Neighbourhood communities are consumers when signing service lease contracts
In a new Judgment of April 13, 2021, the Supreme Court has recognized that the neighborhood communities are consumers in relation to the lease contracts for services that may formalize such as maintenance of facilities and elevators, cleaning of common areas, garbage collection, concierge services, etc.
This recognition allows neighboring communities to benefit from and defend themselves against possible unfair terms contained in said contracts.
Up to this date, Spanish courts and tribunals had certain doubts and had been excluding neighboring communities from the category of consumers in a literal application of Directive 93/ 13/CEE of the Council, of April 5, 1993, on unfair terms in contracts entered into with consumers, in which the consumer is defined as
“any natural person who, in the contracts governed by this Directive, acts for a purpose unrelated to his professional activity”.
Since the neighboring communities would not comply with the first requirement, that is, being a natural person, it was understood that they were outside the scope of application of the benefits set for consumers in the community standard.
Neighbourhood communities are consumers in relation to service leases
However, in the aforementioned Supreme Court Judgment of April 13, 2021, magistrate D. Díaz Fraile changes this vision based on the Judgment of the Court of Justice of European Union (CJEU), Condominio di Milano Case, of April 2, 2020 which establishes that, until the legislator of the European Union rules on the matter, the Member States retain the power to regulate the legal regime of the community of owners, being able to extend to it or not the legal consequences that the attribution of consumer status is provided for in the Directive 93/13/EEC of the Council of April 5, 1993.
Thus, the aforementioned CJEU Judgment concludes that Member States are free to extend the provisions of Directive 93/13/EEC to sectors not included in its literal scope of application with the sole condition that the national Courts and Tribunals ensure and guarantee a level of consumer protection equal to or higher than that expressly provided for in the Directive, all without contravening the provisions established in the Union Treaties.
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In application of this premise, the Judgment of April 13, 2021 determines that the consumer protection regulations contained in Directive 93/13/EEC must be applied to the contracts entered into by the communities of owners while these have a unitary consideration for certain legal purposes, despite lacking independent legal personality, since there is a separate collective patrimony, recognizing a certain degree of personality to them in relation to certain effects, such as the procedural capacity to sue and be sued.
The possibility or not of inclusion of neighboring communities in the category of vulnerable consumer
Based on what has been stated in relation to the consideration of consumers and neighboring communities, it is interesting to analyze whether the category of vulnerable consumer, vulnerable severe or at risk of social exclusion in the sense of Royal Decree 897/2017, of October 6, which regulates the figure of the vulnerable consumer, the social bonus and other protection measures for domestic consumers em> (RD 897/2017), since, in principle, only natural persons fall into this category.
Recently, the Council of Ministers approved Royal Decree-Law 1/2021, of January 19, on the protection of consumers and users in situations of social vulnerability and economic (RDL 1/2021) with which it reinforces the protection of the most vulnerable people in the field of their basic consumption. Likewise, numerous changes are introduced in the Consolidated Text of the General Law for the Defense of Consumers and Users (TRLGDCU), among which is the introduction of the concept of vulnerable consumer, which includes minors, elderly people, with low level digitization, with functional, intellectual, cognitive or sensory disabilities, among others.
This modification that establishes the general concept of vulnerable consumer uses the term “vulnerable consumer person” from which we can deduce that the vulnerable consumer is a natural person and, therefore, a priori, neither legal persons nor entities without personality should have this consideration, to which only the consideration of standard consumer would be attributable.
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However, the vulnerable consumer is specified in consumer relationships and these are defined by their contractual origin, that is, by the existence of a subject who acquires goods or services from a businessman. Therefore, it is understood that, when this subject acquires these goods or services, they are in a special situation of subordination, defenselessness or vulnerability and, consequently, they will be a vulnerable consumer. In addition, RDL 1/2021 considers that the situation of lack of protection can occur individually or collectively and there are certain groups that, by their very nature, may be made up of vulnerable consumers.
We must also mention to analyze the matter that concerns us the content of Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to deal with to the economic and social impact of COVID-19 (RDL 8/2020) published on the occasion of the health, economic and social crisis caused by COVID-19, which expressly limited the prohibition of cutting off supplies to consumers who are considered vulnerable, severely vulnerable or at risk of social exclusion, limitation extended to natural gas and water consumers by virtue of the provisions of DA4 of Royal Decree-Law 37/2020, of December 22, on urgent measures to address situations of social and economic vulnerability in the field of housing and transportation (RDL 37/2020).
In the aforementioned RDL, the term “consumer” and the repeated mention in both norms of “vulnerable groups” indicates that the purpose of this social protection norm is that the recipient end have effective and uninterrupted access to potable water, energy and gas; In short, that he is not deprived of these essential goods due to non-payment.
Consequently, we understand that the circumstance that if, for example, the contracting of these supplies has been carried out not by each individual consumer but by the community of owners, urbanization or complex to which the dwelling belongs, this does not prevent per se the effectiveness of the legal prohibition contained in RDL 8/2020 and RDL 37/2020, an interpretation that would be in line with the interpretation made by the Supreme Court Judgment of April 13, 2021 described above on the condition of consumer of the communities of owners.
There are, however, numerous questions that are not resolved either by the legislator or by jurisprudence, such as the method of accreditation by the consumer community of owners of the concurrence of the requirements to be beneficiary of the prohibition to cut basic supplies or what happens when, in the same neighborhood community, coexist owners who meet the requirements to be beneficiaries of the prohibition to cut basic supplies and owners who do not meet these requirements.
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