The General Directorate of Consumption highlights a recent ruling from the Supreme Court, of the Third Section of the Administrative Litigation Chamber, which backs the agreement adopted by the Council of Government -and the ruling of the High Court of Justice of Andalusia (TSJA)-, considering the telecommunications operator Telefónica España as responsible for an administrative offense for «imposing» electronic billing on customers.
This offense, decided by the Government Council on December 18, 2018, resulted in a fine of 765,000 euros for the company. Telefónica appealed the fine in administrative litigation before the TSJA, which dismissed the appeal. The operator appealed again through a cassation appeal to the Supreme Court, which also dismissed it.
The magistrates of the Third Section of the Administrative Litigation Chamber of the Supreme Court indicate that the TSJA ruling appealed in cassation is based on previous rulings in identical cases. Thus, based on Law 13/2003, of December 17, on the Defense and Protection of Consumers and Users of Andalusia, it considers the clause on electronic billing as «abusive» for «imposing this type of billing through a general clause in an adhesion contract, without the consumer having expressly and separately accepted it.
In this way, it is argued that the company «cannot exercise that right of the consumer 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 should be classified as abusive, as it is no longer proposed, but imposed electronic billing.» Therefore, the court details, «it is a fact that many consumers receive electronic billing 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 have the right to receive the invoice on paper. In this case, the issuance of the electronic invoice is subject to the entrepreneur having previously obtained the express consent of the consumer. The request for consent 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 the procedure for revocation. 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 explanation of the legal framework, reference is made to the Regulation governing billing obligations, which establishes, in Article 9, that «the issuance of the electronic invoice is subject to the recipient having given consent».
Therefore, taking into account the legal framework and jurisprudence, there are «two explicit requirements that have not been met»: on the one hand, that receipt of the invoice on paper is considered an unconditional right of the user, and, on the other hand, that renunciation of this right «must not only be express but must be manifested through a procedure directly provided for in the law».