Consumers and users benefit from a legal framework giving special protection aimed at compensating for their vulnerability in the legal system.
In accordance with the Consolidated Text of the General Law for the Protection of Consumers and Users (Texto Refundido de la Ley General de Defensa de los Consumidores y Usuarios – “TRLGDCU”), they warrant such consideration and therefore this collective is granted the relevant protection, “individuals who act with a purpose different to a commercial, business, trade or professional activity”, and likewise, “legal entities and entities without legal status acting without the intention of profit seeking within a scope not related to a commercial or business activity”.
Thus the following question arises from the aforementioned article: can an individual acting outside the scope of a business or professional activity, who acquires an asset with the intention of making a profit, be considered a consumer?
In a recent judgment dated 16th January 2017, the Supreme Court (Tribunal Supremo – “TS”) has made a declaration in this regard for the first time, and has responded affirmatively to this question.
Amongst others, the conclusion arrived at by the TS is based upon the following arguments:
- That community case law has considered that a profit seeking intention should not be a criterion for exclusion from the application of the notion of consumer (for example in judgment of the CJEC of 10th April 2008 (ECJ 2008, 78) (the Hamilton case).
- That the wording of article 3 of the TRLGDCU refers to action outside the scope of a business activity in which the operation may fall, and not to the specific business activity of the client or purchaser (an interpretation reinforced by ECJ ruling of 3rd September 2015 case C-110/14).
- That following the amendment to article 3 of the TRLGDCU by Act 3/2014, of 27th March, the distinction between an individual consumer and a legal entity consumer continues to be made, but it adds that profit seeking is a circumstance that excludes only in the second case.
Without prejudice to the above, the TS specifies that, “if the consumer is able to act in pursuit of enrichment, the limit shall only apply to cases whereby these activities are carried out regularly (buying in order to immediately resell successively, for example property, shares, etc.), since upon conducting various operations of this type assiduously within a short period of time, it may be deemed that, with said actions, a business or professional action is being carried out, given that regularity is one of the characteristics of the legal attributes of a business man, as established in article 1.1º of the Commercial Code (Civil Procedure Law 1885,21)”.
Ismael Marina Schneider
Vilá Abogados
For more information, please contact:
10th of February 2017
