Spain updates

Employment & Benefits

Contributed by CMS Albiñana & Suárez de Lezo
How to reduce absenteeism
  • Spain
  • 18 July 2018

Absenteeism costs Spanish companies approximately €77 billion a year and has become such a pressing issue that the Ministry of Finance has announced measures to combat it in the public sector. Companies must be proactive in implementing measures and controls to reduce absenteeism in order to raise employee awareness of such impact and enable them to avoid the implementation of coercive measures.

Moving towards equal pay for men and women at work
  • Spain
  • 25 April 2018

A recent judgment of the Andalusia High Court is the first decision in Spain to expressly declare that women and men are entitled to receive the same salary when performing similar functions and responsibilities, unless the company provides objective grounds, unrelated to gender, to justify the salary inequalities. It is advisable for companies to review their salary policies in order to identify employee remunerations that could be considered discriminatory.

Hidden cameras as evidence for dismissal?
  • Spain
  • 21 February 2018

The European Court of Human Rights recently ruled that the installation of hidden surveillance cameras by a Spanish company without informing its employees infringed Article 8 of the Convention of Human Rights and Fundamental Freedoms (employees' right to respect for privacy and human dignity). This ruling serves as a reminder that before installing hidden surveillance cameras, companies must analyse all of the applicable circumstances.

Intellectual Property

Contributed by Grau & Angulo
Criminal sentence for importers of counterfeit t-shirts
  • Spain
  • 30 July 2018

The Zaragoza Court of Appeal recently issued a ruling confirming a trial court judgment which had sentenced two defendants for importing several thousand counterfeit t-shirts from China. In their appeal against the trial court's condemnatory judgment, the defendants had argued that the trial court erred in assessing the evidence, that there had been a break in the custody chain of the seized goods, that one of the defendants had not participated in the importation and that there had been no consumer error.

Appeal court stresses importance of drawings for defining a patent's scope of protection
  • Spain
  • 23 July 2018

The Madrid Court of Appeal (Section 28) recently confirmed the dismissal of a patent infringement action filed by PERI GmbH against Spanish company Sistemas Técnicos de Encofrados (STEN). The court held that a patent's scope of protection is determined by its claims and that the patent description and drawings must be considered in an interpretation of the claims. In light of this, the court concluded that STEN's scaffolding did not infringe PERI's patent.

Barcelona patent court upholds valsartan-amlodipine patent invalidity
  • Spain
  • 18 June 2018

The Barcelona Commercial Court Number 4 recently dismissed a patent infringement action brought by Novartis against the first generics in Spain of its valsartan and amlodipine medicinal product for the treatment of hypertension. The court upheld the defendants' counterclaim for invalidity of the asserted patent. Novartis has appealed this decision before the Barcelona Court of Appeal.

Appeal court confirms revocation of ex parte preliminary injunctions against oxycodone/naloxone generics
  • Spain
  • 11 June 2018

The Barcelona Court of Appeal recently issued two decisions confirming the Barcelona Commercial Court Numbers 1 and 4 rulings revoking the preliminary injunctions that they had granted ex parte at Mundipharma's request against the first generics in Spain of its oxycodone/naloxone medicinal product for the treatment of pain. In its decisions, the Barcelona Court of Appeal concluded that Mundipharma's patent was prima facie invalid due to added subject matter, as argued by the defendants.

Criminal sentence handed down for sale of counterfeit shoes
  • Spain
  • 21 May 2018

The Barcelona Court of Appeal recently dismissed the writ of appeal filed by an online seller of counterfeit shoes against a trial court judgment, confirming the judgment in its entirety. Notably, the trial court had applied the damages criterion provided for in Article 43.2.b of the Trademark Act as opposed to that provided for in Article 43.2.a, which is more commonly applied in criminal cases and comprises the profits which a trademark owner would have made had a counterfeiting offence not occurred.


Contributed by Pérez-Llorca
Barcelona Court of Appeal confirms revocation of AFTERSUN mark
  • Spain
  • 07 August 2018

The Barcelona Court of Appeal recently confirmed the Barcelona Commercial Court 8 decision which upheld L'Oréal's revocation action against Laboratorios Genesse's AFTERSUN mark. L'Oréal had filed the revocation action against the mark due to its popularisation in the Spanish market. Laboratorios Genesse had filed a counterclaim alleging that L'Oréal's use of the expressions 'after sun' and 'after-sun' infringed its trademark rights.

Supreme Court rules on penalty clauses in lease agreements
  • Spain
  • 26 June 2018

The Supreme Court recently analysed the differences between compensatory and punitive penalty clauses in lease agreements and established the requirements for the latter to be valid. The court also ruled that a punitive penalty clause's amount cannot be reduced simply because the lessor enters into a new lease agreement immediately after recovering possession of the commercial premises.

Right of separation of minority shareholders and insolvency proceedings
  • Spain
  • 24 April 2018

Although Article 348bis was included in the Companies Act in 2011, its application was suspended until January 2017. Due to the constant delays in the provision's implementation, there is little case law on the matter and a lack of harmonised criteria for interpreting the provision and applying the right recognised therein. A recent A Coruna Court of Appeals decision on this matter is therefore significant, particularly because it analyses two questions which are likely to arise from the article's application.

Supreme Court reconsiders calculation of collective dismissal thresholds
  • Spain
  • 06 March 2018

A trade union recently sought to declare the existence of a de facto collective dismissal on the grounds that the company had exceeded the maximum number of individual objective dismissals (as well as other comparable terminations) in a 180-day period. However, the Supreme Court rejected the claim and ratified several points regarding collective challenges of terminations that, de facto, could exceed the thresholds.

Supreme Court rules on whether dissolved companies can be sued
  • Spain
  • 27 June 2017

The Supreme Court recently considered whether the cancellation of a company with the Companies Registry removes its legal capacity or only limits it for the purposes of covering the debts that appear after such cancellation, in which case the company could be sued. Another issue that this ruling clarifies is who should represent such a company in court.

Shipping & Transport

Land or maritime transport? Court rules on transport of goods from ship to unloading area
  • Spain
  • 08 March 2017

In a June 2016 decision the Supreme Court applied the previous International Merchant Shipping Act 1949 to establish which party was responsible for damages incurred during the unloading of goods. The case centred on whether the transport of goods from the ship to the unloading area constituted land or maritime transport, which in turn would determine whether the claim for damages was subject to an expiration or a prescription period.

Supreme Court interprets 'wilful misconduct' by carriers
  • Spain
  • 22 February 2017

Due to the differences between continental and common law, the Spanish courts have found it difficult to distinguish between the legal concepts of 'wilful misconduct' and 'gross negligence'. In recent years, the courts have issued rulings exploring these concepts in a number of cases involving the theft of goods during carriage. Specifically, two 2015 Supreme Court judgments have clarified and consolidated the concepts.

Maritime privileged credits under Insolvency Act
  • Spain
  • 11 January 2017

The Insolvency Act is based on the principle of universality with regard to assets and liabilities. However, certain credits – including maritime privileged credits – must be separated from a bankruptcy estate, resulting in a breach of this principle. Ultimately, if a maritime privileged credit is exercised against the ship of a party undergoing bankruptcy proceedings, the creditor or owner of the credit can separate the ship from the bankruptcy estate if the liquidation of assets phase has yet to commence.

Jurisdiction clauses in bills of lading
  • Spain
  • 07 December 2016

The Spanish courts have increasingly dismissed cargo claims brought by cargo owners or their subrogated underwriters, citing a lack of jurisdiction due to the inclusion of a jurisdiction clause in the bill of lading. However, in some cases, the courts have followed this trend without performing a strict analysis of the jurisdiction clause in question, thereby accepting clauses of questionable validity.