Spanish Consumer Law: A Comprehensive Analysis of Retail and Consumer Concepts
[A] Legal > [m] Consumer and Retail > [u] Consumer Concept
ITEM 1 – The Concept of Consumer Retail
1 .- Legal Framework
To begin, it is necessary to provide a comprehensive overview of the regulatory framework and existing competences in consumer matters, specifically concerning retail consumers.
Our starting point is the Spanish Constitution of 1978 (hereinafter, CE). Regarding consumer law regulation, the CE did not attribute that power exclusively to the State nor did it include it as a specific competence of the Autonomous Communities.
Therefore, this matter does not appear in Articles 148.1 and 149.1 of the CE, which list the powers of the state and regions. Due to this lack of allocation, Article 149.3 CE was applied, which states:
“Matters not expressly assigned to the State by this Constitution may be the Autonomous Communities by virtue of its statutes…”
Thus, the Autonomous Communities (hereinafter CCAA), in the absence of express provision, applied this article. This has resulted in a complex interplay of state and regional competences, leading to various aspects of regulation with varying degrees of implementation.
At the state level, we find Law 7/1996 of January 15, on Retail Trade and Royal Decree 1/2007 of November 16, approving the revised General Act for the Defence of Consumers and Users. Almost all autonomous regions also have their own laws governing retail trade and consumer protection.
It is important to note the influence of Community law on domestic regulation. As a member of the European Union, Spain is obligated to transpose EU rules on certain matters. This has led to the transposition of various Community directives into our legal system, regularizing, clarifying, and harmonizing legal texts, as seen in Royal Decree 1/2007.
The increase in consumption due to economic development led to the emergence of a new social group: consumers. Article 51 CE recognizes the need to protect consumers by stating:
“1. The public authorities shall guarantee the protection of consumers and users, protecting their safety, health, and legitimate interests.
2. Public authorities shall promote information and education of consumers and users, foster their organizations, and hear them on issues affecting their members, as established by law.
3. As provided in the preceding paragraphs, the law shall regulate domestic trade and the system of licensing commercial products.“
Finally, the current Law 7/1996 of January 15, on Retail Trade, is slated for repeal following the approval of an amending bill currently under Senate processing. Further developments will be discussed in a future update.
2 .- The Concept of Consumer in the Spanish Legal System
The term “consumer” is first used in Article 51 CE, which, while establishing a general principle of “consumers and users,” did not define its subjects.
From an economic standpoint, a consumer acquires or uses goods or services to satisfy personal and/or family needs. Therefore, the consumer does not acquire goods and services for use in their work or other production processes of goods and services for the market. From this perspective, the concept of consumer is identified with the final recipient of goods and services.
In the legal field, however, this concept is less clear. Analyzing community, state, and regional laws reveals that the concept of consumer reflects different perspectives. Sometimes, the legislature uses the term broadly, equating consumers with citizens, as in the Constitution. Other times, it is restricted, as in consumer credit regulations, or broader, as in the law of general contractual conditions, even allowing entrepreneurs to receive consumer-like treatment.
This implies that there is no general, applicable concept of consumer in our legal system or in other European environments in the absence of specific sector provisions.
3 .- Consumers and Users in Royal Decree 1/2007 (Revised Text of the TRLGDCU)
The preamble of the TRLGDCU defines consumers and users as natural or legal persons acting outside a business or professional activity.
That is, they are involved in private contracting for goods and services as an end, without incorporating them, directly or indirectly, into production processes, marketing, or provision to third parties.
Article 3, “general concept of consumer and user,” states:
“For the purposes of this rule and except as expressly provided in its third and fourth books, they are consumers or users of natural or legal persons acting in an area outside a business or professional activity.”
This definition addresses whether legal persons can be considered consumers and users, clarifying that they can be, contrary to previous interpretations.
This recognition requires criteria to determine when legal persons can enjoy this status. The TRLGDCU definition clarifies that all commercial activities aim to achieve economic benefits, as stated in Articles 3 and 4.
The previous definition, which only recognized legal persons as consumers and users when they had no lucrative purpose, is abandoned. The TRLGDCU relies on the final destination of goods or services. A challenge is determining a priori whether the recipient is acting outside their business or will not allocate the goods to a production process. Many of these problems are solved by including a statement acknowledging that the purchaser is acting for purposes outside their trade or profession (e.g., loyalty cards).
4 .- The Consumer in the Law of Retail Management
Unlike other laws dedicated to consumer protection, the Law of Retail Management (hereinafter LOCM) does not delimit its scope by reference to participants but objectively, by reference to retail activity.
The LOCM does not provide a general concept of the consumer. However, when defining retail, it refers to the final destination of goods. Article 1.2 of LOCM defines retail as “the professional activity for profit consisting in offering the sale of any class of goods to the final consumer, using or not an establishment.”
This broad definition seems to equate consumers with the buying public in general.
The Explanatory Memorandum of LOCM states:
“…The law not only aims to establish a level playing field in regular distribution and new contractual arrangements but also aims to be the basis for the modernization of Spanish commercial structures, helping to correct imbalances between large and small commercial enterprises and, especially, the maintenance of free and fair competition.”
This shows that the objective of LOCM is not solely consumer protection. Many rules have nothing to do with this purpose (e.g., vendor payments, joint sales bans).
The LOCM has two policy blocks: rules governing the general legal regime of retail (Part I), focusing on tensions between small shops and supermarkets; and sales promotion activities and special sales (Parts II and III), which may have different policy motivations (e.g., sales or clearance sales).
Therefore, the legislature uses broad concepts like “final recipients” to define the scope.