It was written on 24 June 2016. The law and practice in Spain change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.
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This guide is only about your rights if you are sold, or injured as a result of, a product which is defective. It should be read in conjunction with our Guide to Accidents on the Costa del Sol and Guide to the Legal System on the Costa del Sol.
It describes, in particular, how to deal with a defective product in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one "autonomous community" (comunidad autónoma) to another.
The regulation surrounding product liability in Spain has undergone several modifications in the past few decades.
Europe's biggest ever case of liability for defective products happened in Spain: the Caso de la Colza. In the spring of 1981, over 20,000 people were poisoned, over 600 of whom died. Denatured rapeseed oil, unfit for human consumption, was blamed.
Following this tragedy, the government had to react - approving a number of regulations. The first new rules appear were under Law 26/1984 (General Defence of Consumers and Users) and Law 22/1994 (Liability for Damage Caused by Defective Products). Both of these standards were later repealed as they fell under EU and other international laws.
Currently, this area of Spanish law is governed by the rules laid down by Royal Decree 1/2007 of November the 16th, which approved the revised text of the General Law for the Protection of Consumers and Users (TRLCU), along with other complementary laws. In the rest of the guide we will refer to Royal Decree 1/2007 as TRLCU.
By a defective product, we mean a product that does not offer the security, safety and reliability that you could legitimately expect, taking into account all of the circumstances - including what is said about it (e.g. in advertising materials) and the use to which you can reasonably be expected to put it.
In any case, a product is defective if it does not offer the security normally offered by other products of the same type.
A product cannot be considered to be defective merely because a similar product is later put into circulation in an improved or upgraded form.
A defect can be:
A manufacturing defect: the product does not correspond to those of the same series
A design flaw: the product has a failure in its conception
A failure in information: bad results from insufficient or inaccurate information on consumption, use or handling of the product
The main requirement for making a claim of this type is to have suffered damage caused by a defective good or service. Article 139 of the TRLCU puts the burden of proof on the injured party, who must prove the defect, damage and the link between them to get compensation for damages.
Again, talking to a lawyer who specialises in this area of law is the best way to know whether you have a claim.
Spanish liability law surrounding defective products covers personal injury, including death, and property damage - provided that the defective goods or services were for private use or consumption and have mainly been used by the victim.
Anything not covered by this area of liability would be covered by the general rules of civil liability. See our Guide to Accidents on the Costa del Sol and Guide to the Legal System on the Costa del Sol.
The TRLCU usually redirects responsibility for defective products to the 'producer' of the product, rather than to the distributor. It could, however, put responsibility to others with comparable responsibility (in cases where it is difficult to claim against the real manufacturer) such as: the local importer, the supplier and, in exceptional cases, the distributor.
Article 138 of TRLCU defines a 'producer':
The manufacturer of the goods; or the service provider or his intermediary
The importer of the good or service to the territory of the European Union, as well as any other person introducing himself as such, either on the packaging, the wrapping, or any other element of protection or presentation, trademark or other distinguishing marks
The manufacturer or importer in the EU (...), regardless of the production mode.
In cases where you cannot identify the producer, "it will be considered as the product provider unless, within three months, indicating the damaged or harmed the producer's identity or who had supplied him or he provided to that product. The same rule applies in the case of an imported product, if the product does not indicate the name of the importer, even if the manufacturer's name indicated ".
This depends on what you're claiming for.
In the case of a warranty claim, the law states that any rights granted to an injured party become void within 10 years starting from the date in which the product that caused the damage was put into circulation - unless, during that period, the injured party has already made a claim. (Article 144 of the TRLCU).
If you are claiming for personal injury or harm due to a defective product, you must make the claim within three years of the injury happening. (Article 143 of the TRLCU).
However, it is a very good idea to go to your lawyer as soon as possible after suffering injury or damage due to a defective product. He will be able to tell you whether you can make a claim and, if so, get the ball rolling quickly.
The injured party makes a claim against all those responsible, all of whom will be liable.
After this, the party you have claimed against has the right to re-claim against any other people he considers to be more responsible. He must do this within a year of paying out to the injured party.
On the Costa del Sol it is extremely common for manufacturers, importers and distributors to take out insurance to cover claims arising from defective products or services.
Have you got experience with defective products in Spain? Tell us about it by emailing firstname.lastname@example.org.
The General Law of Consumers and Users protects all of those hurt by a defective product by directing the responsibility to the manufacturer or producer (or others with comparable repsonsibility).
Your rights under the Law on Protection of Consumers and Users do not affect any other rights.
|Dealing with an Accident on the Costa del Sol
This guide is about accidents on the Costa del Sol and what to do when you have one. It deals only with general accidents.
|Consumer Protection on the Costa del Sol
This guide deals with the rights of consumers when dealing with businesses based on the Costa del Sol Some of these rights arise under the general law and some arise under specific consumer protection laws.
|The Legal System in the Costa del Sol
This guide explains, briefly, the legal system in Spain and, by extension, in the Costa del Sol. It covers the criminal legal system, the civil legal system, the family law legal system, the administrative law system, the way laws are made and the legal services available in Spain.
We hope you have found this guide useful. If you need any further help, please contact us.Manzanares Abogados S.L. 24 June 2016