Current Legislation Coordinator: Rosana Hallett Of counsel at Gómez-Acebo & Pombo - Gómez-Acebo & Pombo
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No . 342021
Current
Legislation
Coordinator:
:
Rosana Hallett
Of counsel at Gómez-Acebo & Pombo© Gómez-Acebo & Pombo Abogados, 2021 All rights reserved. Disclaimer: This digest is provided for general information purposes only and nothing expressed herein should be construed as legal advice or recommendation. Design: José Á. Rodríguez Ángela Brea, and layout Rosana Sancho Muñoz Translation and adaptation: John Woodger Current Legislation No . 34 | 2021 2
Contents I. Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. Agri-food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. Data protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 IV. Commercial companies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 V. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 VI. Accounting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 VII. Real Estate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 VIII. Insolvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 IX. Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 X. Advertising - Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 XI. Audiovisual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 XII. Energy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 XIII. Railway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 XIV. Foreign investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 XV. International litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 We do not assess the numerous rules and regulations published as a result of the situation caused by the coronavirus (COVID-19) as this would entail an unusual length for this digest. In any case, you can access all our comments on these rules and regulations on our website at the following link: www.ga-p.com. Current Legislation No . 34 | 2021 3
I. Environment
In this area we consider the following to be of interest:
1. Royal Decree 1089/2020, of 9 December, implementing aspects relating to the adjustment
of the free allocation of greenhouse gas emission rights in the period 2021-20301. This piece
of legislation determines the aspects relating to the adjustment of the annual free allocation,
for the period 2021-2030, of greenhouse gas emission allowances for fixed facilities located
in Spain that are subject to the European Union emissions trading scheme. It also details the
information obligations of the operators of these facilities and regulates the applications
for free allocation of emission allowances by the operators of facilities that are considered
new entrants.
2. The National Plan of Adaptation to Climate Change 2021-20302. Its objective is to pro-
mote, from a cross-cutting perspective and at various territorial scales, coordinated and coher-
ent action by different actors in the face of the risks and threats posed by climate change in
the different spheres of society.
3. The Long-Term Decarbonisation Strategy3 (ELP 2050) With a view to achieving an economy
with zero net greenhouse gas emissions (climate neutrality) by 2050, it organises the transition
towards a more socially just and inclusive economy. The vector for sustaining this drive is tech-
nical-scientific knowledge, which will be applied to modernise and make the Spanish economy
more competitive on the basis of technological neutrality. Finally, it analyses the adaptation
to climate change which will have to be implemented in the sectors considered preferential
in the process of ecological transition: energy, transport, construction, industry, waste and
agri-food.
Ignacio Álvarez Serrano and Paloma Tuñón Matienzo
II. Agri-food
On this occasion, we highlight Royal Decree 1086/2020, of 9 December, regulating and relax-
ing certain conditions for the application of European Union provisions on the hygiene of
production and marketing of foodstuffs and regulating activities excluded from its scope4.
1
Real Decreto 1089/2020, de 9 de diciembre, por el que se desarrollan aspectos relativos al ajuste de la
asignación gratuita de derechos de emisión de gases de efecto invernadero en el periodo 2021-2030.
2
Plan Nacional de Adaptación al Cambio Climático 2021-2030.
3
Estrategia de Descarbonización a Largo Plazo.
Current Legislation No . 34 | 2021 4This piece of legislation has basically three aims: 1) to make more flexible, in relation to certain
establishments and products, the requirements set out in European Union legislation on the hy-
giene of production and marketing of foodstuffs (the so-called hygiene package); 2) to regulate
the activities excluded from the scope of the hygiene package, and 3) to establish measures
that contribute to the correct application in Spain of Regulation (EC) No 178/20025, the hy-
giene package and Regulation (EC) No 999/20016.
Royal Decree 1086/2020 is meant to contribute to the achievement of the objectives set out in
the 2030 Sustainable Development Agenda and follows the NAOS health strategy of the Span-
ish Agency for Food Safety and Nutrition.
José Luis Palma Fernández and Yago Fernández Darna
III. Data protection
In this area we consider the following to be noteworthy:
1. On 2 September, the European Data Protection Committee approved the Guidelines 8/2020
on the targeting of social media users, available at this link: https://edpb.europa.eu/sites/
edpb/files/consultation/edpb_guidelines_202008_onthetargetingofsocialmediausers_en.pdf.
The guide pays attention to the risks generated by social networks in relation to personal data,
to the different actors who intervene in the networks and in the processing of data, to the
different targeting techniques and to the main legal problems that are generated.
2. The Spanish Data Protection Agency has published a new version of the Guide to the use
of cookies7, which can be viewed at the following link: https://www.aepd.es/sites/default/
files/2020-07/guia-cookies.pdf. This new version incorporates the changes approved by the
European Data Protection Committee in its “Guidelines 05/2020 on consent under Regulation
2016/679”, according to which consent is not valid if access to a website is conditioned on ac-
cepting non-essential cookies and the user’s actions, such as scrolling and sliding his or her fin-
ger on a web page, do not satisfy the requirements for valid consent.
Ángel García Vidal
4
Real Decreto 1086/2020, de 9 de diciembre, por el que se regulan y flexibilizan determinadas condiciones de
aplicación de las disposiciones de la Unión Europea en materia de higiene de la producción y comercialización
de los productos alimenticios y se regulan actividades excluidas de su ámbito de aplicación.
5
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying
down the general principles and requirements of food law, establishing the European Food Safety Authority
and laying down procedures in matters of food safety.
6
Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down
rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies.
7
Guía sobre el uso de las cookies.
Current Legislation No . 34 | 2021 5IV. Commercial companies
In this regard, Royal Decree-law 34/2020, of 17 November, on urgent measures to support busi-
ness solvency and the energy sector, as well as on tax matters8, which extends the duration of
some of the extraordinary measures regulated in Articles 40 and 41 of Royal Decree-law 8/2020 of
17 March, applicable to legal persons governed by private law. Specifically, Article 3 provides that
companies limited by shares that have not been able to amend their articles of association may,
exceptionally, hold their general meetings by electronic means during 2021. In particular:
― In the case of public limited companies, the Board of Directors may provide, in the notice of the
General Meeting, for attendance by telematic means and for remote voting under the terms
provided in Articles 182 and 189 of the Companies Act (for unlisted public limited companies)
and in Article 521 of the same legal text (in the case of listed public limited companies). In re-
lation to the latter, the meeting may be held anywhere in Spain.
― In the case of private limited companies and limited partnerships with share capital, they may
hold the general meeting by video conference or by multiple telephone conference provided
that all persons entitled to attend or those representing them have the necessary means to do
so and that the secretary of the body recognises their identity and states so in the minutes,
which shall be sent immediately to the e-mail addresses.
Inés Fontes Migallón
V. Taxes
We would like to highlight the adoption of the following in the field of taxation:
1. The Convention between the Kingdom of Spain and the Republic of Azerbaijan on the avoid-
ance of double taxation and the prevention of tax evasion in respect of taxes on income
and wealth and its Protocol, done in Baku on 23 April 20149; the Convention between the
Kingdom of Spain and the Republic of Cape Verde on the avoidance of double taxation and
the prevention of tax evasion in respect of taxes on income and its Protocol, done in Madrid
on 5 June 201710; and the Convention between the Kingdom of Spain and Romania on the
8
Real Decreto Ley 34/2020, de 17 de noviembre, de medidas urgentes de apoyo a la solvencia empresarial y
al sector energético, y en materia tributaria.
9
Convenio entre el Reino de España y la República de Azerbaiyán para evitar la doble imposición y prevenir
la evasión fiscal en materia de impuestos sobre la renta y sobre el patrimonio y su Protocolo, hecho en Bakú
el 23 de abril del 2014.
Current Legislation No . 34 | 2021 6elimination of double taxation in relation to taxes on income and the prevention of tax eva-
sion and avoidance, and its Protocol, done in Bucharest on 18 October 201711.
2. The aforementioned Royal Decree-law 34/2020, of 17 November, on urgent measures to sup-
port business solvency and the energy sector, as well as on tax matters, which also includes
some noteworthy tax measures such as the following:
a) In the field of value-added tax, the rate of 0% is maintained, with effect from 1 November
2020 and until 30 April 2021, for supplies, imports and intra-Community acquisitions of
certain goods necessary to combat COVID-19 where the recipients are entities governed by
public law, and a rate of 4% is set for supplies, imports and intra-Community acquisitions
of disposable surgical masks.
b) As regards corporate income tax, the scope of the deduction for investment in foreign pro-
ductions of feature films or audiovisual works is extended and certain tax incentives are
provided for in the automobile sector.
3. The Financial Transactions Tax Act 5/2020 of 15 October12, which incorporates a tax on the
acquisition for valuable consideration of shares represented by securities or by book entries,
provided that the following conditions are met:
a) that the company’s shares are admitted to trading on a regulated market;
b) that the stock market capitalisation value of the company exceeds one billion euros on 1
December of the year prior to the acquisition. This tax is due when the securities are entered
in the register; the taxable amount is the amount of the consideration paid, excluding costs
associated with the transaction.
4. The Tax on Certain Digital Services Act 4/2020 of 15 October13, by virtue of which this tax is
introduced on the provision of digital services in which there is intervention by users located in
Spanish territory, including the Historical Territories of the Basque Country and Navarre. This
tax will be due when the taxable transactions are provided, executed or carried out and the tax
base will be the amount of the revenue, excluding - where applicable - value added tax or other
equivalent taxes.
10
Convenio entre el Reino de España y la República de Cabo Verde para evitar la doble imposición y prevenir
la evasión fiscal en materia de impuestos sobre la renta y su Protocolo, hecho en Madrid el 5 de junio del
2017.
11
Convenio entre el Reino de España y Rumanía para eliminar la doble imposición en relación con los impuestos
sobre la renta y prevenir la evasión y elusión fiscales y su Protocolo, hecho en Bucarest el 18 de octubre del
2017.
12
Ley 5/2020, de 15 de octubre, del Impuesto sobre las Transacciones Financieras.
13
Ley 4/2020, de 15 de octubre, del Impuesto sobre Determinados Servicios Digitales.
Current Legislation No . 34 | 2021 75. In the Historical Territory of Gipuzkoa, we would like to highlight Foral14 Act 3/2020, of 6 No-
vember, laying down the obligation to use technological tools to prevent tax fraud15. This
piece of legislation sets out a series of obligations derived from the implementation of a new
computer system called TicketBAI whose main objective is to ensure the integrity, conservation,
traceability, inviolability and transmission of the files that document the delivery of goods and
services.
6. In the Historical Territory of Araba-Álava, Foral Decree 35/2020, of 3 November, approving the
implementation of new information obligations on cross-border tax planning mechanisms16.
This decree implements the obligation to provide information on certain planning mechanisms
for persons or entities considered as tax intermediaries, who are required to inform the tax au-
thorities of certain cross-border mechanisms.
7. The following rules are relevant at the European Union level: Commission Decision (EU)
2020/1573 of 28 October 2020 amending Decision (EU) 2020/491 on relief from import du-
ties and VAT exemption on importation granted for goods needed to combat the effects of
the COVID-19 outbreak during 2020, which amends Articles 2 and 3 of Decision (EU) 2020/491
concerning the periods of validity of the Decision and confirms the request for an extension of
the Member States’ relief and the United Kingdom’s extension until the end of the transitiory
period; Council Decision (EU) 2020/1792 of 16 November 2020 on the AIEM tax applicable
in the Canary Islands, authorising the Spanish authorities to apply, until 31 December 2027,
total exemptions or partial reductions of the “arbitrio” for goods manufactured locally in the
Canary Islands, as listed in Annex I; and Council Regulation (EU) 2020/1785 of 16 November
2020 opening and providing for the administration of autonomous Union tariff quotas for
imports of certain fishery products into the Canary Islands from 2021 to 2027, by which the
Common Customs Tariff duties applicable to imports into the Canary Islands of certain fishery
products are suspended in full.
Enrique Santos Fresco and Paloma Galán González
14
Translator’s note: “Foral” is the generic name used in Spain for all the institutions of the autonomous
administration and legal systems of the former Kingdom of Navarre and the former seigniories of Araba-
Alava, Gipuzkoa and Biscay, constituting Navarre and the Basque Country, respectively, which, for various
historical vicissitudes, have been maintained.
15
Norma Foral 3/2020, de 6 de noviembre, por la que se establece la obligación de utilizar herramientas
tecnológicas para evitar el fraude fiscal.
16
Decreto Foral 35/2020, de 3 de noviembre, del Territorio Histórico de Álava, del Consejo de Gobierno
Foral, por el que se aprueba el desarrollo de nuevas obligaciones de información sobre los mecanismos
transfronterizos de planificación fiscal.
Current Legislation No . 34 | 2021 8VI. Accounting
The following legislation and decisions of particular significance in the accounting field have been
adopted:
1. At the national level, we highlight a series of decisions published on 27 October by the Span-
ish Office for Accounting and Auditing with an impact on the field of auditing. Specifically:
a) the Decision publishing the Technical Standards for Auditing for the preparation of the
report supplementing the audit of the annual accounts of credit institutions and financial
credit establishments17; b) the Decision approving the auditor’s performance in relation to
the financial statements presented in the European Single Electronic Format (ESEF), and the
amendment of ISA-ES 700 (revised) “Forming the opinion and issuing the audit report on the
financial statements”18, and c) the Decision publishing the Technical Standards for Auditing,
resulting from the adaptation of the International Standards on Auditing for their applica-
tion in Spain, “Auditing accounting estimates and related disclosures”, ISA-ES 540 (revised),
and the modification of the Technical standard for auditing “The auditor’s responsibilities
relating to other information”, ISA-ES 720 (revised)19.
2. At the EU level, Commission Regulation (EU) 2020/1434 of 9 October 2020 amending Regu-
lation (EC) No 1126/2008 adopting certain international accounting standards in accord-
ance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council as
regards International Financial Reporting Standard 16 has been approved. This regulation
amends International Financial Reporting Standard No. 16 on Leases by adding two new par-
agraphs to “Subsequent measurement - lease modifications”, a new paragraph to “Disclosure”
and three new paragraphs to Appendix C “Effective date and transition”.
Enrique Santos Fresco and Paloma Galán González
17
Resolución por la que se publica la Norma Técnica de Auditoría de elaboración del informe complementario
al de auditoría de cuentas anuales de las entidades de crédito y de los establecimientos financieros de
crédito.
18
Resolución por la que se aprueba la actuación del auditor en relación con los estados financieros presentados
en el Formato Electrónico Único Europeo (FEUE), y la modificación de la NIA-ES 700 (revisada) «Formación
de la opinión y emisión del informe de auditoría sobre los estados financieros».
19
Resolución por la que publica la Norma Técnica de Auditoría, resultado de la adaptación de las Normas
Internacionales de Auditoría para su aplicación en España, «Auditoría de estimaciones contables y de la
correspondiente información a revelar», NIA-ES 540 (revisada), y la modificación de la norma Técnica de
Auditoría «Responsabilidades del auditor con respecto a otra información», NIA-ES 720 (revisada).
Current Legislation No . 34 | 2021 9VII. Real Estate
During this last quarter, it is worth highlighting an act of parliament and two decree-laws
passed in Catalonia that affect housing and leases:
1. Act 11/2020, of 18 September, on urgent measures to contain rents in housing leases and
amending Act 18/2007, Act 24/2015 and Act 4/2016, concerning the protection of the right
to housing20; was drafted with the aim of limiting rents in those leases in which the rented hous-
ing is located in an area of Catalonia declared ‘tense housing market’ (a concept defined by the
statute itself ) and is used as the permanent residence of the tenant. Contracts signed before 1
January 1995, contracts for social housing, integration, social rentals, social policies, welfare
and compulsory social rentals are excluded.
2. Decree-law 34/2020, of 20 October, on urgent measures to support economic activity in rent-
ed business premises21. This decree-law imposes a series of measures on leases concluded from
1 April 1995 on premises intended for industrial or commercial activities which have been af-
fected by the suspensions and limitations adopted by the public authorities in response to the
COVID-19 pandemic. The purpose of these measures is, according to the wording of this legisla-
tion, to protect the economic fabric and to increase legal certainty, thus alleviating the burden
of contractual obligations.
3. Decree-law 37/2020, of 3 November, on strengthening the protection of the right to hous-
ing in the face of the effects of the COVID-19 pandemic22, which partially modifies the first
additional provision and adds a new third additional provision in the Housing Emergency
and Energy Poverty (Urgent Measures) Act 24/2015 of 29 July. According to the explana-
tory notes thereto, it is intended to reinforce the protection of the most vulnerable groups
against possible evictions while the ‘state of alarm’ lasts or any other restriction of mobility
for health reasons is in force. In this way, the evictions of people at risk of residential exclu-
sion will be explicitly suspended until the large holder or financial institution that owns the
housing offers the social rent to which it is obliged. The decree-law does not affect tenants
of flats owned by small holders.
Marina Martínez Plaza
20
Ley 11/2020, de 18 de septiembre, de medidas urgentes en materia de contención de rentas en los contratos
de arrendamiento de vivienda y de modificación de la Ley 18/2007, de la Ley 24/2015 y de la Ley 4/2016,
relativas a la protección del derecho a la vivienda.
21
Decreto Ley 34/2020, del 20 de octubre, de medidas urgentes de apoyo a la actividad económica desarrollada
en locales de negocio arrendados.
22
Decreto Ley 37/2020, de 3 de noviembre, de refuerzo de la protección del derecho a la vivienda ante los
efectos de la pandemia de la COVID-19.
Current Legislation No . 34 | 2021 10VIII. Insolvency
We would like to highlight the following legislation in the field of insolvency:
1. The Procedural and Organisational Measures to deal with COVID-19 (Administration of
Justice) Act 3/2020 of 18 September23, which repeals Royal Decree-law 16/2020, of 28 April,
on procedural and organisational measures to deal with COVID-19 in the field of the Adminis-
tration of Justice.
2. Royal Decree-law 34/2020, of 17 November, on urgent measures to support business solvency
and the energy sector, as well as on tax matters, which also extends some of the deadlines set
out above. In particular, the following:
― Until 19 November 2020 inclusive, applications for a declaration of non-performance of the
agreement submitted by creditors after 31 October 2020 and accepted for processing will
be suspended for a period of three months from the date of suspension to allow the debtor
to submit a proposal to amend the agreement.
― Up to and including 31 January 2021, the judges will notify the debtor of any applications
by creditors for a declaration of non-fulfilment of the refinancing arrangement, but will not
identify them as suitable for consideration until one month has elapsed. The debtor may
then inform that negotiations with creditors are under way to alter the arrangement or
conclude a new one. If the debtor has not reached a modification agreement within three
months of notification to the court, the judge will identify creditors’ applications for a dec-
laration of non-fulfilment as suitable for consideration. In addition, creditors’ applications
for a declaration of non-fulfilment of the arrangement will also be served on the debtor,
but will not be identified as suitable for consideration until three months have elapsed be-
fore the debtor has the opportunity to submit a proposal for the amendment of the com-
position.
― The deadline for exemption from the duty to petition insolvency proceedings is extended
to 14 March 2021 inclusive, as is the deadline for judges to not identify as suitable for con-
sideration petitions for insolvency proceedings filed by creditors as of the declaration of
the ‘state of alarm’.
Rodrigo López González
23
Ley 3/2020, de 18 de septiembre, de medidas procesales y organizativas para hacer frente al COVID-19 en el
ámbito de la Administración de Justicia.
Current Legislation No . 34 | 2021 11IX. Employment
In the area of employment, we believe that we should focus our interest on the following legislation:
1. At the end of September, the temporary collective redundancy procedures that had kept the
employment contracts suspended during the first ‘state of alarm’ were no longer in effect. Royal
Decree-law 30/2020, of 29 September, on social measures for the protection of jobs24, will
serve to extend a large number of these cases, especially those arising from force majeure, until
31 January 2021 and to implement some of the new cases.
Some previously applied rules are maintained. For example, the prohibition of the use of force
majeure and the economic, technical, organisational and production reasons for the suspen-
sion of contracts and the reduction of working hours as justification for the termination of an
employment contract or dismissal. Or the suspension of temporary contracts, implying the in-
terruption of the calculation of both the duration of these contracts and the reference periods
equivalent to the suspended period. Access to the training initiatives of the vocational training
system for employment is also guaranteed to those who are included in a temporary collective
redundancy procedure. In the same way, no overtime, new outsourcing of activities or new di-
rect or indirect recruitment may be carried out during the conduct of such procedures, and the
employment safeguard clause, which obliges to maintain such employment for a period of six
months, remains in force. Furthermore, the limits for conducting temporary collective redundan-
cy procedures by companies with tax domicile in countries or territories classified as tax havens
and the impossibility of distributing dividends to companies that benefit from the aid derived
from such procedures remain in force. Finally, Royal Decree-law 30/2020 also establishes a se-
ries of measures to protect the self-employed, in particular in relation to the provision of the
cessation-of-activity benefit.
2. Royal Decree-law 28/2020, of 22 September, on remote working25. This piece of legislation
establishes a regulation of remote work, including teleworking, and implements employment
rights and business obligations in a weighting, among others, of the required performance and
ensured privacy. Voluntariness is a determining feature of this regulation and requires the sign-
ing of an express agreement - which may form part of the initial contract or be concluded at a
later date - with a legally established minimum obligatory content. To this end, the company is
obliged to provide adequate maintenance of resources, equipment and tools necessary for the
carrying out of the activity, in accordance with the inventory incorporated in the signed agree-
ment. Likewise, precise attention is guaranteed in the event of technical difficulties, especially
for teleworking, and the possibility of specifying the compensation or payment of expenses aris-
ing from this relationship is established. There is a right to digital disconnection outside working
24
Real Decreto Ley 30/2020, de 29 de septiembre, de medidas sociales en defensa del empleo.
25
Real Decreto Ley 28/2020, de 22 de septiembre, de trabajo a distancia.
Current Legislation No . 34 | 2021 12hours, adequate protection is guaranteed in terms of health and safety at work, and protection
of the right to privacy and data protection is confirmed. In the same sense, Royal Decree-law
29/2020, of 29 September26, regulates teleworking in the area of Public Administrations.
3. Two pieces of legislation implement business obligations with the intention of achieving ef-
fective equality between men and women in the workplace. On the one hand, Royal Decree
901/2020, of 13 October, regulating equality plans and their registration27, and, on the other,
Royal Decree 902/2020, of 13 October, on equal pay for women and men28.
As for the first one, the applicable rules are specified in order to determine the calculation of
the workforce that represents the threshold that obliges the adoption of an equality plan in the
company. Once this threshold has been reached, the obligation to negotiate, draw up and im-
plement the equality plan will arise and a negotiating committee will be set up for this purpose
with the powers expressly set out in the decree. A diagnosis aimed at identifying and estimat-
ing the magnitude, through quantitative and qualitative indicators, of the inequalities, differ-
ences, disadvantages, difficulties and obstacles, existing or which may exist in the company, will
be decisive in order to achieve effective equality between women and men. This diagnosis will
make it possible to obtain the precise information to design and establish the evaluable meas-
ures to be adopted, the priority in their application and the criteria necessary to evaluate their
fulfilment. On the other hand, the equality plan, with a maximum validity of four years, must
respond to a specific structure and must respect a content in the terms established in the decree.
In order to be effective, the “Equality in the company” label will continue to be awarded and, as
a novelty, it will be required to be registered in a public register.
As regards the second of these pieces of legislation, it imposes an obligation of transparency in
remuneration within the company. To that end, it specifies the concept of ‘work of equal value’
based on criteria of suitability, completeness and objectivity and states that such transparency
in remuneration makes it possible to obtain sufficient and meaningful information on the value
attributed to the remuneration of women and men and to its various components. In order to
achieve this, all companies must have a remuneration register for all their staff which includes
the average values of salaries, salary supplements and non-salary payments to the staff broken
down by sex and distributed in accordance with the provisions of the decree. This action plan
must contain a system for monitoring and implementing improvements based on the results
obtained.
4. Other pieces of legislation have also adopted employment initiatives of interest, among which
three stand out: Order ISM/888/2020, of 22 September, regulating the method of payment of
26
Real Decreto Ley 29/2020 de 29 de septiembre.
27
Real Decreto 901/2020, de 13 de octubre, por el que se regulan los planes de igualdad y su registro.
28
Real Decreto 902/2020, de 13 de octubre, de igualdad retributiva entre mujeres y hombres.
Current Legislation No . 34 | 2021 13Social Security contributions on account and for joint collection29; the Decision of 26 Octo-
ber 2020, containing the Decision of the Cabinet of 20 October 2020 approving the Annual
Employment Policy Plan for 202030; and the Decision of the Directorate-General for Employ-
ment, of 28 October 2020, publishing the list of bank holidays for 202131.
Lourdes López Cumbre
X. Advertising - Internet
The Spanish Association of Advertisers (AEA) and the Advertising Standards Association (Auto-
control) have signed an agreement with the State Secretariat for Telecommunication and Digital
Infrastructure, the State Secretariat for Digitalisation and Digital Intelligence and the Secretari-
at-General of the Ministry of Consumer Affairs on the approval and application of the Code on the
use of influencers in advertising32.
The code is primarily concerned with making advertising through influencers recognisable as such.
To this end, it is clarified when advertising is understood to exist. Thus, point 3 of the code indicates
that “for the purposes of this code, advertising mentions or content will be considered to be all
those mentions or content -graphic, audio or visual- that cumulatively: a. are aimed at the promo-
tion of products or services; b. are disseminated within the framework of reciprocal collaborations
or commitments, with the dissemination of the aforementioned content being the subject matter
of a payment or other consideration by the advertiser or its representatives; c. the advertiser or
its agents exercise editorial control over the disseminated content (previously establishing all or
part of it and/or validating it). On the other hand, they will not be considered as advertisers and,
therefore, this code will not be applicable to contents that are of a purely editorial nature, nor to
contents disseminated by influencers that respond to their own exclusive initiative, without any re-
lationship with the advertising company or its agents”. And it is also clarified - in paragraph 4 - that
“the following, among others, shall be considered consideration: direct payment (or indirect pay-
ment through agencies), free delivery of a product, free tickets to events, free provision of a service,
gift vouchers, gift bags and travel”. Similarly, the Code pays particular attention to the obligation
to identify the advertising nature of messages.
Ángel García Vidal
29
Orden ISM/888/2020, de 22 de septiembre, por la que se regula la modalidad de pago a cuenta de las cuotas
de la Seguridad Social y por conceptos de recaudación conjunta.
30
Resolución de 26 de octubre del 2020, por la que se recoge el Acuerdo de Consejo de Ministros del 20 de
octubre del 2020, por el que se aprueba el Plan Anual de Política de Empleo para el 2020.
31
Resolución de 28 de octubre del 2020, de la Dirección General de Trabajo, por la que se publica la relación
de fiestas laborales para el año 2021.
32
Código sobre el uso de influencers en la publicidad.
Current Legislation No . 34 | 2021 14XI. Audiovisual
We consider the following o be of particular interest in relation to this sector:
1. Royal Decree 1090/2020, of 9 December, amending Royal Decree 1084/2015, of 4 Decem-
ber, implementing the Cinema Act 55/2007 of 28 December33. Among other new features, it
is worth highlighting the relaxation of the approval regime for international co-productions in
general and for financial co-productions in particular. Specifically, the percentage of non-EU or
non-production country personnel admitted to co-productions has been increased and financial
co-productions may be approved once shooting has begun. In addition, the public aid available
to so-called difficult audiovisual works is extended.
2. Although it does not strictly speaking belong to the audiovisual sector, as it is related to com-
munication and the right to information, we believe that we should at least cite here Order
PCM/1030/2020, of 30 October, publishing the Procedure for action against disinformation
approved by the National Security Council34. The order lacks any articles and merely includes
as an “annex” the Procedure for action against disinformation approved by the National Se-
curity Council at its meeting on 6 October 2020. This procedure establishes the Standing Com-
mittee against Disinformation, whose purpose is to ensure interministerial coordination at an
operational level in the field of disinformation.
Ana Isabel Mendoza Losana
XII. Energy
In the last quarter of 2020, in the energy sector, the following are particularly noteworthy:
1. The Commission Implementing Regulation (EU) 2020/1294 of 15 September 2020 on the Un-
ion renewable energy financing mechanism. In the interest of ensuring that at least 32% of
the energy produced in the European Union in 2030 is from renewable sources, this regulation
implements Article 33 of Regulation (EU) 2018/1999 of the European Parliament and of the
Council of 11 December 2018 on the Governance of the Energy Union and Climate Action. It
provides for a financing mechanism for renewable energy facilities with the dual objective of
33
Real Decreto 1090/2020, de 9 de diciembre, por el que se modifica el Real Decreto 1084/2015, de 4 de
diciembre, por el que se desarrolla la Ley 55/2007, de 28 de diciembre, del Cine.
34
Orden PCM/1030/2020, de 30 de octubre, por la que se publica el Procedimiento de actuación contra la
desinformación aprobado por el Consejo de Seguridad Nacional.
Current Legislation No . 34 | 2021 15encouraging their development throughout the Union and balancing out any gaps in the pro-
duction of energy from renewable sources that may occur between the various States. Those
States which request it when the Commission makes the relevant call will be able to benefit from
the mechanism and grant public aid. The mechanism allows both the host Member States and
the contributing States to benefit, statistically and in proportion to their contributions, from the
achievements of all participants.
2. Royal Decree 960/2020, of 3 November, regulating the financial scheme for renewable en-
ergy for electricity production facilities35. This royal decree partially transposes Directive (EU)
2018/2001 of the European Parliament and of the Council of 11 December 2018 on the pro-
motion of the use of energy from renewable sources. It regulates a remuneration framework
for renewable energy facilities that differs from the ‘specific remuneration’ (subsidy payments)
scheme and is based on an auction system. The auctioned product will be the installed capacity,
the electrical energy or a combination of both, and the supply variable, the price per unit of
electrical energy expressed in euro/MWh. The royal decree limits the maximum amount of pow-
er that may be granted to a single business group in each call (no more than 50% of the volume
of the auctioned product) and requires the determination of an auction calendar for a period of
five years. The call must set the maximum delivery period. This period will be between ten and
fifteen years - or exceptionally twenty years - for technologies with a high initial investment or a
high technological risk.
The financial scheme for renewable energy allows for the collection of revenue through the sale
of energy on the market, with the particularity that, for a given volume of energy and within a
defined time frame, the selling price of energy will be calculated on the basis of the result of
each auction. In general, the application of the financial scheme for renewable energy is not
compatible with the collection of the specific remuneration scheme provided for in Royal De-
cree 413/2014 of 6 June, nor with aid granted for the same purpose and linked to the same in-
vestment from any public administration or public or private entity, whether national, European
Union or other international bodies.
The royal decree creates an electronic register of the financial scheme for renewable energy,
which will be registered in one of the following two states: pre-allocation and operation. Regis-
tration under the operation class is essential to be able to benefit from the financial scheme for
renewable energy.
3. Order TED/1161/2020, of 4 December, regulating the first auction mechanism for the exe-
cution of the financial scheme for renewable energy and establishing the indicative calen-
dar for the period 2020-202536, implements the aforementioned Royal Decree 960/2020. The
35
Real Decreto 960/2020, de 3 de noviembre, por el que se regula el régimen económico de energías renovables
para instalaciones de producción de energía eléctrica.
36
Orden TED/1161/2020, de 4 de diciembre, por la que se regula el primer mecanismo de subasta para el
otorgamiento del régimen económico de energías renovables y se establece el calendario indicativo para el
periodo 2020-2025.
Current Legislation No . 34 | 2021 16order allows for auctions to be held for renewable facilities made up of one or more technol-
ogies. It also designs an indicative calendar for the allocation, through auctions, of the fi-
nancial scheme for renewable energies. The calendar will be updated annually and includes,
in addition to indicative deadlines, the frequency of the calls, the expected capacity and the
technologies covered.
4. The Decision of the State Secretariat for Energy, of 10 December 2020, giving notice of the
first auction for the execution of the financial scheme for renewable energy under the pro-
visions of Order TED/1161/202037. A quota of 3,000 MW of installed power is to be auctioned,
of which 1,000 MW are reserved for photovoltaic energy facilities and a further 1,000 MW for
onshore wind energy facilities. The rest may be awarded to any other type of installation.
5. The aforementioned Royal Decree-law 34/2020, of 17 November, on urgent measures to sup-
port business solvency and the energy sector, as well as on tax matters. This royal decree-law
also incorporates into our legal system the legislative changes introduced by Directive (EU)
2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive
2009/73/EC concerning common rules for the internal market in natural gas, in order to reduce
the obstacles to the full completion of the internal market in natural gas resulting from the in-
applicability of Union market rules to transmission pipelines to or from non-EU countries. In this
respect, certain transmission pipelines to or from non-EU countries (Medgaz and Maghreb-Eu-
rope) are exempted for a period of fourteen months (from 24 May 2020) from the provisions
of Articles 63(3), 63 bis, 63 ter and 70 of the Hydrocarbons Sector Act 34/1998 of 7 October
(obligations relating to the separation of activities and the obligation to provide access to
transmission networks). The following changes have been introduced into the aforementioned
Act 34/1998: the Ministry of Ecological Transition and Demographic Challenge is authorised
to grant an exemption relating to the separation of ownership between transmission activities
and the marketing or production of natural gas and the obligation of regulated and non-dis-
criminatory access to its facilities to transmission pipelines originating in non-EU countries and
completed prior to 24 May 2019, upon request by the interested party; authorises the owners
of interconnection pipelines with countries outside the European Union to adopt a model that
provides for the role of the independent operator and regulates a procedure for negotiating
natural gas transmission networks between Spain and third countries under the supervision of
the European Commission.
In addition, to compensate for the reduction in revenue from the electricity system in the con-
text of the crisis caused by COVID-19, the ceiling on transfers to the electricity system from the
proceeds of the auctioning of greenhouse gas emission allowances is increased, with limits
of 90% of the total collection and up to a maximum of one billion euros.
Ana Isabel Mendoza Losana
37
Resolución de 10 de diciembre del 2020, de la Secretaría de Estado de Energía, por la que se convoca la
primera subasta para el otorgamiento del régimen económico de energías renovables al amparo de lo
dispuesto en la Orden TED/1161/2020.
Current Legislation No . 34 | 2021 17XIII. Railway
In the railway sector, we highlight the adoption of the following:
1. Regulation (EU) 2020/1429 of the European Parliament and of the Council of 7 October
2020 establishing measures for a sustainable rail market in view of the COVID-19 outbreak.
Among other measures, the regulation enables Member States to authorise, where appropriate,
infrastructure managers to reduce, waive or defer payment of charges for the minimum access
package and access to infrastructure.
2. Royal Decree 929/2020, of 27 October, on railway operational safety and interoperability38,
which transposes into Spanish law Directive (EU) 2016/798 of the European Parliament and of
the Council of 11 May 2016 on railway safety, and Directive (EU) 2016/797 of the European Par-
liament and of the Council of 11 May 2016 on the interoperability of the rail system within the
European Union. In turn, the royal decree implements the Railway Sector Act 38/2015 of 29 Sep-
tember, regarding operational safety and the interoperability of the ‘General Interest Railway
Network’ and the various structural and functional subsystems into which the railway system is
divided. Among other matters, the royal decree identifies the responsibilities of the various ac-
tors of the railway system; determines the requirements for the issuance, renewal, modification
and restriction or revocation of safety certificates and authorisations; develops the functions
of the National Railway Safety Agency; defines the common principles for the management,
regulation and supervision of railway safety; regulates the rules applicable to railway staff con-
cerning the performance of checks for the detection of consumption of psychoactive substances
and maximum driving times and the rules for supervision and inspection of the railway sector.
Ana Isabel Mendoza Losana
XIV. Foreign investments
In the field of foreign direct investment in Spain, it is worth noting the third amendment to the
Capital Movements and Overseas Financial Transactions (Legal Regime) Act 19/2003 of 4 July,
with regard to the suspension of the liberalisation of such investments.
This amendment, which has also been addressed by the aforementioned Royal Decree-law
34/2020, of 17 November, on urgent measures to support business solvency and the energy
sector, as well as on tax matters, introduces the following changes:
38
Real Decreto 929/2020, de 27 de octubre, sobre seguridad operacional e interoperabilidad ferroviarias.
Current Legislation No . 34 | 2021 18― A transitory arrangement suspending the liberalisation of certain foreign direct invest-
ments made by residents of other European Union and European Free Trade Association
countries is established until 30 June 2021.
This means that foreign investments made by EU or European Free Trade Association resi-
dents are subject to the same authorisation rules when the investment is made (a) by com-
panies listed in Spain, meaning those whose shares are wholly or partly admitted to trading
on an official Spanish secondary market and have their registered office in Spain, or (b) by
unlisted companies, if the value of the investment exceeds ?500 million.
For the purposes of applying this transitory arrangement, a concept of foreign direct invest-
ment is introduced similar to the general one applicable to investors from third countries.
― The parameters to be considered in order to understand the existence of a control situation
are redefined, referring from now on to those resulting from Article 7(2) of the Competition
Act 15/2007 of 3 July; that is, based on terms of decisive influence.
― The scope of some of the sectors affected is specified, in particular, a) by providing, to-
gether with critical and dual-use technologies, those that are key to industrial leadership
and capacity and those developed under programmes and projects of particular interest to
Spain; b) in terms of fundamental inputs, also incorporating those relating to strategic con-
nectivity services; c) in terms of media, subjecting audiovisual media services to the rules of
their own regulatory legislation.
― Certain characteristics of the investor which determine the suspension of the investment
liberalisation are qualified, in particular, a) with regard to the public control of the investor,
redirecting again to Article 7(2) of the Competition Act, for the purpose of determining the
existence of such control; b) with regard to the exercise of criminal or illegal activities, it
is no longer required that administrative or judicial proceedings have been initiated, but
simply that there is a serious risk of such.
― Finally, implementing regulations are again allowed (a) to determine a system of exemp-
tion from authorisation for certain categories of operation or in view of their amount and
(b) to limit the definition of the sectors concerned.
Juan Ignacio Romero Sánchez
Current Legislation No . 34 | 2021 19XV. International litigation
It is worth noting the publication of Regulation (EU) 2020/1783 of the European Parliament and
of the Council of 25 November 2020 on cooperation between the courts of the Member States
in the taking of evidence in civil or commercial matters (taking of evidence) (recast)) and Regu-
lation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on
the service in the Member States of judicial and extrajudicial documents in civil or commercial
matters (service of documents) (recast).
Both will apply from 1 July 2022, and from that date they will repeal the regulations currently in
force on the same subjects. In particular, the former will repeal Regulation 1206/2021, with the ex-
ception of Article 7, for which a later date is provided, and the latter, Regulation 1393/2007, with
the exception of Articles 4 and 6, for which a later date is also provided.
Elisa Torralba Mendiola
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