JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following law.

PREAMBLE

I

The European Union's regulatory activity introduces significant changes in different areas of the internal market which have an intense interrelationship with each other, as they are, in the interests of unfair competition, advertising, the protection of consumers and retail trade.

Some changes that have been operated, first, by Directive 2005 /29/EC of the European Parliament and of the Council of 11 May 2005 on the unfair commercial practices of companies in their relations with the European Union. consumers in the internal market, amending Council Directive 84 /450/EEC, Directives 97 /7/EC, 98 /27/EC and 2002 /65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices).

And, secondly, by Directive 2006 /114/EC of the European Parliament and of the Council of 12 December 2006 on misleading and comparative advertising, which codifies the amendments to Directive 84 /450/EC.

The incorporation into Spanish law of these directives, which carries out this law, has led to an important modification of several laws: Law 3/1991, of 10 January, of Unfair Competition, which regulates in a unitary way the recast text of the General Law for the Defense of Consumers and Users and other complementary laws, approved by the Royal Legislative Decree 1/2007 of 16 November, which brings this protection to the scope of the previous law; the Law 7/1996 of 15 January 1996 for the Management of Retail Trade and Law 34/1988 of 11 November 1996 Advertisement General.

II

Directive 2005 /29/EC provides for a series of conduct within the framework of unfair competition, placing the emphasis on its undesirable effects vis-à-vis consumers. This law is born with the purpose of ensuring that consumer protection legislation is integrated in a coherent manner within the market regulation, established here by the Law of Unfair Competition, as a means of ensuring that this protection is the more effective and that the market rules are not disintegrated.

The rules imposing the protection of free competition or prohibiting unfair competition protect consumers in the same way as they protect the functioning of the market and the interests of economic operators. act on the same. That is why this law articulates the protection of consumers, taking into account the requirements of the market itself and the legitimate interests of the economic operators acting on it.

The amendments introduced in the Law on Unfair Competition begin by taking into account the impact of another important European Union rule, as is Regulation (EC) No 864/2007 of the European Parliament and of the Council, of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), which allows any reference to its territorial scope to be deleted.

The general clause is modified to clarify that, in the relations of the businessmen or professionals with the consumers, the disloyalty of a behavior will be determined by the concurrence of two elements: that the behavior the employer or professional is contrary to the professional diligence which is required of him in his relations with consumers, and that he is liable to significantly distort the economic performance of the average consumer (understanding by the consumer or average user) or the average member of the group to which he/she is the practice.

The concept of "average consumer" has been coined by the case-law of the European Court of Justice not in statistical terms, but as the typical consumer reaction normally reported, reasonably attentive and insightful, taking into account social, cultural and linguistic factors. As a result, it is not a term for the law to define, but it must be the courts that will carry out their concreteness in each specific case.

That the reference to rating behavior as disloyal is the typical reaction of the average consumer does not mean, however, that more vulnerable groups of consumers are left unprotected, since the law requires that In the light of the typical reaction of the average consumer to whom the practice is directed, or the typical reaction of the average consumer of a particularly vulnerable group, where the act of competition is only liable to alter the economic performance of a particular group of particularly vulnerable consumers, already by personal circumstances or social.

A unitary legal regime is established on the disloyalty of acts of deception and aggressive, with the same level of correction being required regardless of whether their recipients are consumers or entrepreneurs. The traditional distinction between unfair acts and the regulation of illegal or misleading advertising is thus far exceeded.

It is important to highlight the option of maintaining the General Advertising Law, beyond a purely contractual rule. The importance of advertising in the decision-making process of citizens is growing and transcends the mere consumerist or concurrent scope, so a norm with a generalist vocation becomes indispensable, respecting, in all the objectives of harmonisation of the European directives which this law incorporates into our legal system.

Therefore, it takes special sense to experience the concept of illegal advertising in the field of the General Law of Advertising, guaranteeing the actions and remedies that enable its repression, especially in the face of the publicity that (a) the rights and values recognized in the Constitution, significantly in terms of children, youth and women, are against the dignity of the person.

The problem arises sometimes because of the competition between the General Law of Advertising and the Law of Unfair Competition, which makes it necessary, and thus the case law, the introduction of coordination mechanisms. In this sense, the General Law of Publicity is amended, with the aim of having the same body of actions and remedies against all commercial practices that harm the economic interests of consumers, without giving up regulation specific to the advertising and without prejudice to the special legitimization that in the General Law of Advertising is established in the face of the illegal advertising to use in a vexatious way or discriminatory the image of the woman.

In line with this approach, Title IV of the rule that is empty of content should be repealed.

Moreover, a full chapter of the law is devoted to regulating acts of unfair competition which, affecting competitors as well, are considered to be only liable to harm their recipients when they are consumers and users. Such is the case for misleading omissions or practices which the Community rule states are unfair in any event and whatever the circumstances in which they occur.

A new chapter is introduced to regulate codes of conduct which, with full respect for competition rules, contribute to raising the level of consumer and user protection through access to systems. effective out-of-court settlement of claims that meet the requirements laid down by Community legislation, currently contained in the European Commission's Recommendations 98 /257/EC and 2001 /310/EC and as such notified to the European Commission in accordance with the provisions of the Council Resolution of 25 May 2000, concerning the Community network of national bodies for the out-of-court settlement of consumer disputes or any equivalent provision. This regulation includes the exercise of actions vis-à-vis employers who are publicly attached to codes of conduct which infringe on the obligations freely assumed or are engaged in acts of unfair competition and against those responsible for such acts. codes when these encourage unfair acts.

Finally, the chapter of the Law on Unfair Competition is amended, dedicated to rules of a procedural nature, in order to incorporate the rules on the burden of proof in relation to the veracity and accuracy of the statements of fact by employers or professionals and to incorporate the actions of cessation in the face of unfair practices which harm the economic interests of consumers and, in coherence with the regulation adopted on the codes of conduct, actions vis-à-vis employers who are publicly attached to codes of conduct which they infringe on the obligations freely assumed or are engaged in acts of unfair competition and against those responsible for such codes where they encourage unfair acts.

III

The recast text of the General Law for the Defence of Consumers and Users and other complementary laws is amended in order to establish clearly in which, in accordance with the preeminence of Community law, the Commercial practices of entrepreneurs directed to consumers are governed solely by the provisions of the Law of Unfair Competition and in the recused text itself of the General Law for the Defense of Consumers and Users and other laws (i) supplementary, without requiring employers or professionals to impose other obligations; or prohibitions other than those laid down in those rules where the title in which they are founded is the protection of the legitimate economic interests of consumers.

This general rule is established, and the compatibility of this regime with the specific regulation dictated for reasons other than the protection of legitimate interests is clarified in the terms provided for in the Community standard. (i) consumers, with the specific rules governing commercial practices in the rules which constitute the transposition of Community directives on the protection of consumers and users and, finally, with the more protective provisions relating to financial services or immovable property.

Also incorporated into the recast text of the General Law for the Defense of Consumers and Users and other complementary laws, the obligations of information to consumers in those commercial practices that include information on the characteristics of the good or service and its price, enabling the consumer or user to make a decision on the procurement.

It is adapted, on the other hand, to the contractual regulation on price information in order to bring it more into line with the requirements of the standard on information to be provided in commercial practices; general arrangements concerning the obligation to provide the consumer with a prior budget in those services where the final price can be fixed only in this way, a deposit safeguard where the execution of the contracted benefit requires the the deposit of the good, and the documentary justification for the delivery of the product, in the cases of failure in accordance with the contract, in order to ensure the exercise of consumer rights.

The classification as a violation of the consumption of unfair commercial practices is also introduced, without this provision having any effect on the attribution or modification of the administrative powers conferred by the legislation, State or regional authorities, other sectoral public administrations.

The Law on the Management of Retail Trade is amended in order to bring the regulation on promotional sales into line with the provisions of the directive, while maintaining the substantive regulation on the management of the commercial activity and making an express reference to the Unfair Competition Act for the treatment of its impact on the legitimate economic interests of consumers.

IV

From the point of view of the territorial distribution of powers, unfair competition is a matter reserved for State competition in accordance with the provisions of Article 149.1, rules 6. 8. and 13. Constitution, which attribute to the State exclusive competence in matters of commercial law, the basis of contractual obligations and the bases and coordination of the planning of the general economic activity.

The rest of the provisions of the law relating to the regulation of actions arising from unfair competition and the common regime in the field of consumer basic rights and infringements and penalties are given under cover. of the exclusive powers of the State in matters of procedural law, basic conditions that guarantee the equality of all Spaniards in the exercise of rights and in the fulfilment of constitutional duties, and the bases and coordination of the general planning of economic activity, in accordance with the provisions of the Article 149.1.1., 6. and 13. of the Constitution.

Article first. Amendment of Law 3/1991 of 10 January of Unfair Competition.

Articles 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 are amended and chapters III and IV are reworded, and Article 18 is also amended to Chapter II of Law 3/1991 of 10 January of Unfair Competition, to which it is added a new Chapter V. A single additional provision is also introduced.

One. Article 1 is amended as follows:

" This law aims to protect competition in the interests of all those involved in the market, and to this end it provides for the prohibition of acts of unfair competition, including illegal advertising in the terms of the General Advertising Law. "

Two. Article 2 is amended by adding a new paragraph 3 of the following wording:

" 3. The law shall apply to any acts of unfair competition, carried out before, during or after a commercial operation or contract, whether or not it comes to be held. "

Three. Article 3.1 is worded as follows:

" 1. The law shall apply to employers, professionals and any other natural or legal persons participating in the market. "

Four. Article 4, which is incorporated in Chapter II, shall be worded as follows:

" Article 4. General clause.

1. Disclaims any behaviour that is objectively contrary to the requirements of good faith.

In relations with consumers and users, the behaviour of an employer or professional who is contrary to professional diligence, understood as the level of competence and competence, is contrary to the requirements of good faith. special care to be expected from an employer in accordance with honest market practices, which distorts or may significantly distort the economic performance of the average consumer or the average member of the target group of the practice, if it is a commercial practice aimed at a particular group of consumers.

For the purposes of this law it is understood by consumer or user's economic behavior any decision by which the consumer chooses to act or to refrain from doing so in relation to:

a) The selection of an offer or offeror.

b) The hiring of a good or service, as well as, in its case, in what way and under what conditions to contract it.

c) Payment of the price, total or partial, or any other form of payment.

d) The preservation of the good or service.

e) The exercise of contractual rights in relation to goods and services.

Likewise, for the purposes of this law, it is understood to significantly distort the economic performance of the average consumer, to use a commercial practice to significantly undermine their ability to adopt a decision with full knowledge of cause, thus making a decision on their economic behavior that they otherwise would not have taken.

2. For the assessment of the conduct of which the addressees are consumers, the average consumer shall be taken into account.

3. Commercial practices which, addressed to consumers or users in general, are only likely to distort significantly, in a sense that the employer or professional can reasonably foresee, the economic performance of a clearly identifiable group of consumers or users who are particularly vulnerable to such practices or to the good or service to which they relate, because they have a disability, their ability to understand or their age or their age credulity, will be evaluated from the perspective of the middle member of that group. This shall be understood, without prejudice to the usual and legitimate advertising practice of making exaggerated claims or in respect of which a literal interpretation is not sought. '

Five. Article 5 is worded as follows:

" Article 5. Acts of deception.

1. Any conduct that contains false information or information which, even if true, by its content or presentation is misleading or liable to mislead the addressees, is considered to be disloyal by misleading or liable to alter its behaviour. economic, provided it has an impact on one of the following:

a) The existence or nature of the good or service.

(b) The principal characteristics of the good or service, such as its availability, its benefits, its risks, its execution, its composition, its accessories, the procedure and the date of its manufacture or supply, its delivery, their appropriate character, their use, their quantity, their specifications, their geographical or commercial origin or the results which may be expected from their use, or the essential results and characteristics of the tests or controls carried out for the good or service.

c) Post-sales assistance to the client and the handling of claims.

(d) The scope of the employer's or professional's commitments, the reasons for the commercial conduct and the nature of the commercial operation or the contract, as well as any statement or symbol indicating that the employer or professional or the good or service are the subject of a direct or indirect sponsorship or approval.

e) The price or its mode of fixation, or the existence of a specific advantage with respect to the price.

f) The need for a service or a part, replacement or repair, and modification of the initially reported price, unless there is a subsequent agreement between the parties accepting such modification.

g) The nature, characteristics and rights of the employer or his agent, such as his or her identity and solvency, qualifications, status, approval, affiliation or connections and rights of the employer industrial, commercial or intellectual property, or awards and distinctions it has received.

h) The legal or conventional rights of the consumer or the risks that the consumer may run.

2. Where the employer or professional indicates in a commercial practice that he is bound by a code of conduct, the non-compliance with the undertakings given in that code is considered unfair, provided that the undertaking is firm and can be verified, and, in its factual context, this conduct is likely to significantly distort the economic performance of its recipients. "

Six. Article 7 is amended as follows:

" Article 7. Misleading omissions.

1. The omission or concealment of the information necessary for the addressee to adopt or be able to take a decision on his or her economic behaviour with due knowledge is considered to be unfair. It is also unfair if the information offered is unclear, unintelligible, ambiguous, not offered at the right time, or the commercial purpose of that practice is not known, when it is not evident from the context.

2. For the purposes of determining the misleading nature of the acts referred to in the preceding paragraph, the factual context in which they are produced shall be taken into account, taking into account all their characteristics and circumstances and the limitations of the means of communication. used.

When the means of communication used imposes limitations of space or time, in order to assess the existence of an omission of information, these limitations and all the measures taken by the entrepreneur or professional to transmit the necessary information by other means. "

Seven. Article 8 is amended, which is worded as follows:

" Article 8. Aggressive practices.

1. It is considered to be unfair all behaviour which, taking into account its characteristics and circumstances, is likely to significantly undermine, through harassment, coercion, including the use of force, or undue influence, the freedom of the choice or conduct of the recipient in relation to the good or service and, therefore, affecting or likely to affect its economic performance.

For these purposes, the use of a position of power in relation to the recipient of the practice to exert pressure, even without using physical force or threatening to use it, is considered to be an undue influence.

2. To determine whether a conduct makes use of harassment, coercion or undue influence will be taken into account:

a) The time and place in which it occurs, its nature, or its persistence.

b) The use of a threatening or insulting language or behavior.

(c) the exploitation by the employer or professional of any specific misfortune or circumstance which is sufficiently serious to undermine the ability of the recipient to discern, knowledge, to influence your decision regarding the good or service.

(d) Any onerous or disproportionate non-contractual obstacles imposed by the employer or professional when the other party wishes to exercise legal or contractual rights, including any form of termination of the contract or change of good or service or supplier.

e) The communication that any action is to be performed that cannot be legally exercised. "

Eight. Article 10 is worded as follows:

" Article 10. Comparison acts.

Public comparison, including comparative advertising, by an explicit or implicit allusion to a competitor will be permitted if it meets the following requirements:

a) Compared goods or services shall have the same purpose or meet the same needs.

(b) The comparison shall be made in an objective manner between one or more essential, relevant, verifiable and representative characteristics of the goods or services, including the price.

(c) In the case of products covered by a designation of origin or geographical indication, specific name or traditional speciality guaranteed, the comparison may be made only with other products of the same name.

(d) Goods or services such as imitations or replicas of others to which a protected trademark or trade name is applied may not be presented.

e) The comparison may not contravene the provisions of Articles 5, 7, 9, 12 and 20 concerning acts of deception, denigration and exploitation of the reputation of others. "

Nine. Article 11 is amended to read as follows:

" Article 11. Acts of imitation.

1. The imitation of benefits and other business or professional initiatives is free, except that they are covered by an exclusive right recognized by law.

2. However, the imitation of the benefits of a third party shall be regarded as unfair where it is suitable for the purpose of generating the association on the part of the consumer in respect of the benefit or the misuse of the reputation or the effort foreign.

The inevitability of the indicated risks of association or of taking advantage of the reputation of others excludes the disloyalty of the practice.

3. Similarly, the systematic imitation of a competitor's business or professional services and initiatives shall be regarded as unfair where such a strategy is directly aimed at preventing or hindering its assertion in the market and exceed what, depending on the circumstances, a natural response from the market can be repudiated. "

Ten. Article 18 is worded as follows:

" Article 18. Illicit advertising.

Advertising deemed illegal by the General Law of Advertising will be disloyal. "

Once. Chapters III and IV are amended as follows:

" CHAPTER III

Business practices with consumers or users

Article 19. Unfair commercial practices with consumers.

1. Without prejudice to Articles 19 and 20 of the recast text of the General Law for the Defence of Consumers and Users and other complementary laws, they shall only be considered to be unfair to commercial practices. consumers and users, those provided for in this chapter and in Articles 4, 5, 7 and 8 of this Act.

2. Commercial practices governed by Articles 21 to 31, both inclusive, are in any case and in any event unfair commercial practices with consumers.

Article 20. Misleading practices for confusion for consumers.

In relations with consumers and users, commercial practices, including comparative advertising, are disloyal, which, in their factual context and taking into account all their characteristics and circumstances, create confusion, including the risk of association, with any goods or services, trademarks, trade names or other distinguishing marks of a competitor, provided that they are liable to affect the economic performance of the consumers and users.

Article 21. Misleading practices on codes of conduct or other quality flags.

1. They are disloyal by misleading, commercial practices that affirm without being true:

a) That the employer or professional is adhering to a code of conduct.

b) That a code of conduct has received the endorsement of a public body or any other type of accreditation.

(c) An employer or professional, its business practices, or a good or service has been approved, accepted or authorised by a public or private body, or make such a claim without fulfilling the conditions of approval, acceptance or authorization.

2. The display of a seal of confidence or of quality or of an equivalent mark, without having obtained the necessary authorization, is equally, in any case, an unfair commercial practice for misleading purposes.

Article 22. Decoy practices and deceptive promotional practices.

It is considered unfair by deceitful:

1. Make a commercial offer of goods or services at a given price without revealing the existence of reasonable grounds for thinking to the employer or professional that such goods or services or other equivalents will not be available at the price offered for a sufficient period and in reasonable quantities, taking into account the type of good or service, the extent of the advertising given to it and the price in question.

2. Make a commercial offer of goods or services at a certain price, with the intention of promoting a different good or service, refusing to show the good or service offered, not accepting orders or requests for supply, refusing to provide it within a reasonable period of time, teach a defective sample of the promoted good or service or disrepute it.

3. Commercial practices relating to sales in liquidation where it is uncertain whether the employer or professional is in any of the cases provided for in Article 30.1 of Law 7/1996 of 15 January 1996 on the Management of Trade Retailer or, in any other case, claim that the employer or professional is about to cease in his or her activities or to move without going to do so.

4. Commercial practices that offer an award, automatically, or in a contest or draw, without awarding the prizes described or others of quality and equivalent value.

5. Describe a good or service as "free", "gift", "no expense" or any equivalent formula, if the consumer or user has to pay money for any concept other than the inevitable cost of the response to the commercial practice and the collection of the product or payment for delivery of the product.

6. Creating false impression, even through the use of aggressive practices, that the consumer or user has already won, will win or win a prize or any other equivalent advantage if he performs a given act, when in fact:

a) There is no such award or equivalent advantage.

b) Or the performance of the act related to obtaining the prize or equivalent advantage is subject to the obligation, on the part of the consumer or user, to make a payment or to incur an expense.

Article 23. Misleading practices about the nature and properties of goods or services, their availability and after-sales services.

Repudiate disloyal, by deceitful:

1. To assert or otherwise create the impression that a good or service can be lawfully marketed not being true.

2. Claim that goods or services can facilitate the obtaining of prizes in games of chance.

3. Falsely proclaim that a good or service can cure diseases, dysfunctions, or malformations.

4. To state, not being true, that the good or service will only be available for a very limited period of time or that it will only be available under certain conditions for a very limited period of time to induce the consumer or user to make an immediate decision, thus depriving him of the opportunity or sufficient time to make his choice with due knowledge of cause.

5. Commit to providing after-sales service to consumers or users without warning them clearly before contracting that the language in which this service will be available is not the language used in the business operation.

6. Create the false impression that the after-sales service of the promoted good or service is available in a Member State other than that in which its supply has been contracted.

Article 24. Pyramid selling practices.

It is considered unfair by misleading, in any circumstance, to create, direct or promote a pyramid selling plan in which the consumer or user makes a consideration in exchange for the opportunity to receive a compensation derived primarily from the entry of other consumers or users into the plan, and not from the sale or supply of goods or services.

Article 25. Misleading practices by confusion.

It is disingenuous to promote a good or service similar to that marketed by a certain employer or professional to deliberately induce the consumer or user to believe that the good or service comes from this employer or professional, not being true.

Article 26. Covert business practices.

It is considered unfair by misleading to include as information in the media, communications to promote a good or service, paying the employer or professional for such promotion, without clearly remaining specified in the content or by clearly identifiable images and sounds for the consumer or user that is an advertising content.

Article 27. Other deceptive practices.

Similarly, practices that are misleading are considered unfair:

1. They present the rights that the legislation grants to consumers or users as if they were a distinctive feature of the employer's or professional's offer.

2. Make inaccurate or false statements regarding the nature and extent of the danger that would be to the personal safety of the consumer and user or his family, the fact that the consumer or user does not hire the good or service.

3. Transmit inaccurate or false information about market conditions or the possibility of finding the good or service, with the intention of inducing the consumer or user to hire him under conditions less favourable than the conditions normal market.

4. Include in the marketing documentation an invoice or a similar payment document that gives the consumer or user the impression that he has already contracted the goods or service marketed, without having requested it.

5. They falsely claim or create the false impression that an employer or professional does not act within the framework of their business or professional activity, or appear fraudulently as a consumer or user.

Article 28. Aggressive practices by coercion.

They are disloyal by aggressive commercial practices that make the consumer or user believe that he cannot abandon the establishment of the businessman or professional or the local in which the commercial practice takes place, until have contracted, unless such conduct is a criminal offence.

Article 29. Aggressive harassment practices.

1. It is considered unfair by aggressive to make in-person visits to the consumer or user's home, ignoring their requests for the employer or professional to leave their home or not to return to it.

2. Similarly, it is disloyal to make unwanted and repeated proposals by telephone, fax, e-mail or other means of distance communication, except in the circumstances and to the extent that it is legally justified to enforce a contractual obligation.

The employer or professional must use in these communications systems that enable the consumer to record his opposition to continuing to receive commercial proposals from that employer or professional.

In order for the consumer or user to exercise their right to express their opposition to receiving unwanted commercial proposals, when they are made by telephone, the calls must be made from a telephone number identifiable.

This assumption will be without prejudice to the provisions of the existing rules on the protection of personal data, information society services, telecommunications and distance contracting with consumers or users, including the distance hiring of financial services.

Article 30. Aggressive practices in relation to minors.

Be disloyal by aggressive, include in advertising a direct exhortation to children to acquire goods or use services or convince their parents or other adults to hire the advertised goods or services.

Article 31. Other aggressive practices.

Is considered unfair by aggressive:

1. To require the consumer or user, whether to be a taker, a beneficiary or a third party, who wishes to claim compensation under an insurance contract, the filing of documents which are not reasonably necessary to determine the existence of the of the claim and, where appropriate, the amount of damage resulting from it or to systematically leave the correspondence in question without responding, in order to deter him from exercising his rights.

2. Require immediate or deferred payment, return or custody of goods or services supplied by the trader, which have not been requested by the consumer or user, except where the goods or services in question are a good or service of replacement provided in accordance with the provisions of the existing legislation on distance hiring with consumers and users.

3. Expressly inform the consumer or user that the work or livelihood of the employer or professional is in danger if the consumer or user does not contract the goods or services.

CHAPTER IV

Actions arising from unfair competition

Article 32. Actions.

1. Against acts of unfair competition, including illegal advertising, the following actions may be exercised:

1. St Declarative Action of Disloyalty.

2. Action of cessation of unfair conduct or prohibition of its future reiteration. The prohibition action may also be exercised if the conduct has not yet been implemented.

3. Action to remove effects produced by unfair behavior.

4. Action to rectify misleading, incorrect or false information.

5. Action to compensate for damages caused by the unfair conduct, if the agent has intervened or blames the agent.

6. Unjust Enrichment Action, which shall only proceed when the unfair conduct damages a legal position covered by an exclusive right or other of an analogous economic content.

2. In the case-law of the proceedings provided for in the preceding paragraph, numbers 1. to 4. the court, if it considers it to be appropriate, and from the defendant, may agree to the full or partial publication of the judgment or, where the effects of the The infringement can be maintained over time, a rectifying statement.

Article 33. Active legitimation.

1. Any natural or legal person involved in the market, whose economic interests are directly harmed or threatened by unfair conduct, is entitled to the exercise of the actions provided for in Article 32.1, 1. 5. ª

In the face of unlawful advertising, it is legitimate for the exercise of the actions provided for in Article 32.1, 1. to 5. ª, any natural or legal person who is affected and, in general, those who have a subjective right or a legitimate interest.

The action to compensate for the damages caused by the unfair conduct may also be exercised, equally, by the legitimate persons in accordance with the provisions of Article 11.2 of Law 1/2000 of 7 January of Procedure Civil.

The unjust enrichment action may only be exercised by the owner of the legal position violated.

2. The actions referred to in Article 32.1, 1. to 4. may also be exercised by associations, professional corporations or representative of economic interests, where the interests of their members are affected.

3. They have active legitimacy for the exercise of the actions referred to in Article 32.1, 1. to 4. in defence of the general, collective or diffuse interests of consumers and users:

(a) The National Institute of Consumption and the corresponding bodies or entities of the Autonomous Communities and of the relevant local consumer and user defence corporations.

b) Consumer and user associations meeting the requirements set out in the recast text of the General Law for the Defence of Consumers and Users or, where appropriate, in the autonomous legislation on consumer protection. consumer and user advocacy.

(c) entities in other Member States of the European Community constituted for the protection of collective interests and the diffuse interests of consumers and users who are entitled by their inclusion in the a list published for that purpose in the Official Journal of the European Communities.

4. The Prosecutor's Office may exercise the cessation of action in defence of the general, collective or diffuse interests of consumers and users.

Article 34. Passive legitimization.

1. The actions provided for in Article 32 may be exercised against any person who has carried out or ordered the conduct of an unfair conduct or has cooperated in its conduct. However, the unjust enrichment action may only be directed against the enrichment beneficiary.

2. If the unfair conduct has been carried out by workers or other collaborators in the performance of their contractual duties and duties, the actions referred to in Article 32.1, 1. to 4. shall be directed against the principal. With regard to actions for damages and unjust enrichment, the provisions of civil law will be in place.

Article 35. Prescription.

The unfair competition actions provided for in Article 32 are prescribed for the course of a year from the moment they were able to be exercised and the legitimate person was aware of the person who carried out the act of competition. disloyal; and, in any case, for the course of three years from the time of the completion of the conduct.

The prescription of actions in defense of the general, collective or diffuse interests of consumers and users is governed by the provisions of Article 56 of the recast text of the General Law for the Defense of Consumers and Users and other complementary laws.

Article 36. Preliminary proceedings.

1. The person seeking to bring an action of unfair competition may ask the judge for the practice of proceedings for the verification of those facts whose knowledge is objectively indispensable for the preparation of the judgment.

2. Such proceedings shall be conducted in accordance with the provisions of Articles 129 to 132 of Law 11/1986 of 20 March of Patents and may extend to the entire internal field of the undertaking. "

Twelve. A new chapter, the V, is added to the Unfair Competition Act, as follows:

" CHAPTER V

Codes of Conduct

Article 37. Promotion of codes of conduct.

1. Corporate, professional and consumer organisations, associations or organisations may draw up codes of conduct relating to commercial practices with a view to the voluntary service of employers or employees. consumers, in order to raise the level of consumer protection and to ensure the involvement of consumer organisations in their preparation.

2. The codes of conduct shall respect the rules of defence of competition and shall be given sufficient publicity for their due knowledge by the addressees.

3. Public administrations shall promote the participation of business and professional organisations in the development of codes of conduct at Community level for the same purpose.

4. Self-regulation systems will be equipped with independent control bodies to ensure the effective implementation of the commitments made by the companies involved. Their codes of conduct may include, inter alia, individual or collective measures for the prior self-control of advertising content, and shall establish effective systems for the out-of-court settlement of claims that comply with the requirements established in Community legislation and, as such, notified to the European Commission, in accordance with the provisions of the Council Resolution of 25 May 2000 on the Community network of national out-of-court settlement bodies for consumer disputes or any equivalent provision.

5. Recourse to the control bodies of the codes of conduct shall in no case entail the waiver of the judicial proceedings provided for in Article 32.

Article 38. Actions against codes of conduct.

1. In the face of codes of conduct which recommend, encourage or encourage unfair or unlawful conduct, the actions for cessation and rectification provided for in Article 32.1, 2. and

.

2. Prior to the exercise of the actions provided for in the preceding paragraph, addressed to those responsible for codes of conduct meeting the requirements laid down in Article 37.4, the person responsible for the code of conduct shall be required to the cessation or rectification of the disloyal recommendation, as well as the commitment to refrain from doing so when they have not yet been produced.

The application must be made by any means that permit to be aware of its contents and the date of its receipt.

The person responsible for the code of conduct shall be obliged to issue the statement to the effect within 15 days of the filing of the application, during which time the person who initiated this procedure may not exercise the appropriate legal action.

After the period provided for in the preceding paragraph, without the claimant being notified of the decision or where the decision is unsatisfactory or unfulfilled, the court shall issue the legal route.

Article 39. Previous actions against employers and professionals attached to codes of conduct.

1. Where the action is based on the causes referred to in Article 5.2, it shall be required, prior to the exercise of the actions referred to in Article 32.1, 2. and 4., before the control body of the code of conduct, the cessation or rectification of the act or commercial practice of those in public form who are attached to it, as well as the commitment to refrain from carrying out the act or the unfair practice where they have not yet been produced.

The control body shall be obliged to issue the statement of delivery within 15 days of the submission of the application, during which time, who initiated this procedure, may not exercise the corresponding court action.

After the period provided for in the preceding paragraph, without the claimant being notified of the decision or where the decision is unsatisfactory or unfulfilled, the court shall issue the legal route.

2. In the rest of the cases of actions aimed at obtaining the cessation or rectification of an unfair conduct of those who are publicly attached to codes of conduct meeting the requirements of Article 37.4, the prior action before the body The control referred to in the previous paragraph shall be potestative. "

Thirteen. An additional provision is added, with the following wording:

" Single additional disposition. Definition of advertising.

For the purposes of this law the activity thus defined in Article 2 of Law 34/1988, of 11 November, General of Advertising is understood to be advertising. "

Article 2. Amendment of Law 34/1988 of 11 November, General Advertising.

One. Article 1 and Title II of Law 34/1988 of 11 November, General Advertising, are amended as follows:

" Article 1. Object.

Advertising shall be governed by this Law, by the Law on Unfair Competition and by the special rules governing certain advertising activities. "

" TITLE II

From illicit advertising and actions to make it cease

Article 3. Illicit advertising.

It is illegal:

(a) Publicity that atents to the dignity of the person or violates the values and rights recognized in the Constitution, especially those referred to in Articles 14, 18 and 20, paragraph 4.

Any advertisements which present women in a vexatious or discriminatory manner shall be understood to be included in the previous forecast, either by using their body or parts thereof as a mere disengaged object of the the product that is intended to be promoted, or its image associated with stereotypical behaviors that violate the foundations of our law, contributing to the creation of the violence referred to in the Organic Law 1/2004, of December 28, of Measures Comprehensive Protection against Gender Violence.

b) Advertising directed to minors that encourages them to buy a good or a service, exploiting their inexperience or credulity, or in which they appear to persuade parents or guardians of the purchase. It will not be possible, without a justified reason, to present children in dangerous situations. It shall not be misleading as to the characteristics of the products, their safety, nor the ability and aptitudes required in the child to use them without causing damage to themselves or to third parties.

c) Subliminal advertising.

d) The one that infringes the provisions of the regulations that regulate the advertising of certain products, goods, activities or services.

e) misleading advertising, unfair advertising and aggressive advertising, which will have the character of acts of unfair competition in terms of the Law on Unfair Competition.

Article 4. Subliminal advertising.

For the purposes of this law, it will be subliminal advertising which, by means of techniques of production of stimuli of intensities bordering on the thresholds of the senses or analogous, can act on the target audience without being consciously perceived.

Article 5. Advertising on certain goods or services.

1. The advertising of materials or medical devices and of those other subject to technical and health regulations, as well as the products, goods, activities and services that are liable to generate risks for the health or safety of the persons or their assets, or advertising on games of luck, send or chance, may be regulated by their special rules or subject to the regime of prior administrative authorization. Such a scheme may also be established where the protection of constitutionally recognised values and rights so requires.

2. Regulations developing the provisions of the preceding number and those which, when regulating a product or service, contain rules on their advertising shall specify:

(a) The nature and characteristics of the products, goods, activities and services the advertising of which is subject to regulation. These Regulations shall lay down the requirement that the risks arising from the normal use of such products shall be collected in the advertising of such products.

b) The way and conditions for advertising messages to be broadcast.

(c) The requirements for authorisation and, where applicable, the registration of the advertising, where it has been subject to the system of prior administrative authorisation.

In the procedure of elaboration of these regulations will be mandatory the hearing of the representative business organizations of the field, the associations of agencies and the advertisers and the associations of consumers and users, if any, through their institutional representation bodies.

3. The granting of authorisations must comply with the principles of free competition, so that other competitors cannot be affected.

Denial of authorization requests should be motivated.

Once the time of the response has expired, the special rules for the authorization files shall be deemed to be the same for positive administrative silence.

4. Narcotic drugs, psychotropic substances and medicinal products intended for the consumption of persons and animals may only be subject to advertising in the cases, forms and conditions laid down in the special rules governing them.

5. Advertising for beverages with an alcoholic strength of more than 20 degrees centigrade is prohibited by means of television.

Advertising of alcoholic beverages in those places where their sale or consumption is prohibited is prohibited.

The form, content and conditions of the advertising of alcoholic beverages will be strictly regulated in order to protect the health and safety of persons, taking into account the target subjects, the direct or indirect induction into their indiscriminate consumption and attention to educational, health and sports areas.

For the same purposes as the previous paragraph, the Government may, in regulation, extend the prohibition provided for in this paragraph to beverages with an alcoholic strength of less than 20 degrees.

6. Failure to comply with the special rules governing the advertising of the goods, goods, activities and services referred to in the preceding paragraphs shall be considered to be in breach of the effects provided for in the General Law for the Defense of Consumers and Users and the General Health Law.

Article 6. Actions in the face of illicit advertising.

1. The actions against unlawful advertising shall be those established in general for the actions arising from unfair competition under Chapter IV of Law 3/1991 of 10 January of Unfair Competition.

2. In addition, in the face of illegal advertising for the discriminatory or vexatious use of the image of women, they are legitimized for the exercise of the actions provided for in article 32.1, 1. to 4. of the Law of Unfair Competition:

a) The Government Delegation for Gender Violence.

b) The Women's Institute or its equivalent in the autonomous field.

(c) legally constituted associations that have as their sole objective the defense of the interests of women and do not include as associates of legal persons with a profit motive.

d) The Fiscal Ministry. "

Two. Articles 9 to 24 of Title III are renumbered as Articles 7 to 22.

Article 3. Amendment of the recast text of the General Law for the Defense of Consumers and Users and other complementary laws, approved by the Royal Legislative Decree 1/2007 of 16 November.

Articles 8, 18, 19, 20, 47.3, 49.1, 60, 63 and 123 of the recast text of the General Law for the Defense of Consumers and Users and other complementary laws, approved by the Royal Legislative Decree 1/2007, are amended. 16 November:

One. Article 8, paragraph (b), is amended as follows:

"(b) The protection of their legitimate economic and social interests, in particular against unfair commercial practices and the inclusion of unfair terms in contracts."

Two. Article 18 (4) is deleted.

Three. Article 19 is amended to be amended as follows:

" Article 19. General principle and business practices.

1. The legitimate economic and social interests of consumers and users must be respected in accordance with the terms laid down in this rule, in addition to the provisions laid down in civil, commercial and other Community rules. and autonomics resulting from application.

2. Without prejudice to the provisions of the following paragraphs, for the protection of the legitimate economic and social interests of consumers and users, the business practices of the entrepreneurs addressed to them are subject to the provisions of the this law, in the Law on Unfair Competition and the Law on the Management of Retail Trade.

For these purposes, commercial practices of entrepreneurs with consumers and users are considered all acts, omissions, conduct, manifestation or commercial communication, including advertising and marketing, directly related to the promotion, sale or supply of a good or service to consumers and users, irrespective of whether it is carried out before, during or after a commercial operation.

Non-consideration of commercial practices shall not be considered as contractual relations, which shall be governed in accordance with the provisions of Article 59.

3. The above paragraph does not prevent the application of:

(a) The rules governing commercial practices that may affect the health and safety of consumers and users, including those relating to the security of goods and services.

(b) The standards on certification and the degree of purity of objects made from precious metals.

4. The rules laid down in this law in the field of commercial practices and those governing commercial practices in the field of medicinal products, labelling, presentation and advertising of products, indication of prices, use per shift property, consumer credit, distance marketing of financial services intended for consumers and users, electronic commerce, collective investment in transferable securities, rules of conduct in the field of services investment, public offering or admission of securities and insurance contributions, including mediation and Any other rules governing specific aspects of unfair commercial practices provided for in Community rules shall prevail in the event of a conflict on the general law applicable to commercial practices. disloyal.

5. In relation to business practices relating to financial services and immovable property, statutory or regulatory rules may be laid down which offer greater protection to the consumer or user. "

Four. Article 20 is amended to read as follows:

" Article 20. Information required in the commercial offering of goods and services.

1. Commercial practices which, in a manner appropriate to the means of communication used, include information on the characteristics of the good or service and its price, enabling the consumer or user to make a decision on the procurement, they shall contain, if not already clear from the context, at least the following information:

(a) Name, business name and full address of the employer responsible for the commercial offer and, where applicable, name, social reason and full address of the employer on whose behalf he/she acts.

(b) The essential characteristics of the good or service in a manner appropriate to its nature and to the means of communication used.

(c) The full final price, including taxes, by breaking down, where applicable, the amount of increases or discounts that are applicable to the offer and the additional costs that are passed on to the consumer or user.

In the rest of the cases where, due to the nature of the good or service, the price in the commercial offer cannot be determined accurately, the calculation basis should be reported to allow the consumer or user to check the price. Similarly, where the additional costs passed on to the consumer or user cannot be calculated in advance for objective reasons, it should be reported that there are such additional costs and, if known, their estimated amount.

(d) the payment procedures, delivery times and performance of the contract and the system for the treatment of complaints, when they depart from the requirements of professional diligence, as defined in the Article 4.1 of the Law on Unfair Competition.

e) If any, the right of withdrawal exists.

2. Failure to comply with the provisions of the preceding paragraph or the provisions referred to in Article 19.4 shall in any event be regarded as unfair on the grounds of misleading, in equal terms with the provisions of Article 21.2 of the Law of Unfair Competition. "

Five. Article 47.3 is amended to the following wording:

" 3. The competent authorities in the field of consumption shall also sanction the conduct of a type of conduct as a matter of defence of consumers and users of the business owners of the sectors with specific regulation and unfair commercial practices with consumers or users. "

Six. Article 49.1 is amended, with a new wording in point (l) and two paragraphs, m) and n), and is worded as follows:

" l) The use of unfair business practices with consumers or users.

m) discriminatory conduct in access to goods and the provision of services, and in particular those provided for in the Organic Law 3/2007 of 22 March for the effective equality of women and men.

n) Failure to comply with the requirements, obligations or prohibitions set out in this standard or provisions that develop it, in the terms provided for in the autonomic legislation that is applicable. "

Seven. Article 123 is amended, by adding a new paragraph, number 3, to paragraphs 3 and 4 to be numbered 4 and 5, as follows:

" 3. The seller is obliged to deliver to the consumer or user exercising his right to the repair or replacement, documentary justification of the delivery of the product, in which the date of delivery is recorded and the lack of conformity originating the exercise of the right.

Similarly, together with the repaired or replaced product, the seller will deliver to the consumer or user documentary justification of the delivery on which the date of the delivery is recorded and, if applicable, the repair made. "

Article 4. Amendment of Law 7/1996, of 15 January, on the Management of Retail Trade.

Articles 18, 22, 23 and 32 of Law 7/1996, of 15 January, on the Management of Retail Trade are amended, in the following sense:

One. Article 18 is amended by adding a new paragraph 3 of the following wording:

" 3. The use of the names mentioned above that do not conform to the regulation respectively established for each of the sales promotion activities in this Law, will be disloyal when the circumstances foreseen in the Article 5 of the Law on Unfair Competition. "

Two. Article 22 is amended as follows:

" Article 22. Multilevel selling.

1. Multilevel selling is a special form of trade in which a manufacturer or a wholesale trader sells his goods or services through a network of traders and/or independent distributors, but coordinated within a the same commercial network and whose economic benefits are obtained by a single margin on the sale price to the public, which is distributed by the perception of variable percentages on the total turnover generated by the set of vendors integrated into the commercial network, and proportionally to the volume of business that each component has been created. For the purposes of this Article, traders and independent distributors shall in any case be regarded as employers for the purposes laid down in the recast text of the General Law for the Defence of Consumers and Users and other complementary laws.

2. It is prohibited to organise the marketing of goods and services when:

(a) Constitute an unfair act with consumers as provided for in Article 26 of Law 3/1991 of 10 January of Unfair Competition.

(b) It is not appropriate to ensure that distributors have the appropriate employment contracts or meet the requirements that are legally required for the development of a commercial activity.

c) Exists the obligation to make a minimum purchase of the products distributed by the new sellers, without a repurchase agreement under the same conditions.

4. In no case shall the operator or wholesaler of the network be able to make access to it conditional upon the payment of an entry fee or fee which is not equivalent to the promotional, informative or educational products and materials delivered at a price similar to that of other existing counterparts on the market and which will not be able to exceed the amount to be regulated.

In cases where there is a repurchase agreement, the products will have to be admitted to the refund if their status does not clearly prevent their subsequent marketing. "

Three. Article 23 is amended as follows:

" Article 23. Ban on pyramid sales.

These are pyramid selling practices as provided for in Article 24 of Law 3/1991 of 10 January of Unfair Competition, with the contractual conditions contrary to the provisions laid down in that provision being null and void. "

Four. The title of Chapter VI of Title II, and Article 32, which are amended as follows:

" CHAPTER VI

Sales with gift or premium

Article 32. Concept.

1. They are sales with gifts that are intended to promote sales, either automatically or, through participation in a drawing or contest, a prize, whatever the nature of the prize.

These are premium sales that offer any incentive or advantage linked to the acquisition of a good or service.

2. Where the incentive consists of a drawing, the provisions of this law shall apply without prejudice to the provisions of the relevant sectoral legislation.

3. Sales with a gift or premium are disloyal in the assumptions provided for in the Unfair Competition Act. "

Single additional disposition.

For the purposes of this law, the rights of persons with disabilities shall be taken into account in accordance with the Convention on the Rights of Persons with Disabilities, made in New York on 13 December 2006.

Single transient disposition.

The employer or professional who makes commercial proposals by telephone, fax, e-mail or other means of distance communication, will have two months, from the entry into force of this Law, to have in operation of the appropriate systems to be used, in accordance with Article 29 (2), to enable the consumer to show his opposition to continuing to receive commercial proposals from that employer or professional.

Single repeal provision. Regulatory repeal.

1. The following provisions are repealed:

(a) Title IV and the additional provision of Law 34/1988, of 11 November, General of Advertising.

(b) Article 59.2 of the Regulation of the Law on Precious Metals, approved by Royal Decree 197/1988 of 22 February.

(c) Article 8.1 and 2 of Royal Decree 58/1988 of 29 January on the protection of consumer rights in the service of repair of household appliances.

(d) Article 12.1 of Royal Decree 1457/1986 of 10 January, regulating industrial activity and the provision of services in the repair shops of motor vehicles, their equipment and components.

e) Article 4 of Royal Decree 1453/1987 of 27 November, approving the regulation of the services of cleaning, preservation and dyeing of textile, leather, leather and synthetic products.

2. Similarly, any provisions of equal or lower rank shall be contrary to the provisions of this law.

Final disposition first. Amendment of Law 1/2000 of 7 January of Civil Procedure.

A new paragraph is inserted in Article 15 (1) with the following wording:

" The Fiscal Ministry will be part of these processes when the social interest justifies it. The court that knows of any of these processes will communicate its initiation to the Fiscal Ministry to assess the possibility of its personation. "

Final disposition second. Competence title.

1. The first, third, seventh and fourth articles constitute commercial law, procedural law and the basis of the contractual obligations dictated by the State pursuant to Article 149.1.6. and 8. of the Constitution.

2. The second article constitutes trade legislation dictated by the State under Article 149.1.6. of the Constitution.

3. The third paragraph of Article 3 (1), (a), (3) and (4) is of a basic nature and is dictated by the powers of the State on the basis and coordination of the general planning of the economic activity of Article 149.1.13. Constitution.

4. Article 3 (5) and (6) of the Treaty are issued in accordance with the powers of the State to regulate basic conditions which guarantee the equality of all Spaniards in the exercise of rights and in the performance of their rights. the constitutional duties of Article 149.1.1. of the Constitution and under the jurisdiction of the State on the basis and coordination of the general planning of economic activity of Article 149.1.13. of the Constitution.

Final disposition third. Incorporation of European Union law.

This law incorporates into national law Directive 2005 /29/EC of the European Parliament and of the Council of 11 May 2005 on the unfair commercial practices of undertakings in their relations with the consumers in the internal market, amending Council Directive 84 /450/EEC, Directives 97 /7/EC, 98 /27/EC and 2002 /65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council.

Directive 2006 /114/EC of the European Parliament and of the Council of 12 December 2006 on misleading and comparative advertising is also incorporated into this law.

Final disposition fourth. Compliance.

The competent public authorities which, in the exercise of their powers, have failed to comply with this law or in the Community law concerned, giving rise to the fact that the Kingdom of Spain is sanctioned by the institutions The European Commission shall, in the case of the European Parliament, take account of the responsibilities of the European Parliament. In the case of imputation of liability, the hearing of the administration concerned shall be guaranteed, in any event, and the amount determined by the financial transfers to which it is determined may be compensated. receive.

Final disposition fifth. Entry into force.

This law will enter into force on the day following its publication in the "Official State Gazette".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this law.

Madrid, 30 December 2009.

JOHN CARLOS R.

The President of the Government,

JOSE LUIS RODRIGUEZ ZAPATERO