Spain updates

Employment & Benefits

Contributed by CMS Albiñana & Suárez de Lezo
Moving towards equal pay for men and women at work
  • Spain
  • April 25 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
  • February 21 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
Commercial court upholds Nestlé's infringement action of its patents relating to Nescafé Dolce Gusto capsules
  • Spain
  • February 19 2018

In January 2016 Nestlé filed a patent infringement action with a preliminary injunction motion against Fast Eurocafé, which had imported, offered and sold capsules for a beverage compatible with Nestlé's well-known Nescafé Dolce Gusto system. Last month, Barcelona Commercial Court Number 5 upheld Nestlé's patent infringement action against Fast Eurocafé, declaring that claims must be interpreted according to their descriptions.

Courts adopt specific protocol for protecting IP rights during MWC 2018
  • Spain
  • February 12 2018

The next Mobile World Congress will be held in Barcelona from February 26 to March 1 2018. Foreseeing possible conflicts between the companies participating in the event, the Barcelona Commercial Courts have agreed to adopt a specific protocol which contains effective measures 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 event.

Storage costs generated by deposit of counterfeit goods
  • Spain
  • February 05 2018

A much debated issue among Spanish legal practitioners concerns which party should be held responsible for the costs associated with storing and destroying IP infringing goods which are the object of judicial proceedings. There have been contradictory judgments in criminal proceedings. Recently, some logistics companies have tried to apply this discussion to other jurisdictions.

Changes to Spanish EU trademark and Community design litigation
  • Spain
  • February 05 2018

In 2017 the EU Trademark Regulation and the Spanish Patents Act entered into force. Both pieces of legislation have affected EU trademark and Community design litigation in Spain, including by extending the deadline to respond to EU trademark and Community design claims and extending the exclusive competence of EU Trademark Courts 1 and 2 of Alicante, among other changes.

Preliminary injunctions revoked due to prima facie invalidity of Truvada SPC
  • Spain
  • January 08 2018

Barcelona Commercial Court Number 4 recently lifted the preliminary injunctions that it had previously granted ex parte at the request of Gilead against Mylan and Teva for the alleged imminent infringement of Gilead's supplementary protection certificate (SPC) for the combination of tenofovir disoproxil and emtricitabine. The defendants successfully opposed the preliminary injunctions, alleging the invalidity of the SPC and invoking the applicable European Court of Justice case law.


Contributed by Pérez-Llorca
Right of separation of minority shareholders and insolvency proceedings
  • Spain
  • April 24 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
  • March 06 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
  • June 27 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.

Protective letters finally receive legal recognition
  • Spain
  • May 16 2017

A protective letter is a form of anticipatory defence against ex parte interim measures. It aims to present the defendant's arguments to the court before an ex parte interim measure is adopted and, if possible, prompt the court to call for a hearing before adopting the interim measure. While Spanish law did not previously recognise protective letters, the recently enacted Patent Act recognises them in relation to IP matters.

Court issues milestone ruling for sharing economy and digital platforms
  • Spain
  • March 14 2017

In a pioneering ruling, Madrid Commercial Court 2 recently ruled in favour of a French company and its Spanish subsidiary with regard to an unfair competition claim. Notably, the judge ruled that the subsidiary's operation of a digital platform through which people arrange to share a road journey (and the associated costs) is legal and does not constitute a transport activity. The ruling is the first step towards establishing the long-awaited legal framework for this type of activity.

Shipping & Transport

Land or maritime transport? Court rules on transport of goods from ship to unloading area
  • Spain
  • March 08 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
  • February 22 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
  • January 11 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
  • December 07 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.

Dealing with goods abandoned at ports
  • Spain
  • July 06 2016

The Community Customs Code states that the 'abandonment' of goods must be carried out in accordance with national provisions and must not cause harm to public funds. The Navigation Act and the Police Regulations, Rules and Service Ports govern the treatment of goods abandoned in port service areas.