1. Economically dependent
self-employed workers. Contract content and creation of the State
Registry of Professional Associations for the Self-employed
Royal Decree 197/2009 of 23 February develops the Statute of Self-employment
within the scope of the economically dependent self-employed worker’s
contract as well as its registration and creates the State Registry of
Professional Associations for the Self-employed (Official Spanish
Gazette of 4 March 2009)
In developing Law 20/2007, Royal Decree 197/2009 of 23 February
(“Royal Decree”) establishes that an economically dependent self-employed
worker ("EDSW") must notify clients of his/her status as such. Failure
to notify clients will result in the legislation’s inapplicability to
the relationship. Similarly, according to the Royal Decree the client is
entitled to request that the EDSW evidence compliance with the relevant
requirements for EDSWs. This request may be made upon execution of the
contract as well as at any time during its validity provided that at
least six months have passed since the most recent request.
Contracts with EDSWs must be in writing and will last for the term
agreed upon by the parties. Unless otherwise evidenced, an indefinite
term will be assumed if a term is not indicated.
Such contracts must also indicate the following: the parties to the
agreement, the basis on which the status as economically dependent self-employed
worker is claimed in relation to the client entering into the contract,
the purpose and object of the contract, the specific services that the
EDSW will provide, the economic consideration, the scheme for the annual
interruption of the business activity, weekly rest and public holidays,
the maximum length of the working day including weekly distribution if
considered in months or years and the professional interest agreement (a
type of collective bargaining agreement that can be agreed by the self-employed
workers associations and their clients) that may be applicable provided
that the EDSW expressly agrees.
Contracts may also contain the following: the starting date and the
term of the contract and related services, the notice that the EDSW or
client must provide to terminate the contract and, where appropriate,
other causes of suspension or termination of the contract, the right of
either the client or the EDSW to compensation for termination of the
contract, the manner in which the parties intend to more effectively
prevent occupational hazards, the contractual conditions applicable
should the EDSW cease to fall under the scope of economic dependence and
any other provisions that the parties deem appropriate and that are in
accordance with law.
The EDSW must register the contract with the Public Employment
Service (Servicio Público de Empleo Estatal) within ten
days of signing the contract and must duly inform the client of the same.
If the EDSW fails to register the contract, the client must carry out
the registration.
Within a period of ten working days of signing the contract, the
client must inform the employee representatives of the agreement,
particularly of the following: the identity of the EDSW, where the
services will be rendered and the contract’s start date and term. The
Royal Decree includes specific provisions for contracts with EDSWs who
provide specific services such as insurance agents, transport providers
and brokers. The Royal Decree provides an attached model contract.
Lastly, the Royal Decree creates the State Registry of Professional
Associations for self-employed workers, with which self-employed workers’
non-profit associations, federations, confederations and self-employed
workers unions or professional associations must register.
2. Urgent measures for the
safeguarding and promotion of employment and the protection of the
unemployed
Royal Decree-law 2/2009 of 6 March on urgent measures for the
safeguarding and promotion of employment and the protection of the
unemployed (Official Spanish Gazette of 7 March 2009)
The measures approved by Royal Decree-law 2/2009 of 6 March are
divided into three sections:
Chapter I. Safeguarding of employment
Temporary employment regulations prevail over the termination of
employment contracts, in such a way that 50% of the employer’s
contributions to the Social Security (“SS”) are subsidised if he/she
opts to adjust temporary employment instead of terminating labour
contracts to ensure the continuity of the business and job positions. In
this respect, the employer must undertake to maintain such employment
contracts for a minimum of one year as from the moment the activity
resumes after a suspension or temporary reduction of the working day.
In addition, the special social security agreement to be entered into
within the scope of certain collective dismissals of companies not
involved in insolvency proceedings is amended. The amendment is designed
to (i) avoid premature departure of older employees from the labour
market whose labour contracts are terminated by collective dismissals
and (ii) enhance protection of such employees. To do so, the employer’s
contribution to the SS during the special agreement will be considered
as the part of the agreement that the employee must bear as from the age
of 62. In this way, the working life of the employee is extended and his/her
retirement pension is unaffected upon exiting the labour market.
Chapter II. Social protection of employees
The government establishes two measures to enhance the protection of
employees: (i) the restoration of unemployment benefits and social
security contributions for employees whose employment contracts have
been suspended or whose working days have been reduced and whose
employment contracts have subsequently been terminated for economic,
technical, organisational or production reasons and (ii) the elimination
of the one month period prior to which unemployment benefits could not
be received.
Chapter III. Incentives to employ unemployed workers
An employer whose workers receive unemployment benefits is entitled
to a 100% discount in its contributions to the SS for such employees, up
to a maximum amount equivalent to that of the unemployment benefits to
which the employee would be entitled. This discount can be received for
a maximum term of three years. The incentive also applies to workers
benefiting from welfare subsidies and income for access to employment.
The measure also promotes the use of part-time indefinite contracts
given their stability and advantages regarding the organisation of work
and the conciliation of professional and family life.
In order to better address growing unemployment, the government is
also empowered to extend the special guidance measures, professional
training and employment placement programme implemented in April 2008.
The Royal Decree-law 2/2009 of 6 March was approved by Parliament on
26 March 2009.
3. Maternity. Measures to
promote better health and safety at work
Royal Decree 298/2009 of 6 March, amending Royal Decree 39/1997 of
17 January, which approves the Prevention Services Regulations, in
relation to the implementation of measures to promote better health and
safety at work for pregnant employees, employees who have given birth or
for employees during the period of lactation (Official Spanish Gazette
of 7 March 2009)
Royal Decree 298/2009 completes the transposition of the two annexes
of Directive 92/85/EEC into Spanish law. Annex I to the directive
contains a non-exhaustive list of factors, processes and working
conditions to which special attention should be paid when assessing
occupational hazards on the basis that they may adversely affect the
health of pregnant employees or the foetus. Annex II provides a non-exhaustive
list of factors and working conditions that pregnant and employees in
lactation are prevented from performing if there is risk of exposure
according to the occupational hazards prevention plan.
In this respect, this Royal Decree amends Royal Decree 39/1997 of 17
January, which approved the Prevention Services Regulations containing
the general provisions on the assessment of occupational hazards.
Particularly, this Royal Decree amends article 4.1.b) of the Prevention
Services Regulations in specifying that the assessment of occupational
hazards should take into account the fact that the relevant employee may
be especially vulnerable on the basis of his/her personal
characteristics or known biological condition, as regards the
occupational hazards inherent to his/her position.
Similarly, this Royal Decree adds a new section on the assessment of
occupational hazards with regard to pregnant women or nursing mothers
and introduces two new annexes to the Prevention Services Regulations:
• Annex VII includes a non-exhaustive list of factors, processes and
working conditions that may adversely affect the health of women during
pregnancy or the period of lactation, the foetus or the child during
lactation, in any activity which may give rise to special exposure to
occupational hazards.
• Annex VIII is divided into two parts: the first part includes a
non-exhaustive list of factors and working conditions on the basis of
which the employer should prevent pregnant employees from performing
activities that, in accordance with the occupational hazards assessment,
entail a risk of exposure. The second part governs the prohibition of
women during lactation from carrying out activities that, in accordance
with the occupational hazards assessment, imply a risk of exposure to
harmful factors or conditions when employees’ health and safety or that
of the child during lactation is put in danger.
Annexes VII and VIII refer to physical (knocks, heavy loads,
radiation, noise, intense heat or cold), chemical and biological hazards
as well as industrial processes.
Lastly, this Royal Decree establishes the Ministry of Labour and
Immigration’s evaluation of the operation of these provisions within the
first three years of the coming into force of this Royal Decree. The aim
of this evaluation is to analyse the need to update or amend the factors,
substances or industrial procedures set out in Annexes VII and VIII as
well as the need to incorporate any amendments as a result of Community
legislation on these matters.
4. Subcontracting in the
construction sector. Automated administrative procedures related to the
Accredited Companies Registry
Royal Decree 327/2009 of 13 March amends Royal Decree 1109/2007 of
24 August, which develops Law 32/2006 of 18 October on subcontracting in
the construction sector (Official Spanish Gazette of 14 March 2009)
Royal Decree 327/2009 of 13 March modified Royal Decree 1109/2007 of
24 August in order to expedite certain administrative procedures related
to the Accredited Companies Registry as well as those for the issue of
certificates by allowing the use of electronic signature systems.
Thus, in accordance with article 13.3 of Law 11/2007 of 22 June on
electronic access to public services by citizens and its developing
regulations, the Seventh Additional Provision to Royal Decree 1109/2007
of 24 August on automated administrative procedures enables the
competent labour authorities to use electronic signature systems for
automated administrative procedures related to the Accredited Companies
Registry.
5. Reduction of the legal
and default interest rates
Royal Decree-law 3/2009 of 27 March on urgent taxation, financial
and insolvency measures in view of the evolution of the financial
situation (Official Spanish Gazette of 31 March 2009)
Royal Decree-law 3/2009 of 27 March modifies the legal and
default interest rates established by the State Budget Law for 2009, due
to the significant drop in the indexes used to determine the legal
interest rate.
As a result, the legal and default interest rates are set at 4% and
5% respectively from 1 April until 31 December 2009.
6. Collective dismissal
authorisations for companies involved in insolvency proceedings
Royal Decree-law 3/2009 of 27 March on urgent taxation, financial
and insolvency measures in view of the development of the financial
situation (Official Spanish Gazette of 31 March 2009)
The Royal Decree amends paragraphs 1 and 3 of article 64 of Law
22/2003 of 9 July on insolvency regarding collective dismissal
proceedings. These changes relate to the competence of the insolvency
judge to decide on collective dismissals once insolvency is declared
rather than when insolvency is applied for, as was the case previously.
Moreover, substantial changes to the working conditions and collective
suspension or termination of the labour relationships may be requested
at any time as from the declaration of insolvency, without waiting for
the insolvency trustees to issue the report mentioned in Chapter I,
Title IV of Law 22/2003, if the delay in implementing such measures can
seriously compromise the future viability of the company or can cause
serious damages to the employees.
In accordance with the Eighth Additional Provision to the Royal
Decree, the changes will apply to insolvency proceedings in which there
has been no application for substantial changes to working conditions or
the collective suspension or termination of employment contracts on the
date of the coming into force of the Royal Decree.
7. 4th Agreement
on out of court settlement of labour disputes
Decision of the General Labour Directorate of 24 February 2009,
registering and publishing the 4th Agreement on the out of
court settlement of labour disputes (Official Spanish Gazette of 14
March 2009)
This decision registered and published the 4th Agreement
on the out of court settlement of labour disputes (the “Agreement”)
entered into on 10 February 2009 by the Confederación Sindical de
Comisiones Obreras and the Unión General de Trabajadores (trade
unions) on the one hand, and by the Confederación Española de
Organizaciones Empresariales and the Confederación Española de la
Pequeña y Mediana Empresa (company representative associations), on
the other.
The Agreement aims to maintain and develop an out of court system to
settle disputes arising between employers and employees or their
respective representative organisations. The Agreement excludes disputes
regarding social security issues other than supplementary social
security and pension plans. All Spanish territory will fall within scope
of the Agreement, which will be in force from 15 March 2009 until 31
December 2012.
The Agreement is statutory in nature and its implementation in the
various sectors requires the ratification of employer and employee
representatives in accordance with article 3. Unconditional consensus on
the entire Agreement must be obtained.
Similarly, the Agreement governs the Commission for Mediation and
Arbitration (Servicio Interconfederal de Mediación y Arbitraje)
and sets out both procedures (mediation and arbitration) for the out of
court settlement of disputes.
8. Equal treatment in
employment and occupation. Unequal treatment on the basis of age is not
discriminatory if the reasons are objectively justified
Decision of the Third Chamber of the European Court of Justice
dated 5 March 2009
The European Court of Justice (“ECJ”) examined the application of
Directive 2000/78/EC of 27 November 2000 (“the Directive”) for the equal
treatment in employment and occupation. Under Article 6 of the Directive,
“Member States may provide that differences of treatment on grounds of
age will not constitute discrimination if the reasons are objectively
and reasonably justified within the scope of domestic law by a
legitimate aim such as policies related to employment, the labour market
or vocational training objectives and the means of achieving this are
appropriate and necessary”. The United Kingdom transposed the Directive
by means of the 2006 Regulation on employment equality. The National
Council on Ageing claimed that the regulation violated the provisions of
the Directive, as Article 30 contains an exception to the principle of
non-discrimination, namely, that the reason for termination of the
employment relationship with an employee of 65 years of age is
retirement.
The ECJ has stated that, while the principle of equal treatment is a
fundamental principle of European law, directives are binding on Member
States in relation to the result to be achieved. Nevertheless, the ECJ
has at the same afforded national authorities sufficient autonomy to
decide on the best way to achieve such results. The transposition of a
directive does not require a literal transcription of the formal
requirements. Therefore, the Directive cannot be considered as imposing
an obligation on Member States to establish a specific list of justified
exceptions to the principle of equal treatment.
Article 6, paragraph 1 of the Directive states that the objectives
deemed "legitimate" within the scope of such provision and, therefore,
those that justify the exceptions to the prohibition of discrimination
on the basis of age, are those (i) relating to social policy objectives,
(ii) related to employment policies, (iii) forming part of the labour
market or (iv) professional training.
Therefore, according to the ECJ, the Directive allows Member States
to carry out certain types of differential treatment on grounds of age
when they are “objectively and reasonably” as justified by a legitimate
purpose such as employment policies, labour market or professional
training. Nonetheless, Member States have the burden of proving the
legitimacy of the objective raised as a justification for such measures.
Finally, without declaring the invalidity of the regulation, the
decision held that “national courts are competent to assess the facts on
a case-by-case basis and to interpret domestic legislation in order to
determine whether a provision allowing employers to terminate employees’
employment who have reached retirement age is objectively justified”.
9. Dismissal. Succession of
temporary contracts. Determining an employee’s length of services for
compensation purposes is connected to the calculation of the limitation
period of the claims for dismissal that the employee could have filed in
between contracts
Decision of the Labour Chamber of the Supreme Court dated 26
September 2008
The Supreme Court (“SC”) analysed the calculation of the expiration
period of claims for dismissal after the reform of article 182.1 of the
Law on the Judiciary (“LJ”). The dispute did not relate to whether or
not the dismissal brought by the employee was void, but rather as to the
determination the length of services of an employee for the purposes of
calculating the severance payment. In this case, the employee has
rendered services through a number of fixed-term contracts which were
interrupted. The SC analysed the effects of the time intervals between
every contract on the employee’s length of services.
The ruling declares that in connection with the action for dismissal,
such interruptions must be considered in accordance with article 182.1
of the LJ and must exclude Saturdays, Sundays and holidays as well as 24
and 31 December, thus amending the Court of Appeal’s error.
The SC overturned the appealed decision and held that the employee’s
length of services from the first fixed-term labour contract was to be
considered for the purposes of the severance payment.
10. The dismissal of a
pregnant employee should be declared void regardless of the employer’s
knowledge of this circumstance
Decision of the Labour Chamber of the Supreme Court dated 17
October 2008
On 19 July 2006, the SC held that an employer must be aware of the
pregnancy of an employee in order for a dismissal to be declared void.
However, in a decision dated 17 October 2008, the SC held that this
requirement had changed as a result of the Constitutional Court’s
interpretation of article 55.5 b) of the Statute of Workers (“SW”) after
the reform introduced by Law 39/1999 of 5 November to promote the
conciliation of professional and family life.
The purpose of the regulation was to complete the transposition into
Spanish law of the guidelines set by various international and European
standards aimed to promote the health and safety at work of pregnant
employees, employees who have recently given birth or who are
breastfeeding. While Community law sets out “minimum” standards and is
binding on Member States as regards the results to be achieved (the
protection of pregnant employees), national authorities have discretion
to decide on the best way to ensure such protection.
The Constitutional Court therefore held that if the purpose of
national standards is to exceed those of Community law, according to the
wording of article 55.5 b) of the SW, national courts cannot take a
restrictive stance and require an employer to be aware of the pregnancy
of an employee in order to declare the dismissal void.
Accordingly, for cases in which the dismissal is not declared fair,
the SC changed its approach and held that the dismissal of pregnant
employees may be null regardless of whether or not the employer was
aware of the pregnancy.
11. Employees may request
for constructive dismissal based on continued delay in payment of
salaries, even if the company is involved in insolvency proceedings
Decision of the Labour Chamber of the Supreme Court dated 22
December 2008
The SC rejected the decision of the High Court of Justice of
Catalonia and confirmed the “objective” approach in establishing the
requirements for the termination of employment contracts under article
50 of the SW -constructive dismissal-. The SC held that an employer’s
intentional breach is not essential for an employee to be entitled to
terminate his/her employment contract. According to the SC, “the fact
that the continued failure or delay in the payment of salaries is caused
by the company’s negative economic situation is irrelevant”.
In this case, regardless of the fact that the company was involved in
insolvency proceedings, there were objective delays in the payment of
the employee’s salaries which were sufficiently serious to constitute a
reason for the termination of the employment contract pursuant to
article 50.1 b) of the SW. These delays were recurring, persistent over
time and quantitatively significant.
Following established case law on the “objective” analysis of
business failure, the SC held that economic difficulties (in this case,
the insolvency situation) do not constitute a reason to alter the
consequences of a duly evidenced lack of payment. Therefore, the
employee is entitled to request the termination of the employment
contract and compensation for unfair dismissal, which amounts to 45 days
of salary per year of employment with a maximum limit of 42 months.
12. An employer cannot
unilaterally waive a non-compete agreement
Decision of the Labour Chamber of the Supreme Court dated 15
January 2009
This decision examined the requirements that a non-compete agreement
must include (effective business interest, time limits and adequate
compensation), which combines a dual interest for the parties. On the
part of the employer, the employee refrains from using knowledge
acquired during his/her time in the company. The employee benefits from
the economic stability upon termination of the employment contract,
avoiding the need to find a new job immediately. According to the SC,
this gives rise to a bilateral and reciprocal obligation, for which
compliance is not discretional for either party.
Accordingly, the SC stated that “the agreement whereby the company
unilaterally waived the non-compete obligation was contrary to the
principle of legal bilateral transactions, which produce rights and
obligations for both parties”.
Therefore, the SC held that the employer’s stance was not legitimate,
thus declaring the clause through which the company could waive its
obligation null while upholding the validity of the rest of the terms
and conditions of the non-compete agreement.
13. The applicable
collective bargaining agreement of a company that carries out various
activities is determined by the actual and prevailing activity
Decision of the Labour Chamber of the Supreme Court dated 20
January 2009
The SC stated that determining the collective bargaining agreement
applicable to a company does not depend on its corporate purpose. On the
contrary, it must be determined in view of the actual services provided
by its employees. A broad corporate purpose could fall under the scope
of application of various collective agreements; however, if the legal
object were used as a basis to decide the application of one or another
collective bargaining agreement, the employer would have discretion to
choose whatever agreement by merely changing the corporate purpose
registered with the commercial registry.
Another issue arises when a company carries out two or more different
activities. The corresponding solution is to determine the company’s
main and prevailing activity, as it is that activity which will
determine the applicable collective bargaining agreement.
14. Employees hired through
temporary employment agencies should receive the same remuneration as
the employees of the user company
Decision of the Labour Chamber of the Supreme Court dated 22
January 2009
The SC held that employees hired through a temporary employment
agency are entitled to receive the same remuneration as employees of the
user company under the same terms and conditions.
The remuneration actually received by the employees of the user
company must be established in view of what was agreed in both the
collective bargaining agreement and the particular corporate collective
agreements between the employer and its employees.
Consequently, article 11 of Law 14/1994 of 1 June on temporary
employment agencies "is interpreted broadly, including the various
instruments of collective bargaining, whatever their nature and
effectiveness, provided that they are, in practice, of general
application in the user company”.
This conclusion is designed to discourage the use of temporary
employment contracts as a means of reducing costs.
15. An employment contract
must remain in force in order to exercise stock options. Debate on the
applicable law
Decision of the Labour Chamber of the High Court of Justice of
Catalonia dated 19 September 2008
The High Court of Justice of Catalonia ("HCJ") analysed a case in
which the claimant demanded his right to exercise stock options granted
by his employer’s parent company, which was registered in France. The
issues under examination included the validity of the restrictive clause
establishing that the employment contract had to be in force in order to
exercise the stock options. The HCJ held that the dismissal of the
employee, which the company acknowledged as unfair, cannot undermine the
validity of such condition. Other issues raised by the defendant and
analysed by the HCJ included the jurisdiction of Spanish courts, the
competence of labour courts and the applicable law.
Regarding the jurisdiction of Spanish courts, the HCJ agreed with the
first instance court which had held that, according to the Brussels
Convention of 1968, Spanish courts have jurisdiction on the basis that
the employees regularly rendered services in Spain and that one of the
defendant companies is domiciled in Spain. This competence also derives
from article 25.1 of the Spanish Judiciary Law given that the Spanish
company for which the employee rendered his/her services is an agency of
the French company in accordance with private international law.
With regard to the second issue raised by the defendant, the HCJ
concluded that the labour courts are undoubtedly competent to hear the
case since the obligation (the exercise of stock options) resulted from
the employment contract regardless of whether or not the amount received
through the exercise of stock options is considered salary.
As regards the applicable law, the HCJ held that French and not
Spanish law was applicable in accordance with the Rome Convention given
that the granting of stock options by a French company is implicitly
subject to French law and the legal relationship resulting from this
agreement is more closely related to French law.
Following cour de cassation doctrine, the HCJ upheld the
validity of the clause establishing that the employment contract must be
in force in order to exercise stock options emphasising that, according
to such doctrine, the termination cause of the employment contract is
irrelevant.
The decision went further and stated that if this case were subject
to Spanish law, the conclusion would be the same since the matter
concerns a conditional obligation subject to a specific term. As a
result, the right to exercise stock options has two requirements: that
the date to exercise the rights arrives and that the employment contract
be in force at that time.
The HCJ was aware that the statement could be considered contrary to
established doctrine under which the termination of the contract for
reasons not attributable to the employee is not sufficient to deprive
him/her of rights arising from stock options. Therefore, it stated that
the dismissal was consensual in this case as evidenced by the settlement
agreement entered into after the dismissal and according to which the
employee accepted the termination of contract in exchange for
compensation.
16. Use of the Wage
Guarantee Fund varies depending on whether the agreement between the
employer and the employee before the administrative conciliation service
involves a salary credit or compensation
Decision of the Labour Chamber of the High Court of Justice of
Castilla-La Mancha dated 22 October 2008
The Labour Chamber of the High Court of Justice of Castilla-La Mancha
(“HCJ”) synthesised SC and ECJ case law on the use of the Wage Guarantee
Fund, making a distinction between salaries (including procedural
salaries) and compensation for dismissal. The HCJ referred to the
decision of the ECJ of 21 February 2008 and accepted the use of the Wage
Guarantee Fund for salaries agreed before the administrative
conciliation service on the basis that such amounts can be determined
according to objective grounds.
However, the approach differs for severance payments given the
necessity of judicial intervention in view of the different nature of
such compensation, which cannot be considered as “salary”. Regarding
compensation, the ECJ stated that, when agreed before an administrative
conciliation service, absence of abuse cannot be sufficiently guaranteed
as opposed to when such amounts are established by courts. Such abuses
do not occur in out of court settlements determining procedural
salaries, as they are calculated on the basis of objective criteria.
Therefore, there is no discrepancy between Spanish and Community law
regarding the different use of the Wage Guarantee Fund for compensation
and salaries. On that basis, there is no violation of the principle of
equal treatment established in article 14 of the Spanish Constitution as
it refers to the law as a whole and does not prevent domestic
legislation from distinguishing between different scenarios and dealing
with them differently.
17. Personal data
protection. Providing inaccurate information to the Social Security
constitutes a breach of personal data protection regulations
Decision of the Spanish Data Protection Agency R/01355/2008 dated
13 October 2008
On 13 October 2008, the Spanish Data Protection Agency (“SDPA”)
issued a decision on a case in which a company hired a worker after the
recruitment process but who nevertheless failed to report to work on the
first day of employment without explanation. The company had already
informed the SS of his recruitment through the RED System
but subsequently failed to inform the SS of the change in the situation
for two months. The worker in question filed a complaint before the SDPA
when the Servicio Público de Empleo Estatal (Spanish employment
service, SPEE) refused to grant him unemployment benefits on the basis
that, according to the organisation’s records, the individual was
employed.
Pursuant to article 4 of the Law on Personal Data Protection (“LPDP”),
which establishes that all files containing personal data must be
accurate and reflect the current situation of those affected at all
times, the SDPA held as follows: “as the company failed to timely inform
the SS of the mistake, it is liable for providing incorrect personal
information to the SS, which was not immediately amended”.
According to the SDPA, this constitutes a breach of the principle of
data quality, as the company knew of this factual error and did nothing
to rectify it for almost two months in breach of articles 4.3 and 4 of
the LPDP. Good faith is irrelevant in this particular case given that
Royal Decree 84/1996 of 26 January, which approves the General
Regulation on the registration of companies and membership, hiring,
firing and changes in employee data before the SS provides that
“termination of employment relationships and data variations must be
notified within six calendar days from the termination or within the
same term as from the day after the data variation occurs”.
Consequently, according to National Court of Justice and SC case law
and doctrine, LPDP governs a very delicate issue that requires special
care and diligence by entities responsible for managing data, which must
keep such data up to date in accordance with the principle of data
quality established in article 4 of the LPDP.
The SDPA imposed a fine on the company for EUR 3,000 in accordance
with article 45.5 of the LPDP since, despite the existence of
circumstances mitigating the company’s responsibility, such
circumstances did not totally exempt the company from liability arising
from the provision of incorrect data which was not amended for an
extended period of time.
