.
b) Identification of the contract proposal. The lack of response to the proposal does not entail acceptance.
c) The procedure to be followed and requirements necessary to execute the contract.
d) The cost of using the distance communication technique where this is higher than basic service costs.
e) Information about the good or service.
f) The total price. The amount for delivery expenses must be stated separately if it is to be paid by the consumer.
g) The method and maximum term of delivery of the good or performance of the service.
h) Information about the right of withdrawal when required. It must be stated that it is only legally applicable when no provision has been made for a specific date or period for the performance of the service.
i) Payment methods.
j) Guarantees and after-sale service.
This information must be provided in a format appropriate to the distance communication technique employed and which may be stored by the consumer.
2. Contractual documentation
The trader must give to the consumer all documentation relating to the contract and to acknowledgement of payment, as well as the document relating to exercise of the right of withdrawal, where appropriate.
2.4 Requirements of consumer relations away from business premises
Consumer relations away from business premises are those in which the goods or services are offered with the physical presence of the trader and the consumer away from the supplier’s business premises. They include amongst others consumer relations in the customer’s home, workplace, in places of recreation, in meetings and on organised excursions.
1. Consumer information
The consumer must be provided with the following information:
a) Information relating to the good or service.
b) The total price. The amount for delivery expenses must be stated separately if it is to be paid by the consumer.
c) The maximum delivery term of the good or performance of the service.
d) Information regarding the non-acceptance of the right of withdrawal, if required by the purpose of the contract.
e) Guarantees and after-sale service.
2. Contractual documentation
The trader must give to the consumer all documentation relating to the contract and to acknowledgement of payment.
If a consumer is entitled to exercise the right of withdrawal, the trader must provide the consumer with the following documentation:
a) A document containing the date, the consumer’s signature and information about the right of withdrawal.
b) The document for exercising of the right of withdrawal.
It is the trader’s responsibility to prove compliance with these obligations.
2.5 Requirements of consumer relations in sales by automatic vending machines
Consumer relations in sales by automatic vending machines are those in which the consumer acquires the good or service directly from a machine prepared for this purpose, by means of the operation of a mechanism and following payment of the appropriate amount.
The machine being installed on the premises of the vendor does not deprive the relation of its automatic condition.
1. Consumer information
a) The identity of the supplier of the good or service, an address and a free telephone number to attend to consumers who may wish to make a complaint.
b) Identification and essential characteristics of the good or service, except where their content is obvious.
c) Instructions on how to obtain the good.
d) The exact price of the good or service, the types of payment card, coins and notes accepted by the machine and an indication as to whether the exact amount must be inserted or it gives change.
e) How to operate the automatic system that enables recovery of coins or notes in the case of error, non-existence of the good or service or malfunction of the machine.
The machine must be fitted with a system that enables consumers to obtain a receipt for the transaction carried out, in accordance with that established in Article 212-2.3, and be equipped with a system that enables cancellation of the transaction prior to acquisition of the good or service without charge to the consumer.
2. Responsibility
In general, those responsible for compliance with that established in this chapter are the machine operators. Machine operators means those traders who receive a benefit directly related to the activity of the machine.
If the machine operators are not identified, those responsible for the machine are the owners of the establishment where the machine is located, who will be jointly and severally liable with the machine operator to consumers for compliance with the obligations established in Article 224-2.
2.6 Requirements of consumer relations in non-permanent establishments
Consumer relations in non-permanent establishments means those which traders carry out away from a permanent establishment on a regular, occasional, periodical or continuous basis, in duly authorised areas and locations.
Consumer relations in itinerant trading means those which traders carry out on a regular, occasional, periodical or continuous basis in locations and areas that are not previously established.
2.7 Requirements of consumer relations through intermediaries
Intermediary means any trader who on behalf of another person and in return for remuneration of a pecuniary nature or in the form of any other agreed economic advantage, regularly engages in any of the following activities:
a) Presentation or offer to consumers of the possibility to acquire goods or services.
b) Preliminary arrangements for the execution of a contract with consumers.
c) Execution of the contract with consumers.
d) Advice to consumers with regard to the legal transaction in which they act.
1. Consumer information
Before providing any service to a consumer, the intermediary must supply the following information:
a) Their identity and address.
b) Details of the entry in the corresponding register if applicable.
c) The scope of their powers.
d) An indication as to whether they work exclusively for one trader or as an independent intermediary.
e) The actual, fixed price of their intermediary activity (handling fee).
f) The information required for distance contracting if intermediary services are offered using electronic media.
g) Information about guarantees and extrajudicial systems of dispute resolution in consumer affairs.
This information must be included in all documents presented to the consumer by the intermediary.
Intermediaries must offer true and full information in the promotion and supply of the goods and services they market and in their advisory activity in general.
The consumer must be able to store the information on a documentary medium. This right is understood to be upheld if a copy of the information is supplied on paper or on another medium which enables its electronic storage and subsequent reproduction. It is the intermediary’s responsibility to prove compliance with this provision.
In advisory activities the intermediary must provide clear and easily understandable information about the nature, features, conditions and use or purpose of the goods or services.
2. Obligations
Intermediaries must carry out commercial transactions with professional diligence and responsibility, respecting legality and the codes of ethics of the sector in which they practice their professional activity.
If the consumer pays an amount on account prior to executing the contract, the intermediary will be considered the trustee of this amount until the formalisation of the contract and may not use it as an advance on their remuneration.
3. Liability
Intermediaries are liable for any failure to execute the contract if this derives from breach of their obligations to inform and advise.
All traders who use an intermediation service are jointly and severally liable for the purposes of that established in this Code.
3.1 Obligactions in all kinds of services provision
1. Consumer information
Traders who offer or provide any type of service in Catalonia or who advertise the same are subject to the obligations listed below:
a. Inform consumers of the full price of the service including all types of taxes, charges and levies by means of a visible sign in the establishment or of a tariff notice or price list.
b. They must present to consumers a prior quotation for the service if the consumer is unable to calculate the price directly, except when the latter expressly waives preparation of the quotation in a signed, written document.
2. Obligations
The quotation must contain at least the following details:
a) The identity of the service provider.
b) The reason for or object of the service.
c) The expenses to be paid by the user.
d) The validity period of the quotation.
e) The anticipated initiation date of the provision and duration of the service.
f) The quotation date and signature of a person representing the service provision company.
g) The date of acceptance or refusal of the quotation by the service user, with spaces of equal size reserved to sign either option.
Copies of quotations must be kept for a minimum period of six months from non-acceptance of the quotation or from finalisation of the service.
Quotations that are not accepted may be charged for if this is indicated in the price list or tariff or if the consumer has been expressly informed of this condition, though the amount charged may not exceed the price indicated or the actual time employed in drawing it up.
Quotation prices may in no case be greater than those advertised.
Once the service is completed and paid for, traders must present an invoice, sales slip or payment receipt. Likewise, if instalment payments are made for the service, a receipt must be issued to the consumer for each payment stating at least:
a) Identification of the service provider.
b) The object of the service and indication of whether the payment is on account or an instalment.
c) The amount paid on each occasion.
d) The total amount paid to date and the total amount pending payment.
e) The date and signature of a person representing the establishment.
Regulations on safety, health, hygiene, personal privacy, data protection and other obligations established in specific regulations must be observed in the provision of these services. Furthermore, if the service provision involves health and safety hazards for people, they must be informed and pertinent warnings given.
3.2 Obligations in services for goods
If the good has to be deposited in order for the service to be provided, the consumer must be given a deposit receipt which must contain at least the following details:
a) Identification of the establishment, with the name or company name, address and tax identification number.
b) Identification of the person depositing the good.
c) Identification of the good.
d) Description of the service in as much detail as possible.
e) Date of reception of the good and anticipated duration of the service.
f) The period following which the right to recover the deposited good expires.
g) The signature or any other means of identifying the person representing the service provision establishment.
The depositary must keep a copy of the deposit receipt for at least three years from when it was issued.
The consumer loses the right to recover the deposited good once a period of three years has elapsed from the date of deposit. Three months prior to the expiration of this period, the service provider must reliably inform the consumer who deposited the good of the date of expiry and how the good will be disposed of. If the consumer has not objected by the time the period expires, the service provider may dispose of the good in the way established by law.
3.3 Obligations in basic services
1. Consumer information
Providers of basic services must provide consumers with relevant information regarding the provision, in writing or in a manner adapted to the circumstances of the provision.
2. Obligations
Upon entering into the contract, the service provider must provide a physical address in Catalonia where the consumer may be attended to quickly and directly with respect to any complaint or claim regarding the service, provided customer service is not offered in the same establishment where the service is contracted. A customer service telephone number must also be made available free of charge to attend to incidents and complaints.
Contracts must contain information regarding the place where service users can process complaints or claims against the basic service provider and the procedure for doing so. Information must also be provided regarding whether the service provider subscribes to a consumer arbitration system and of the consumer’s possibility to approach these organizations to resolve disputes.
Pre-contractual and contractual information must indicate the existence of compensation, refunds or indemnifications in the case of the company’s non-fulfilment of the basic service quality established by regulations or by the company itself. Information must also be provided about the mechanisms to implement the measures referred to in section 3 and about the method of calculating the amount.
Companies that provide basic services must ensure that standard form contracts are provided to people with disabilities on request in a medium accessible to them.
3.4 Obligations in on-going services
The Consumer Code establishes that the procedure for unsubscribing to an on-going service must not contain more requirements or be more difficult than the procedure for subscribing to the same service. Upon contracting an on-going service, information must be provided regarding the procedure to unsubscribe and the compensation, penalties and payments entailed if the consumer does so.
On-going service provision may not be interrupted due to non-payment of a bill or invoice if the consumer has presented a claim with respect to such bill or invoice against the service provider or through judicial or extrajudicial dispute resolution mechanisms.
In order to interrupt the on-going service and to include the consumer in bad-debt files, at least two unpaid bills or invoices must exist in respect of which no claim is pending resolution, provided they have not been the object of any claim by the consumer, that the consumer has been reliably informed of the consequences of such non-payment and has been given a period of not less than ten working days to pay said bills or invoices.
3.5 Obligations in brand-name services
With respect to consumers, providers of brand-name services are obliged to undertake all procedures, resolve incidents, provide information about goods and services and honour commercial guarantees as if they were the company to which the brand they exhibit belongs.
In no case may they advertise brands or logotypes that induce error or confusion on the part of consumers regarding the nature of the brand or service, or the relationship of the establishment to the brand.
If the brand-name service providers are authorised to subscribe consumers to an on-going service they must also unsubscribe them when so requested, with the same requirements as for subscription. The consumer must be presented with a document acknowledging the request to unsubscribe.
If service providers apply prices or expenses authorised or decided by the owner of the brand they represent, they must make price tables or tariffs drafted by the brand owner available to consumers.
Brand-name service providers are bound by the advertising and offers made by the brand owner in relation to the goods or services they market, except when the establishments included in the promotion or offer appear in the advertising document and the provider is not amongst them.
Offences are classified into three levels: minor, serious and very serious.
Penalties are as follows:
- Minor offences: a fine of up to €10,000.
- Serious offences: a fine of between €10,001 and €100,000, which can be increased up to five times the value of the goods or services concerned in the offence.
- Very serious offences: a fine of between €100,001 and €1,000,000, which can be increased up to ten times the value of the goods or services concerned in the offence.
Complementary to these penalties, it may be agreed to impose the following additional penalties:
- Confiscation and destruction of goods
- Temporary closure of the offending company
- Public rectification
- Publication of the penalty
The Law also provides that, independently of these penalties:
- The sanctioning body shall impose upon the offender the obligation of immediately reimbursing the amount obtained unduly, in the case of prices applied that are higher than those authorised, communicated, estimated or announced.
- The decision may be taken in sanctions proceedings to require the offender to restore the situation altered by the offence and, if applicable, to indemnify for proven damages to consumers.
Article 333-2 lays down that in order to determine the amount and extension of penalties within the minimums and maximums established, the following aggravating, extenuating and mixed circumstances will be taken into consideration.
The following are aggravating circumstances:
a) Recidivism or repetition of the unlawful conduct.
b) Failure to comply with earlier warnings or notices to correct the irregularities detected issued by the Government.
c) The prominence of the offender's market position.
d) The fact that those affected are especially protected groups.
The following are extenuating circumstances:
a) Diligent total or partial repair or amendment of the irregularities or damages that led to the initiation of penalty proceedings.
b) Submitting the facts to consumer arbitration.
The following are mixed circumstances:
a) Business turnover in relation to the facts concerned in the offence, and the company’s financial means.
b) The amount of the profit obtained.
c) The amount of damages caused to consumers.
d) The number of consumers affected.
e) The degree of intentionality.
f) The period during which the offence was committed.
Aggravating or extenuating circumstances will not be taken into account if this law includes them in the type of offence or if they have been taken into account in classifying the gravity of the offence.
Penalties must be imposed in such a way that committing the offence is not more beneficial to the offender than compliance with the law.
4.4 Responsibility for offences
Those responsible for offences typified by this law are the natural or artificial persons that commit them.
In offences committed that relate to the provision of services, the company or business name obliged to provide them, either legally or by agreement with the consumer, is considered responsible for the offence. If lack of due diligence by an intermediary in the provision of a service can be demonstrated, then they are considered responsible.
If different subjects intervene in the production, manufacture or sales chain for the goods or services, each is responsible for any offences they may have committed.
Persons that cooperate in the commission of an unlawful act or cover up for it are jointly and severally responsible for offences.
If an artificial person is accused of an offence, the people who form its governing or managing bodies may also be considered responsible. This means those people who are named in public registers as such, those that have demonstrated publicly to be such and those that have acted as if they were such.
Offences prescribe:
- Minor offences: 2 years
- Serious offences: 3 years
- Very serious offences: 4 years
4.6 Application of the most favourable legislation
The precepts of this law do not apply to proceedings brought before its entry into force, unless these are more favourable to the alleged offender, as in this case they will be applied retroactively.
This law is only applicable to offences committed after its entry into force.
