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Amongst ordinary commercial activity, it is common to contract companies that manage debtors’ lists, often with the aim of dissuading clients from non-payment of invoices. However, in these cases it is always advisable to act with the utmost caution, because, if all legal requirements are not met, the company whose data has been registered in a debtors’ file may request the deletion of such data and the payment of losses and damages to both the registry management service and the company that contracted its services.

The Judgement of the Provincial Court of Barcelona, of the 18th of January 2024(ECLI:ES:APB:2024:561) examined a case in which, in first instance, a claim brought by a limited liability company against a bank was partially upheld, whereby the intrusion in the right to honour of the company was deemed unlawful, the entity was ordered to remove the company’s data in any debtors’ files, and in particular, from the Central Information and Risk Office of the Bank of Spain (“CIRBE”), and to compensate the plaintiff an amount of six thousand euros, plus the legal interest rate from the date on which the lawsuit was filed.

The Second Legal Ground of said judgement includes the jurisprudential doctrine established by the Supreme Court on the right to honour and equity solvency files, namely:

  1. The erroneous inclusion of a person (physical or legal) in the debt register or file, when it is not true, is an illegitimate interference with the right to honour, for it constitutes an accusation (that of default) that harms their dignity, undermines their reputation and threatens their self-respect.
  1. Article 2.2 of Organic Law 1/1982, on Civil Protection of the Right to Honour, Family Intimacy and Self-Image establishes that the existence of interference shall not be considered unlawful when expressly permitted by the Law.
  1. Article 38 of the Regulation for the development of Organic Law 15/1999, of 13th December, on the Protection of Personal Data (former regulation) established the following requirements:
    • The indisputable existence of an unpaid, matured and enforceable debt, and the absence of a judicial, arbitral or administrative claim;
    • Less than six years since the date of payment or the expiration of the obligation;
    • The previous requirement for payment;
    • Previous information indicating that, in the case of non-payment, the data relating to non-payment may be communicated to files relating to the compliance or non-compliance with monetary obligations.
  1. Article 20 of Organic Law 3/2018, of 5th December, on the Protection of Personal Data and the Guarantee of Digital Rights (new regulation) establishes that, except when there is evidence to the contrary, the processing of personal data relating to the default of monetary, financial or credit obligations will be considered lawful if the following circumstances are met:
    • That the data has been provided by the creditor or by whoever acts on their behalf or in their interest.
    • That the data refers to certain, matured and enforceable debts, the existence or amount of which has not been the subject of an administrative or judicial claim nor via an alternative dispute resolution procedure.
    • That the creditor has informed the affected party in the contract, or at the time of requesting payment, of the possibility of inclusion in these systems, indicating which ones they are.
    • That the entity that maintains the credit information system has notified the affected party of the inclusion of data and informed them of the possibility of exercising the rights set out in Article 15 of Regulation (EU) 2016/679.
    • That the data is only kept in the system for as long as the default persists, with a maximum limit of five years from the date of maturity of the obligation.
    • That the data can only be consulted when the person who consults the system maintains a contractual relationship with the affected party from which economic interests stem.
    • That, in the event that the a contract is not entered into as a result of the consultation carried out, the person who has consulted the system informs the affected party of the result of said consultation.
  1. The Supreme Court has emphasised the principle of data quality (accurate, adequate, relevant and proportionate to the purposes for which it was collected and processed) and the requirements for:
    • Certain, unpaid, matured and enforceable debt, emphasising that if the holder considers, in a reasonable and legitimate manner, that they owe no debt and communicates this to the creditor, non-payment is not indicative of the insolvency of the affected party and the processing of data is not relevant.
    • The prior requirement for payment, considering that it continues to be enforceable and the possibility of including the data in the file of debtors in the case of non-payment can appear in both the requirement and the contact. This is an act of receptive communication that requires reasonable proof of receipt, although it can be inferred through presumptions.
  1. In the new regulation there are three basic obligations:
    • The creditor must inform the affected part of the possibility of including their data in the systems, specifying this in the contract or the requirement.
    • The creditor must request payment from the debtor prior to the inclusion of his data in the file of defaulters and is obliged to keep at the disposal of the person responsible for the file and the Spanish Data Protection Agency sufficient documentation proving compliance with all legal requirements.
    • The entity that maintains the credit information system must notify the affected party of the inclusion of their data and inform them of the possibility of exercising the rights provided for in articles 15 to 22 of EU Regulation 2016/679.

In the Third Legal Ground the difference between the CIRBE file and the debtors’ register is explained. The former is a specific administrative file used to inform of the credit risks arising from financial activity contracts, which is compulsory for credit entities and controlled by the Bank of Spain, with limitations on the transfer of data to third parties. The latter are private, non-compulsory, entail an absolute right and have a different purpose (solvency). Appearing in a CIRBE file has fewer repercussions than in a debtors’ register and may also endanger the right to honour if it is undue because it does not comply with legal requirements.

In the Fourth Legal Ground, the Court revoked the appeal filed by the entity and upheld the judgement handed down in the lower court, acknowledging that the requirements of the existence of a certain, matured, unpaid and enforceable debt and the existence of a prior payment requirement were not met.

 

 

Vilá Abogados

Mireia Bosch

 

For more information, please contact:

va@vila.es

 

10th May 2024