B2B e-commerce, when companies can be considered consumers in Spain
Normally, individuals are considered consumers, but this is not always the case, as some legal entities – mainly companies and professionals – can also be considered as such in certain situations. This is a relevant fact because in this case, the buying company will be granted the rights that the current law reserves solely for consumers.
What is the legislation applicable to consumers?
We will analyze what is established in Royal Legislative Decree 1/2007, of November 16, which approves the revised text of the General Law for the Defense of Consumers and Users and other complementary laws (LGDCU). This is the current legislation that regulates consumer rights and that in some cases will also apply if the buyer is a company or professional. Among the most common rights in electronic commerce is the right of withdrawal, which we addressed in this post.
First, we must be clear about what is understood by an entrepreneur. The definition is found in Article 4 of the LGDCU, which establishes the following: “any natural or legal person, whether private or public, who acts directly or through another person on their behalf or following instructions, with a purpose related to their commercial, business, trade, or profession activity.”
Once we understand what an entrepreneur is, Article 3.1 of the LGDCU addresses the concept of consumers:
- A consumer is considered to be a natural person who acts for purposes outside their commercial, business, trade, or professional activity.
- Legal persons and entities without legal personality that act without profit motive in an area outside a commercial or business activity.
It is in the second case where doubts often arise, and it is because for a legal entity (entrepreneur) to be considered a consumer, it must meet 3 requirements:
a) Be a legal entity.
b) Act in an area outside of business or commercial.
c) Do so without profit motive (cannot obtain economic benefit).
If these 3 requirements are met, the entrepreneur will be considered a consumer and will benefit from the provisions of the General Law for the Defense of Consumers and Users.
In conclusion, we should not base ourselves on whether the buyer is a natural or legal person, but analyze why they want the product or service they have purchased, since not everything that a legal entity acquires is intended for its business or professional activity. Analyzing this point correctly will be crucial in determining whether companies or professionals have consumer status.
Let’s see some examples:
a) An entrepreneur who sells cosmetics and hires painters to paint their offices, in this case, the painting does not have a direct relationship with his commercial activity, so the entrepreneur will be considered a consumer.
b) A natural person who frequently buys real estate to resell them, the courts consider that when the activity is carried out frequently, even if this person is not registered as self-employed or it is not stated that they carry out a commercial activity, it is considered a professional or business activity, so they will not be considered consumers.
Author: Mariona Heredia, Lawyer.
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