Spanish Supreme Court applies EU principle of proportionality as a restriction on the imposition of tax penalties

15 April 2024

The Supreme Court, with settled case law according to which the principle of proportionality constitutes a restriction on the imposition of tax penalties, must now hand down a ruling in a new ‘cassation’ appeal on whether the penalty under Article 171(1)(5) of the VAT Act is in accordance with the law, a ruling that is expected to be consistent with the Court’s own case law.

Dilemma over contract periods set by reference to non-calendar dates

11 April 2024

A short guide to managing contractual problems of dissensus.

“Wilful misconduct of the directors will be attributable to each of the sellers”. Anatomy of a business acquisition contract clause

3 April 2024

Clause deemed essential by the purchaser of the majority of share capital when the sellers are minority shareholders.

Chain of transfer contracts relating to contaminated land

27 March 2024

Contract law is not subject to environmental law.

Adoption of the Directive on empowering consumers for the green transition

21 March 2024

The Directive on empowering consumers for the green transition imposes on producers and sellers of goods a number of obligations aimed at protecting consumers from misleading environmental claims (‘greenwashing’), helping consumers and users make more sustainable choices and increasing confidence in ecological information and labels.

Modification of the European regime for harmonised collective investment schemes and alternative investment fund managers

11 March 2024

The forthcoming directive extensively modifies the delegation regime, liquidity risk management and supervisory reporting for managers of collective investment schemes (IIC) and alternative investment funds (AIFs), as well as loan origination by alternative investment funds.

Surety guaranteeing payment of a percentage of the purchase price: not as good as it seems

7 March 2024

A common hypothetical case of suretyships, the seller is, no doubt, unaware of the drawbacks.

Pharma & Healthcare No. 37

7 March 2024

Compensation for trademark infringement cannot be claimed if previously compensated in other proceedings for intellectual property infringement (“Pasapalabra”)

6 March 2024

The EU’s deforestation regulation and its impact on international trade

23 February 2024

The obligations laid down in the European Union’s new deforestation regulation, with an impact on the import and export of certain products to and from the EU, will be enforceable at the end of 2024.

Spanish Tax Tribunal concludes that real estate contributions to a community of property generates capital gains for personal income tax purposes

20 February 2024

The Spanish Tax Tribunal concludes that the contribution made by one of the spouses to the community of property which, as regards personal income tax, is considered, after said contribution, to be owned by halves by both spouses, entails for the contributor a change in the composition of his/her assets, capable of generating capital gains or losses for personal income tax purposes.

ESG Legal Practice Newsletter, no.4. On current environmental, social and governance issues

20 February 2024

Newsletter on current environmental, social and governance (ESG) issues

Proposal in respect of share transfers in contravention of restrictions

12 February 2024

An old debate not yet settled by case law: the appropriate remedy for share transfers contrary to statutory restrictions or to restrictions provided for in a company’s articles of association.

The Spanish Supreme Court allows a ‘cassation’ appeal to proceed in connection with software and computer application development expenses and corporate income tax relief for technological innovation activities

1 February 2024

Automotive and Mobility No. 22

31 January 2024

Value assigned by the Supreme Court to CRPD reports outweighs that afforded to ECHR judgments

29 January 2024

The Spanish Supreme Court, in a recent and questionable judgment, assigns binding value to the reports of the Committee on the Rights of Persons with Disabilities (‘CRPD’) in claims for pecuniary liability and to correct final and conclusive judgments of national courts.

Rules governing financial advisory firm membership of the Investment Guarantee Fund and other amendments thereto

22 January 2024

RD 1180/2023, of 27 December, amends RD 948/2001 on investor compensation schemes to include financial advisory firms as contributors to FOGAIN and to reduce the fixed annual amounts of IF contributions to the fund.

Main energy-related regulatory changes introduced by Royal Decree-law 8/2023

17 January 2024

Royal Decree-law 8/2023 introduces measures to, inter alia, extend time limits applicable to the deployment of renewable projects, promote self-consumption and boost demand, and prolong measures derived from the Ukrainian War

Data controller and data processor

17 January 2024

Two controllers or one controller and one processor. First decision of the Court of Justice of the European Union on vicarious liability under Regulation 2016/679.

The Data Act: Implications for trade secrets and intellectual property

11 January 2024

Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data is analysed.

Ten employment commandments for regulatory compliance in 2024

10 January 2024

Amendment to the Tax Scheme for Non-Profit Organisations and Tax Incentives for Patronage Act 49/2002 of 23 December 2002

9 January 2024

Approval of Royal Decree-law 6/2023 of 19 December, which, inter alia, modifies the tax incentives for patronage by natural persons, legal persons and non-residents.

New developments in the inpatriate (‘inpat’) scheme: the “Beckham scheme”

20 December 2023

Royal Decree 1008/2023 implements the amendments approved by the Start-up Ecosystem Act.

Pharma & Healthcare No. 36

11 December 2023

Legal doctrine created by public records authorities on company acquisitions and disposals of “essential assets” (Art. 160(f) LSC)

29 November 2023

A concise account is given of the criteria used by the public records authorities to resolve some of the most recurrent questions raised in relation to the legal regime for the acquisition and disposal by companies of their "essential assets" (Art. 160(f) LSC).

The Supreme Court upholds the deductibility of remuneration earned by directors for the performance of actual and effective executive functions

24 November 2023

The Supreme Court, in line with the doctrine set out in its judgment of 27 June 2023, establishes the deductibility for corporate income tax purposes of the remuneration paid to general managers with a senior management employment contract who perform actual and effective executive functions whilst sitting on the board of directors.

ESG Legal Practice Newsletter, no.3. On current environmental, social and governance issues

22 November 2023

Newsletter on current environmental, social and governance (ESG) issues

Liability of crowdfunding platforms for project owner defaults

15 November 2023

Crowdfunding platforms are not covered by the "safe harbour" for providers of mere intermediation services. They are thus exposed to the rules on liability for the actions of others that may result from national legislation.

Invalidity of contracts on the basis of breaches of directors’ duty of loyalty

13 November 2023

As to whether shareholders also have standing to bring actions for the “invalidation” of contracts under Art. 232 of the Spanish Companies Act.

Tax treatment of carried interest clarified by the DGT

25 October 2023

The Directorate General for Taxation analyses certain aspects concerning the taxation of carried interest, specifying how certain requirements for the application of this special scheme, regulated in the fifty-third additional provision of Act 35/2006, should be interpreted

Insurance and Financial Regulation N o. 6

25 October 2023

Financial regulatory update.

EU sustainability legislation: where do we stand?

19 October 2023

In order to meet the commitments under the Paris Agreement and the European Green Deal, the European Union institutions have established a broad and complex legal framework for sustainability in which the Taxonomy plays a central role.

Digital disconnection in teleworking for reasons beyond the company’s control

18 October 2023

Remote working is subject to decisive collective agreement intervention. However, judicial intervention occurs in cases of "disconnection" due to a power failure at home or due to inexcusable physiological needs.

Pharma & Healthcare No. 35

11 October 2023

The Directorate-General for Taxation introduces a new criterion concerning the taxation of SPV sales in the renewable energy sector

5 October 2023

DG for Taxation analyses the possibility of applying the exemption in Art. 21(3) of the Corporate Income Tax Act in a case in which a company transfers its shares in a SPV engaged in the development of solar photovoltaic plants.

Limits to the obligation of telecommunications operators to retain traffic and location data for the purpose of combatting unlawful acts

4 October 2023

Telecommunications operators are not required to retain traffic and location data for disciplinary actions against corruption.

Minimum purchase obligation qualified by a best efforts clause. Test case in Spain.

28 September 2023

The case under consideration involved an interpretative problem: whether the distributor's obligation to make minimum purchases of the distributed product is subordinate to another clause requiring the use of best efforts to fulfil that obligation.

Employee transfers in public procurement: obligation not included in the tender documents, but in the collective agreement applicable to the public authority tendering the service

21 September 2023

The Judicial Review Division interprets Art. 130(1) of the Public Procurement Act as only allowing agreed transfers of employment contracts when included in the sector of the outsourced activity, preventing such transfer clauses in public sector collective agreements.

On the possibility of not including in the articles of association all or some of the legally defined circumstances in which a shareholder must abstain from voting (Art. 190(1) of the Spanish Companies Act)

20 September 2023

Can the articles of association of a company limited by shares do away with all or some of the legally defined circumstances  Art. 190(1) in which a shareholder involved in a conflict of interest with the company is prohibited from voting at the general meeting?

Automotive and Mobility No. 21

15 September 2023

Share value guarantees are void (Supreme Court Judgment of 20 April 2023)

8 September 2023

This paper analyses recent case law on the validity of share value guarantees (so-called "share price guarantees") from the point of view of the infringement of the prohibition of financial assistance.

Misleading marketing of unit-linked group insurance. Both the policyholder and the insurer are open to actions to void

5 September 2023

A commercial practice of misleading by omission leads to vitiated consent, in respect of which even a non-contracting party is liable

A job guarantee ‘net’: Sectoral or cyclical Employment Flexibility and Stability RED Mechanism

27 July 2023

Created with the employment law reform, the regulatory implementation of the RED Mechanism is now provided for so that, on a cyclical or sectoral basis and once activated by the Cabinet, companies can suspend contracts or reduce working hours with different types of economic and social aid.

Two clarifications from the Supreme Court on the rules for the disposal of essential assets and the scope of protection of the business judgment rule

26 July 2023

In its Judgment 1045/2023, the Spanish Supreme Court has provided certain clarifications regarding the legal concept of essential assets in the context of Article 160a of the Spanish Companies Act (LSC) and on the scope of protection of the business judgment rule (Article 226(1) LSC).

The ‘large owner’ residential landlord

21 July 2023

Commentary on this concept of 'large owner' introduced by the Right to Housing Act 13/2023.

Proposal for a Council Directive on Faster and Safer Relief of Excess Withholding Taxes

19 July 2023

Analysis of the most salient aspects of the proposed FASTER Directive, aimed at improving the procedures for levying and refunding withholding taxes on foreign-source dividends and interest.

Foreign investment regulations

13 July 2023

On 5 July 2023, Royal Decree 571/2023 of 4 July on foreign investment was published in the Official State Gazette.

Automotive and Mobility No. 20

28 June 2023