The Dirección General de Consumo highlights a recent Supreme Court ruling, from the Third Section of the Contentious-Administrative Chamber, which supports the agreement adopted by the Council of Government -and the ruling of the Superior Court of Justice of Andalusia (TSJA)-, which considers the telecommunications operator Telefónica España as the author of an administrative infringement for «imposing» electronic billing on customers.
This infringement, decided by the Council of Government on December 18, 2018, resulted in a fine of 765,000 euros for the entity. Telefónica appealed the fine in the contentious-administrative route before the TSJA, which dismissed the appeal. The operator appealed again through a cassation appeal to the Supreme Court, which also dismissed it.
The judges of the Third Section of the Contentious-Administrative Chamber of the Supreme Court indicate that the TSJA ruling appealed in cassation is based on previous rulings in identical cases. Thus, based on the Law 13/2003, of December 17, on the Defense and Protection of Consumers and Users of Andalusia, it considers «abusive» the clause on electronic billing for «imposing this type of billing through a general clause contained in an adhesion contract, without the consumer having expressly accepted it and separately.
In this way, it is argued that the company «cannot dispose of the consumer’s right to choose one option or another based on tacit consent, imposing electronic billing and thus limiting the basic rights of the consumer». In the same ruling, it is stated that «the clause in question must be classified as abusive, as the electronic invoice is not proposed, but imposed». Therefore, the court details, «it is a fact that many consumers receive the electronic invoice as predisposed in a general clause contained in an adhesion contract without having expressly accepted it».
The Supreme Court recalls that article 63 of the General Law for the Defense of Consumers and Users states that «in contracts with consumers and users, they shall have the right to receive the invoice on paper. In this case, the issuance of the electronic invoice shall be subject to the entrepreneur having previously obtained the express consent of the consumer. The consent request must specify how the electronic invoice will be received, as well as the possibility for the recipient who has given consent to revoke it and how such revocation can be made. The right of the consumer and user to receive the invoice on paper cannot be conditioned on the payment of any economic amount«.
Likewise, in the exposition of the legal framework, reference is made to the Regulation governing invoicing obligations, which establishes, in article 9, that «the issuance of the electronic invoice shall be subject to the recipient having given consent».
Therefore, considering the legal framework and jurisprudence, there are «two explicit requirements that have not been complied with»: on the one hand, that the receipt of the invoice on paper is considered an unconditional right of the user, and, on the other hand, that the waiver of this right «must not only be express, but must be manifested through a procedure directly contemplated in the law itself».
