LegalNews

On 23 December 2022, the Startup Law came into force (although some tax measures came into force on 1 January 2023), but which are its main new aspects and what can I do to declare my company as a Startup?

Emerging company or Startup status.

In order to benefit from the rules contained in this new law, the Startup will need to obtain the status of an emerging company, and, to this end, entrepreneurs must apply to ENISA for certification of the innovative venture.

For the purposes of granting this certification, ENISA will assess, among other aspects, the degree of innovation, the company’s stage of life, the market attractiveness, its business model, its team or competition in the industry. The following requirements are foreseen for Startups, for example: it must be newly created (maximum 5 years since its incorporation), and it must develop an innovative entrepreneurial project with a scalable business model.

Once declared as a Startup and registered in the Commercial Register, entrepreneurs will be able to benefit from the advantages of the new law.

But what are these advantages?

Among the benefits included in the new law, we could highlight the following:

1. Tax advantages such as, for example, the 15% rate of Corporate Tax (provided the taxable base is positive) for up to 4 years, deferrals or tax debts, and incentives in Personal Income Tax for the creation of companies.
2. 100% reduction of the Special Regime for Self-Employed Workers’ contributions for self-employed companies that remain employees.
3. Simplification of formalities required for foreign investors in order to obtain their identification documents and special tax regime for impatriates with the aim of attracting foreign investment and retaining talent.
4. New option on treasury stock to reward the Startup team or its collaborators, being able to incentivise them, therefore, not only with money but also with a percentage of participation in the company, keeping them motivated and linked to its growth.
5. implification of deadlines for the registration of acts and agreements in the Commercial Register, for example with regard to incorporation and capital increases, and reduction of notary and registry fees.
6. Procedures to encourage innovative public procurement and collaboration between Startups and universities.

These are just some of the advantages contained in Law 28/2022, on the promotion of the startup ecosystem, known as the Startups Law, but if you are an entrepreneur or investor and would like to know all the detailed aspects, as well as how to implement the advantages provided, please contact us and we will be happy to help you.

Who would have thought that we would be frequently negotiating the wording of the force majeure clause. In times of Covid-19, this has been a reality.

As the Spanish civil code provides, «no one shall be liable for events which could not have been foreseen, or which, having been foreseen, were unavoidable».

In the force majeure clause, we have been negotiating the inclusion or deletion of strikes, labour disputes, labour shortages, inability to obtain raw materials, transport problems. There have even been attempts to mix this question with the price increase of raw materials or transport. We should clarify that, while the above examples may be negotiated as force majeure, price increases are another issue that we will discuss later.

We are also still negotiating the inclusion of a paragraph in the force majeure clause concerning Covid-19 (and now also concerning the war in Ukraine). Basically, this paragraph means that the parties are aware of the current situation and it does not prevent the development and execution of the contract. It may also include that, if new circumstances arise regarding Covid-19, the parties will negotiate in good faith how to adapt themselves to those circumstances without delaying the project development.

In addition, it is not uncommon for one of the parties to request the inclusion of a ‘hardship’ clause. In the Anglo-Saxon world, this clause is much more widespread. For example, in a supply contract, the supplier will ask for the inclusion of the clause and will provide that, if an exceptional circumstance occurs which causes hardship for the supplier, the supplier can modify the prices in order to continue executing the contract. In many cases, it is often understood that in the event of an exceptional circumstance, the parties will negotiate in good faith alternative contractual terms to restore the rights and obligations assumed by them when they signed the contract.

In any case, we recommend including these clauses if the contract is subject to the laws of a country whithin the Romano-Germanic system. In case of subjecting the contract to the Common Law, this becomes absolutely indispensable.

Measures to deal with the health, economic and social impact of COVID-19 and the necessity to reduce energy consumption and improve energy, water and renewable system efficiency have affected the horizontal ownership regime. For this reason, two Decree Laws have recently been adopted by the Generalitat de Catalunya (Autonomous Community Government).

On the one hand, Decree Law 28/2021, of 21 December amends the fifth book of the Civil Code of Catalonia to include the regulation of facilities for the improvement of energy or water efficiency and renewable energy systems in buildings subject to the horizontal property regime. In addition, it modifies Decree Law 10/2020 of 27 March, which establishes new extraordinary measures to deal with the health, economic and social impact of COVID-19, in the field of private legal entities subject to Catalan civil law.

The explanatory statements argue for the need to reduce energy consumption and improve the habitability of households through energy rehabilitation. In turn, it foresees the need to guarantee and facilitate the adoption of agreements to the community of owners. Accordingly, articles of fifth book of the Civil Code of Catalonia have been amended.

The new article 553-25 provides for the simple majority of owners and quotas to approve agreements related to the energy efficiency of buildings, whether they are installations or works (even if they involve the modification of the title of constitution or the statutes). At the same time, the precept requires the maximum quorum in the participation of renewable energy projects with other communities of owners and in the conclusion of financing contracts.

As regards the linking of agreements, article 553-30 incorporates a new paragraph which provides that agreements aimed at improving energy efficiency are binding on all owners of the community. However, it guarantees the position of dissidents if the cost exceeds three quarters of the annual budget of the community (due to common expenses and discounted subsidies and aids).

In relation to the use and enjoyment of the adopted installation, if the installation is incompatible with a previously authorized installation or system of particular utility, the community must take care of the removal and compensate for the damage that they entail to the owner.

In this sense, article 553-43 provides the possibility for owners to install infrastructure and equipment for private use to improve energy efficiency. In these cases it will be necessary to present a project 30 days before the president of the community, without prior agreement. As regards costs, these will be borne exclusively by the beneficiary owners. If it is possible according to the installation itself, other owners may have access to it if they contribute with the payment of proportional expenses and costs.

At the same time, Decree includes new measures concerning legal entities under private law subject to the provisions of Catalan civil law. Essentially, the regulation extends until 31 December 2022 the content provided for in Decree Law 53/2020 of 22 December, where the organs of legal entities under private law may adopt agreements by means of videoconferencing or by other means, and may adopt agreements without meeting, even if their articles of association do not provide for it.

The other provision, Decree-Law 1/2022, of 11 January, provides for extraordinary measures to address the health, economic and social impact of COVID-19 within the framework of the owners’ boards in communities subject to the horizontal property regime. The rule extends the previous measures taken:

Firstly, it extends the suspension on the obligation to convene and hold owners’ meetings until June 30, 2022. However, they may be held (with appropriate security measures) at the initiative of the president or at least 25% of owners with voting rights. In the event that the meeting cannot be held, agreements may be made without a meeting, at the request of the person presiding over the meeting (following the requirements of art. 312-7 CCCat).

Secondly, the rule provides for the automatic extension of the annual budget until the next regular meeting, together with the approval of previous accounts and the renewal of posts.

In this article, we have analyzed the novelties of the two decrees law on horizontal property. If you have any questions, you can use the contact area of our website to consult with our civil and commercial litigation department team. We will be happy to assist you.

The Constitutional Court has unanimously partly accepted the unconstitutionality appeal filed by the Popular Party (PP) against the Law 11/2020 of Catalonia, which limited the prices of housing leasing contracts, considering that the power of the government of Catalonia has been overran -and that it is the central administration that has the power to enact laws in this field.

It is expected that the Constitutional Court decision, which declares the unconstitutionality of the “Llei de Contenció de Rendes”, could be published in the BOE during the next month, at which time it would become effective.

In particular, the judgment declares null and void Articles 1 (purpose and scope of the rule), 6 to 13 (determination of the rent, reference price, updating of the rent, rental of new apartments, works, or the obligation for the price to be stated in the advertisements), 15 and 16.2; the first, second and third additional provisions; the first transitory provision and the fourth additional provision and the third final one.

According to the Constitutional Court, these precepts represent an invasion of the autonomous community in the powers of the State in civil matters to regulate the contractual bases, since article 149.1.8 of the Spanish Constitution attributes to the State the competence to establish the criteria for the regulation of the private contracting sector in those autonomous territories that have their own legislation.

In its decision, the Court does not go into the constitutionality of setting limits on rental prices, but it does deny that an autonomous community, in this case Catalonia, which has its own regional (“foral”) law, can regulate this matter.

The Catalan legislation forced to freeze or reduce the price of rents in areas with residential tension in the 60 Catalan cities with more than 20,000 residents, although vulnerable renters who ear less than 2,000 euros per month were exempted. The appeal was filed by te PP parliamentary group in 2020.

The judgement’s effects will be effective in the future and not retroactive, so that rental contracts prior to this resolution will keep the same conditions.

The recent Law 11/2021, of 30 June, on measures to prevent and combat tax fraud, makes numerous modifications throughout the national legal overview, with the aim of adapting Spanish legislation in this area to the regulations within the European Union.

One on the most relevant áreas subject to modification has been real estate investment and the tax implications that may derive from it. In particular, and as the most important point, we would like to highlight the introduction of a new concept: the market reference value.

This value directly affects, since 11th of July, the determination of the taxable base of taxes such as Inheritance and Gift Tax (IGT) (“Impuesto sobre Sucesiones y Donaciones” or “ISD”), Property Transfer and Stamp Duty Tax (PTSDT) (“Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados” or “ITPAJD”), or Wealth Tax (WT) (“Impuesto sobre el Patrimonio o IP”). However, the same does not apply to Real Estate Tax (RET) (“Impuesto sobre Bienes Inmuebles” or “IBI”), where the reference will continue to be the cadastral value of the property.

For IGT and PTSDT, the taxable base is set at the market reference value, unless the value declared by the interested parties is higher. If there is no such reference value, the taxable base is the higher of the market value and the value declared by the interested parties.

In addition, the Law recognises the possibility for the taxpayer to challenge this market reference value when appealing the administrative settlement or when requesting the rectification of the self-assessment, and excludes the possibility for the Administration to check the property value when the market reference value or a higher one is used.

In relation to the WT, it is established that real estate (both rustic and urban) will be computed at the highest of the following three values: the cadastral value, the value determined or verifieed by the Administration for the purposes of other taxes (the market reference value) or the price, consideration or acquisition value.

But what is the market reference value?

According to the Law 11/2021, the General Direction of the Cadastre will determine objectively, from the data collected in the Cadastre, this reference value, which will be the result of an analysis based on the prices communicated by the public notaries in the real estate sales and purchases made.

To this purpose, the General Direction of the Cadastre will include the conclusions of the analysis of these prices in an anual reporto n the real estate market, as well as in a map of values delimiting the territorial áreas of valuation, to which it will assign average value modules for real estate products.

The limit of the reference value is the market value, and in order not to exceed it, market depreciation factors are set for properties of the same class.

The elements for determining the reference value of each property and the corresponding reduction factors shall be approved, by resolution, by the General Direction of the Cadastre before 30th October of the previous year to that in which ther are to take effect.

Before their approval, a collective audience will be held, during which the interested parties may present the allegations and evidences thet deem appropriate. Likewise, the General Direction of the Cadastre’s resolution may be appealed via economic-administrative channels or by means of an appeal for reconsideration.

However, until the regulatory development is approved, the Law distinguishes between urban and rural real estate, to which it establishes the application of the value modules in accordance with the following guidelines:

On the one hand, the standars for the value of urban real estate will be based on the technical rules for valuation and buildings. In addition, the land values of each zone will allow the reproduction of the average value modules in each homogeneous territorial area of valuation.

The resolution to be approved by the General Direction of the Cadastre will define its application and will specify its calculations methods, basic land and construction modules, land values for each zone and their construction costs, as well as, where appropriate, fields of application of corrective coefficients.

On the other hand, in relation to rural properties without buildings, the resolution to be approved by the General Direction of Cadastre will define their scope of application, specifying calculation methods, as well as, where applicable, amounts and fields of location, agronomic and socio-economic corrective coefficients.

Although it is true that this is a new reference value, it is surprising that a valuation is established which, in essence, ignores certain particular circumstances that can increase or decrease the value of a property, such as sunlight, the location of a bar under the property, the building architecture with columns or master walls where work cannot be carried out, the state of the property itself, the amount of community expenses and a long etcetera of factors that can decrease or increase by 10% or 20% depending on the specific circumstances of the property.

Translated with www.DeepL.com/Translator (free version)

These are the most important issues that, with regard to the taxation of real estate investment, can be found in the modifications made by the Law 11/2021, of 30th June, on measures to prevent and combat tax fraud.

If you would like to know more about related matters, ori f you intend to invest in real estate with confidence, please do not hesitate to contact our Real Estate department by emailingo info@busquets-abogados.com or by calling 934 160 004.

Comments on the Judgment 787/2020, of 4 November. Barcelona Provincial Court

This Judgement, which establishes very important principles on lease contracts interpretation, arises from a procedure in which the plaintiff claims from the defendant the payment of a certain sum of money, due to the damages existing in the leased property at the time of its return.

To this end, the plaintiff directs her action not only against the two tenants of the property, but also against the joint and several guarantor of both.

When resolving the conflict, the Provincial Court establishes several principles, which can be summarised as follows:

Firstly, the Audiencia recalls the obligation of the lessee to return to the lessor the rented dwelling or premises at the end of the lease «as it was received, except for what has perished or has been damaged by time or by an unavoidable cause».

Furthermore, a double presumption iuris tantum (i.e. presumptions that can be rebutted by proof to the contrary) is also established: on the one hand, the tenant is presumed to have received the dwelling or premises in good condition at the beginning of the lease; and, on the other hand, the tenant is presumed to be at fault in the event of deterioration. The burden of proof to the contrary to rebut both presumptions rests with the lessee.

An important fact at this pont lies in the definition of “receiving in good condition”, which doesn’t mean receiving the dwelling “new”, but in the same condition in which it was received, admitting certain deteriorations due to habitability over time or due to unavoidable causes, by virtue of articles 1.562, 1.563 and 1.564 of the Spanish Civil Code.

All that the Provincial Court clarifies in this Judgment is understood, however, without prejudice to what has been agreed between the parties, who may establish, by mutual agreement, what they deem appropriate in the clauses of the contract.

In addition, the Provincial Court recalls the principle followed by the Supreme Court, when provides for compensation in the event of damage.

«It is reasonable to take into consideration the circumstances of the damaged property in order to reduce the compensation, for reasons of equity and to avoid unjust enrichment, considering as such the dilapidated condition of the property (…) or other similar aspects that detract from it».

This principle is intended to limit the cost of compensation, taking into consideration factors such as the age and condition of the rented property.

Finally, the principle we consider the most innovative and important (and, perhaps, the most technical-legal) lies in the perspective that the Barcelona Provincial Court holds on the joint and several surety in favour of a non-lessee third party, and its possible lack of standing to sue (that is, the impossibility of being sued in the process).

The Judgement, in order to verify wheter the liability of the joint and several guarantor can be extended to the object of the proceedings (compensation for damage caused by the lessee), and, thereforo, be considered a co-defendant, states that it is commonly accepted doctrine that the bond is not presumed, in accordance with article 1.827 of the Spanish Civil Code, but that it must be express and cannot extend to more tan what is contained therein.

In this way, in order to verify the scope of the bond, the Court establishes the obligation to attend what was agreed between the parties (by virtue of articles 1.091 and 1.255 of the Spanish Civil Code), both with regard to the contractual duration and the bonding clause. The Judgement established, as settled doctrine, that «in order to ascertain the intention of the parties, the entire contract must be taken into account, and not a clause isolated from the others».

Furthermore, according to the commonly accepted doctrine, it is provided that the guarantee clause must be interpreted in a restrictive way, for the debtor’s benefit, as a principle and general rule in the interpretation of contracts.

It should be noted that, in the lease contract object of this Judgment, one of those co-defendants was established as a joint and several guarantor in the following terms: “constitutes (…) himself (…) as personal and joint and several guarantor and for all purposes guarantees the tenants in the lease (…) taking responsibility for any non-payment that may arise”.

In the opinion of the Provincial Court, that clause doesn’t expressly extend the responsability to the fulfilment of all obligations, only to monetary obligations; and extending this liability to a non-monetary obligation (such as, certainly, the obligation to maintain and return the rented property or premises in the same state in which it was received), would violate the principle of restrictive interpretation of the bond, in favour of the debtor.

Therefore, the Provincial Court considers that liability cannot be extended to the joint and several guarantor in this case.

In the lease contracts that we draw up at BUSQUETS, we always recommend expressly detailing the obligations of the parties (lessor, lessee and possible joint and several guarantors), in order to avoid what happens in the present case: that, by not correctly foreseeing the extension of the responsibilities of the other party, the lessor may be harmed by a possible non-payment by the debtors, not being able to claim the fulfilment of non-monetary obligations from the joint and several guarantor, whose responsibility would have been extended if the clause in the contract had been drafted correctly.

1. INTRODUCTION

The following is a summary of the main regulations contained in Decree 75/2020 of 4 August 2020 on Tourism in Catalonia (hereinafter, the “Catalonia Tourism Decree“), which focuses mainly on tourist accommodation establishments, the new regime for tourist accommodation and the regulation for the first time of shared accommodation for tourist purposes (home-sharing), as well as the control of compliance with the requirements established by the tourism regulations.

It was published in Diari Oficial de la Generalitat de Catalunya on 6 August 2020 and came into force 20 days after its publication, i.e. on 26 August 2020, except for Title IV on home-sharing, which will come into force on 6 August 2021.

According to the Explanatory Memorandum of the regulatory provision, “with this Decree, the integration of tourism regulations applicable in Catalonia culminates its process, recasting 7 regulatory provisions in force in the field of tourism in Catalonia“.

1. Decree 66/2014, of 13 May, on the regulation of tourist information, dissemination and assistance services in Catalonia.
2. Decree 159/2012, of 20 November, on tourist accommodation establishments and dwellings for tourist use.
3. Order EMO/418/2012, of 5 December, on the structuring of the Catalan tourism quality system.
4. Decree 420/2011, of 20 December, on the creation of the Catalan Tourism Board.
5. Decree 46/2010, of 30 March 2010, creating the Interdepartmental Commission for Tourism.
6. Decree 52/1997, of 4 March, which regulates the sanctioning capacity in tourism matters.
7. Decree 161/2013, of 30 April, approving the Regulations of the Fund for the Promotion of Tourism.

With regard to the scope of application of the Catalonia Tourism Decree, based on Article 111-2, “The provisions of this Decree apply to the tourism businesses and activities regulated in the Tourism Act and to the tourism administrations located in Catalonia. They also apply to the new types of tourist accommodation companies regulated in this regulation under the name of motorhome reception areas, unique accommodation and shared homes.

Excluded from this Decree are those establishments, residential facilities, means of transport or vehicles where overnight stays are permitted that are regulated by their own regulations, such as youth facilities, residences for the elderly, student residences, establishments where sexual or similar activities are carried out”.

2. TOURIST APARTMENT ESTABLISHMENTS

Tourist accommodation establishments are those which, in a habitual manner, with a professional character and with the corresponding authorisation, offer users, for a price, temporary accommodation in accommodation units, as well as other tourist services in accordance with the conditions and typologies established in this regulation.

Within this typology, we find the establishments of tourist flats, which are buildings or continuous complexes made up entirely of flats or studios as a single establishment or as a business unit of exploitation, with the corresponding tourist services.

Annex 1 of the aforementioned Decree establishes the minimum tourist requirements for hotel establishments.

3. TOURIST DWELLINGS

According to article 221-1, a dwelling for tourist use is considered to be that which is ceded by its owner, directly or indirectly, to third parties, in exchange for an economic consideration for a seasonal stay and in conditions of immediate availability.

A seasonal stay is considered to be any occupation of the dwelling for a continuous period of time equal to or less than 31 days. Therefore, tourist accommodation establishments cannot become the main or secondary residence of tourist users.

Furthermore, it is important to bear in mind that tourist dwellings are rented as a whole, and are not allowed to be rented on a per-stay basis. As for their maximum capacity, they may not be occupied with more places than those indicated in the certificate of occupancy and in any case, the number of places may not exceed 15. The purpose of this restriction is to make tourist accommodation activity compatible with neighbourhood coexistence, the right to rest and the provision of a quality service.

On the other hand, it is important to bear in mind that only duly authorised dwellings registered in the Tourism Register of Catalonia may be transferred, and in the event that the owner of a property becomes aware of a clandestine activity, he/she has the duty to notify the competent Administration, as well as to take the corresponding civil action aimed at the effective cessation of the tourist activity.

Consequently, the use of a dwelling for tourist use must be compatible with the regulation of the uses of the sector in which it is located and with the applicable civil regulations.

In line with this, it is worth highlighting the special regime in the municipality of Barcelona, as it provides for the possibility for Barcelona City Council to establish, by ordinance and for new authorisations, specific requirements for tourist accommodation activities in dwellings for tourist use and in shared homes, as well as time limitations and maximum periods of validity.

Finally, the maximum limit of 15 places will not apply to tourist accommodation already registered at the time of entry into force of the Catalan Tourist Decree, except in the event of a change of capacity or change of ownership. Thus, in the event of cessation, termination or expiry of the authorisation, the new activity to be implemented must comply with the regulations in force.

4. SHARED HOME

The Tourist Decree of Catalonia does not expressly regulate the tourist rental of rooms, but includes a new type of tourist accommodation: the shared home.

A shared home is considered to be tourist accommodation that is the main dwelling and effective residence of the owner and that is shared as an accommodation service with third parties in exchange for a financial consideration and for a seasonal stay.

It is essential in this legal concept that the owner of the property must reside in the dwelling for the duration of the stay. As mentioned above, a seasonal stay is considered to be any occupation of the dwelling for a continuous period of time equal to or less than 31 days.

The person in charge of the activity may be the owner of the property or the person expressly authorised by the owner. In this case, the authorised person must fulfil the same conditions of census registration and effective residence required of the owners.

It is also important to note that dwellings that are not registered and duly authorised may not be transferred. In the event that the owner of a property becomes aware of any clandestine activity, he/she has the duty to report it to the competent Administration, as well as to take the corresponding civil actions aimed at the effective cessation of the tourist activity.

Therefore, the destination of a shared home must be compatible with the regulation of the uses of the sector where it is located and with the applicable civil regulations.

5. UNIQUE ACCOMODATIONS

The Catalan Tourist Decree provides for this new type of accommodation that, while providing temporary accommodation in exchange for a financial consideration, does not fall into any of the regulated types of tourist accommodation or those expressly excluded by the aforementioned regulation.

By way of example, this type of accommodation could include tree huts, shepherds’ huts, huts such as those in the Ebro delta, caves, etc., among others.

Local councils may set up unique accommodation in their municipal area provided that they define and delimit the activity, in accordance with the minimum conditions established by these regulations, as well as all applicable non-tourist sector regulations (safety, health, environment, etc.). However, under no circumstances may unique accommodation be enabled with the aim of avoiding the application of the different sectorial requirements demanded of other types of tourist accommodation.

 

Does my entity need a Data Protection Officer? Should this figure be held by a lawyer? Before answering the first question posed, it is useful to know some differences between a Data Protection Officer (“DPO”) and a lawyer. The difference lies in the fact that the DPO has an independent role and offers a multidisciplinary vision that goes beyond a simple legal advice. In the following sections, we will answer the first query, knowing more precisely those cases in which a DPO must be appointed, the functions that a DPO carries out, as well as knowing the relations of this figure with the different agents, inside and outside the organisation.

Let us begin. A DPO is a new figure introduced by the data protection regulation to guarantee compliance within this legal framework in an entity. It may be either an individual or a legal entity, provided that it coincides in a profile of data protection expert and, furthermore, has specialist knowledge in law, although for this it is not mandatory to be a lawyer.

Subsequently, after this first approximation, it is now necessary to know in which cases it operates, and therefore to know whether its appointment is necessary. According to the regulation, the appointment of the DPO will be mandatory, when (i) the processing is carried out by a public body; (ii) the processing operations involve the processing of large amounts of personal data on a “large scale“; or (iii) the processing operations consist of the processing on a “large scale” of special categories of personal data (e.g. health, genetic or biometric data).

In contrast, if one of the three scenarios occurs, then such designation will be mandatory, regardless of other aspects such as the size of the company or its sector of activity, among others. Thus, without going into the matter of designation, it should be added that the designation must publish the contact details of the DPO, in order to clearly establish the point of contact between the entity and the data subject; and, in addition, the appointment, renewal and termination of the DPO must be communicated to the competent supervisory authority (e.g. www.aepd.es).

On that sense, whether we are in force or not, if we wish to appoint a DPO, the designed person must, as a minimum, carry out the following functions within the  organisation, we shall see: (i) inform and advise on the obligations arising from the data protection regulations, with a multidisciplinary vision that goes beyond the purely legal aspects (e.g. privacy by design and by default); (ii) supervise compliance in an independent manner (e.g. internal auditor), raise awareness and train staff in data protection; (iii) advise on a Data Protection Impact Assessment; (iv) cooperate with the competent supervisory authority; and, (v) serve as a contact point with that supervisory authority.

To sum up, our recommendation is that you should be well informed about this new figure, be aware of it, and more importantly, that when you choose a DPO, both the Controller and/or Processor should ensure that the individual in charge is aware of the DPD’s data protection expertise; for a simple reason, a mala praxis by the designed DPD could entail some risks of non-compliance with the regulation, and as well as creating setback that would prevent or delay the company’s activity, and even the organisation’s innovation. Therefore, according to Article 83.4 of the RGPD, such non-compliance with the referred regulation, may lead to infringements and shall be subject to administrative fines up to 10 million euros, or in the case of an undertaking, up to 2% of the total worldwide annual turnover of the preceding financial year, whichever is higher, and won’t prescribed after two years.

If you have any queries or you shall need a data protection delegate, we will be very happy to help you in this regard. You can also contact us at mgilvernet@busquets-abogados.com.

As a continuation of our previous LegalNews related to the COVID-19 issued by this firm, we inform you that the Catalan Government has announced a modification of the Catalan Civil Code with the intention of including a legislative regulation of the rebus sic stantibus clause.

According to what has already been stated in previous LegalNews, such a clause is a general principle of law (not a rule) that can come into play when there is: 1) an extraordinary alteration of circumstances between the time of signature of the contract and the time of performance of the contract; 2) there is an exorbitant disproportion between the performances of the parties; 3) the cause is radically unforeseeable; 4) there are no other means to save the damage.

The purpose of this clause is to make the compliance of contracts more flexible in the event of a later, radical and unforeseeable change from the circumstances existing at the time the contract was signed.

However, since the rebus sic stantibus clause is not currently provided for by law, the party to which the clause is invoked is not obliged to accept it. However, the party invoking may go to court, and there is a growing case law that considers the application of the clause appropriate and consequently opts for flexibility in the performance of the contract.

At present, in the context of the COVID-19 crisis, the rebus sic stantibus clause is particularly relevant, as it has been invoked in several legal areas, especially in the field of lease contracts.

Many tenants, both in residential and business premises, have had and have difficulty paying the rent. Some of them have suffered a sharp drop in income and are asking their landlords/landladies for special conditions for paying the rent. Such disputes are not always resolved by amical agreements.

Therefore, in view of this situation, the Catalan Government has considered it necessary to establish by law the duty to be able to renegotiate contracts in exceptional situations, such as the current crisis caused by the pandemic that we are suffering at a global level.

However, we emphasise that this is a proposal by the Government that has not yet materialised, but will have to be approved, if necessary, by Parliament at a date yet to be determined.

We will keep you informed of any new legislation related to the effects of COVID-19.

If you have any questions regarding the effects of COVID-19, please do not hesitate to contact this firm by e-mail at info@busquets-abogados.com.