Respaldada la sanción a Telefónica por «imponer» factura electrónica

The General Directorate of Consumer Affairs highlights a recent ruling from the Supreme Court, from the Third Section of the Administrative Litigation Chamber, which supports the decision taken by the Council of Government -and the ruling of the Higher Court of Justice of Andalusia (TSJA)-, considering the telecommunications operator Telefónica España as the perpetrator of an administrative offense for «imposing» electronic billing on customers.

This offense, decided by the Council of Government on December 18, 2018, resulted in a fine of 765,000 euros for the company. Telefónica appealed the fine in the administrative litigation process before the TSJA, which dismissed the appeal. The operator appealed again through a cassation appeal to the Supreme Court, which also dismissed it.

The judges of the Third Section of the Administrative Litigation Chamber of the Supreme Court indicate that the appealed TSJA ruling is based on previous rulings in identical cases. Thus, based on Law 13/2003, of December 17, on the Defense and Protection of Consumers and Users of Andalusia, it considers the clause on electronic billing «abusive» for «imposing this type of billing through a general clause in an adhesion contract, without the consumer having expressly accepted it and separately.

Therefore, it is argued that the company «cannot exercise the consumer’s right to choose one option over another based on implied consent, imposing electronic billing and thus limiting the basic rights of the consumer.» In the same ruling, it is stated that «the clause in question must be classified as abusive, as it no longer proposes, but imposes electronic billing». Therefore, the court details, «it is a fact that many consumers receive electronic billing as a predisposed clause in an adhesion contract without having expressly accepted it.»

The Supreme Court recalls that Article 63 of the General Law for the Defense of Consumers and Users states that «in contracts with consumers and users, they shall have the right to receive the invoice on paper. In this case, the issuance of the electronic invoice shall be subject to the entrepreneur having previously obtained the express consent of the consumer. The consent request must specify how the electronic invoice will be received, as well as the possibility for the recipient who has given consent to revoke it and the procedure for such revocation. The right of the consumer and user to receive the invoice on paper cannot be conditioned on the payment of any amount«.

Likewise, in the legal framework exposition, reference is made to the Regulation governing invoicing obligations, which establishes, in Article 9, that «the issuance of the electronic invoice shall be subject to the recipient having given their consent».

Therefore, considering the legal framework and jurisprudence, there are «two explicit requirements that have not been respected»: on the one hand, that the receipt of the invoice on paper is considered an unconditional right of the user, and, on the other hand, that renouncing this right «must not only be express but must be manifested through a procedure directly provided for in the law».