The modification is inspired in the general principle of freedom of undertaking and its objective is to ease the free establishment of services in commercial distribution and its development in different commercial formats, particularly guarantying the competition amongst all the different parties.
The Act modifies the regulation of commercial establishments and the obtainment of licenses for the activity. Generally speaking, the Act establishes that the opening of commercial establishments will not be submitted to any special authorisation. Nevertheless, in some cases and according to the general interest principles, respecting in any case the EU legislation and following dully justified and proportional procedures, competent authorities could establish the requirement of a previous authorisation.
The criteria for these permits, particularly for establishments of more than 2,500 sq. m., must be objectively established and be related to the environmental and urban areas protection, territory organisation, heritage protection, and consumers’ protection.
Concerning the franchising activity, the Act simplifies the inscription at the Franchisors Registry at the Ministry for Industry, Tourism and Commerce. The compulsory previous registration has been replaced by a subsequent disclosure obligation of the activity. For this purpose, article 62.2 of the Retail Act has been modified: according to the new regulation, franchisors have to disclose the starting of their activities within three months to the Franchisors’ Registry. Franchise companies of third countries not being established in Spain but with the intention of developing such an activity in Spain are also obliged to disclose the information to the Registry within the same term. According to the new modification, the lack of disclosure to the Registry within the legal term or the lack of updating the necessary data will be considered as a ‘serious infringement’.
Infringements and sanctions have also been modified. They will still be classified as ‘minor infringement’, ‘serious infringement’ or ‘very serious infringement’. The fines, according to the modification of article 68 have been set: until 6,000 euro for a minor infringement; from 6,000 to 30,000 euro for a serious one and from 30,000 to 900,000 euro for a very serious one. The modification also includes the annually update of these amounts according to the General Index Price approved by the National Statistics Institute.
The criteria to graduate the fines have also been modified (article 69) and for these purposes some elements will be, particularly, considered: the turnover of the offender, the benefit obtained, the intentionality, the duration of the infringement, the recidivism and the economic capacity of the undertaking. On the other hand, limits included in article 69.2 of the Retail Act have been suppressed (those limits were: in case of a minor infringement the fine could not surpass 5% of the turnover, 50% of the turnover in case of serious infringements and the total turnover in case of very serious infringement).
Some other modifications affect the stock sale, distance selling, automatic sale and peddling.
Finally, the Act introduces an Additional Disposition (the 11th) to the Retail Act, with a specific mandate to the Government to regulate the legal regime for Commercial Distribution agreements in order to suppress the administrative barriers and to better apply the rules contained in the Directive 2006/123/CE.
The modifications entered into force in March, 3, 2010
Ignacio Alonso, agency & distribution Country Expert for Spain.
The text of the law, together with the relevant legislation on agency, distribution and franchising, can be found in the Legislation Section of the Website.