Spain updates

Aviation

Contributed by Augusta Abogados
Supreme Court orders Iberia to cease using abusive terms and conditions
  • Spain
  • 19 December 2018

The Supreme Court (Civil Chamber) recently issued its judgment following cassation proceedings against a 2015 Madrid Provincial Audience judgment. The proceedings stemmed from a 2011 collective action against Iberia, which the Spanish Consumers and Users Organisation had filed with the Madrid Commercial Court in order to obtain the annulment of several clauses of Iberia's standard terms and conditions.


Employment & Benefits

Contributed by CMS Albiñana & Suárez de Lezo
New digital rights: employees' right to privacy in use of video, audio and geolocation surveillance
  • Spain
  • 06 February 2019

The new Data Protection Act has introduced a number of so-called 'digital rights' for employees. Prior to the act's entry into force, the Supreme Court and the Constitutional Court had already issued regulations on how employers could monitor employees using video, audio or geolocation surveillance, which were in line with European Court of Human Rights rulings. Although the new act has made no special amendments to the courts' regulations, it has provided a concrete legal framework in this regard.

New digital rights: employees' right to disconnect
  • Spain
  • 30 January 2019

The new Data Protection Act introduced a number of so-called 'digital rights' for employees, including a right to disconnect from their work devices. This right aims to guarantee employees' rest, leave and holiday time, as well as their right to personal and family privacy. The provision concerning how this right should be exercised is general. As such, the legislature has left it up to employers to define each employee's right to disconnect in their collective bargaining or employment agreement.

New digital rights: employees' right to privacy in use of digital devices at work
  • Spain
  • 16 January 2019

The new Data Protection Act recently entered into force, introducing a number of so-called 'digital rights'. The Spanish legal system already provides a framework regarding the use of digital devices at work and how employers can exercise control over them in view of employees' right to privacy. Although the act has introduced no significant changes in this regard, employees' right to privacy regarding the use of digital devices at work has now been set out in law.

New Data Protection Act introduces digital rights for employees
  • Spain
  • 09 January 2019

The new Data Protection Act was recently published in the Official State Gazette, transposing the EU General Data Protection Regulation into Spanish law. In addition, the act has introduced a number of so-called 'digital rights' which directly concern employees, including the right to privacy in the use of technological devices at work and the right to disconnect from work.

Court rules that employee's disciplinary dismissal for taking paid annual leave justified
  • Spain
  • 21 November 2018

The Navarre High Court recently held that an employer had been justified in dismissing an employee for taking her paid annual leave on dates that were unauthorised by the employer. Following this judgment, employees who ignore their employer's instructions regarding the period during which paid annual leave can be taken run the significant risk of being dismissed on disciplinary grounds for disobeying their employer's orders and breaching their contractual good faith obligation.


Intellectual Property

Contributed by Grau & Angulo
Barcelona patent court finds oxycodone and naloxone patent invalid due to added matter
  • Spain
  • 11 February 2019

Barcelona Commercial Court Number 4 recently dismissed a patent infringement action brought by Mundipharma against two generics of its oxycodone and naloxone medicinal product for the treatment of pain (Targin) and upheld the defendants' counterclaim that the asserted patent was invalid. Among other things, the court held that the patent's claims amounted to an inadmissible generalisation because they omitted essential elements of the invention as disclosed in the application as filed.

Criminal sentence for possession of handbags which infringe Robin Ruth Group design
  • Spain
  • 04 February 2019

The Arenys de Mar Trial Court Number 1 recently convicted the defendant in a case involving handbags which infringed a Robin Ruth Group (RRG) design for a crime against intellectual property. Notably, in May 2013 the defendant had signed a settlement agreement with the RRG following the seizure of hundreds of products which infringed other RRG designs in which it had undertaken not to infringe in future either those designs or any other designs owned by the RRG.

Courts adopt specific protocol to protect IP rights during MWC 2019
  • Spain
  • 28 January 2019

The next Mobile World Congress (MWC) will be held in Barcelona in February 2019. Foreseeing potential conflicts between the participating companies, the panel of judges of the Barcelona commercial courts has agreed – for the fifth consecutive year – to adopt a specific protocol to protect technology patents, industrial designs, trademarks and copyright and defend against unfair competition and unlawful advertising acts in relation to products and materials which are displayed at the MWC.

Barcelona Court of Appeal confirms revocation of ex parte preliminary injunction in NuvaRing case
  • Spain
  • 14 January 2019

The Barcelona Court of Appeal recently confirmed the revocation of the preliminary injunction granted ex parte at the request of Merck Sharp & Dohme (MSD) for the alleged infringement of its NuvaRing patent. The court confirmed that an assessment of disputed facts in this context does not require certainty, but rather probability. Therefore, MSD's appeal was deemed to be groundless as it alleged an infringement of the rules of the burden of proof, which – in reality – did not apply.

Teleshopping ads found to infringe copyright
  • Spain
  • 26 November 2018

In a recent case, Barcelona Commercial Court Number 2 declared that teleshopping ads broadcast by the defendant had infringed the copyright in similar ads created by the plaintiffs. This was an unusual case, as the claim relied on proving the statutory required level of originality for a creation to be copyrightable and the plagiarism of the pre-existing works in a particularly active sector.


Litigation

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.