Unfair commercial practices, abusive clauses, consumption and mediation (2nd Part)

In the previous post we talked about article 8 of Royal Legislative Decree 1/2007, of November 16, which approves the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws -TRLGDCU- (https://www.boe.es/buscar/act.php?id=BOE-A-2007-20555)  indicates the two problems that the consumer faces and that require special attention on the part of the public powers, which are the unfair business practices and the unfair terms.

Sectors specialized in consumption

There are several specialized sectors that can help us in the field of consumption in relation to claims, initiation and management of mediations, including initiation of arbitration or judicial procedures based on articles 23, 31 and 437 of the Civil Procedure Law, for example. through the advice and defense of lawyers, associations for the defense of consumers or professionals of public consumer administrations and, in a very special way, the municipal consumer information offices (OMIC).

The OMIC are the main means of defense and advice on the rights of consumers, but also, and not so widespread, as advisors to SMEs and professionals in the field of consumer law, they legally depend on the city councils, advise, process complaints and consumer complaints, coordinating with the competent consumer organizations of the Autonomous Communities.

These are the ones who will initiate the appropriate sanctioning procedures in their territorial area, when it is detected that the companies/professionals use unfair commercial practices, in accordance with article 47.1.m) of the TRLGDCU, which classifies said conduct as an administrative infraction in matters of consumption and Likewise, they may, in a coordinated manner and in accordance with the provisions of article 33 of Law 3/1991, of January 10, on Unfair Competition -LCD-, hold active standing to file injunction actions against said unfair practices, in defense of the general, collective or diffuse interests of consumers and users.

Consumer associations have led collective actions in Spain in defense of the rights of consumers, but, in the majority of the public consumer administrations of the Autonomous Communities, the right choice has been made to enhance the extrajudicial conflict resolution, through mediation and the consumer arbitration, with the clear purpose of solving any consumer conflict, leaving aside the sanctioning procedure and almost forgotten, the injunction actions, although the autonomous consumer legislation provides for these two possibilities of public action.

Extrajudicial conflict resolution systems (ADR-ODR) are the best system, for consumers and companies, with the sole defined objective of finding the best solution to conflicts in consumer relationships since they can do it in a simple way. and fast, at no cost to the parties (in the case of AAPP), being the option most companies choose socially responsible and with an applied ethical code.

This "submission", or, rather, in my opinion, the accession ADR-ODR in consumption, by companies, is not always produced, and at least by companies that are not very socially responsible, which show objective behavior contrary to good faith and honest market practices.

The clear objective of these companies is to intoxicate the behavior of consumers to obtain business benefits and especially consumers who are in a situation of subordination, helplessness either vulnerability, as we saw in the fragment of the Arbitration Award in the previous post (81 year old person).

The consumer conflicts incubated by the use of unfair commercial practices by companies lead us to think that it is difficult to obtain a fair solution for consumers through ODR-ADR, which, in In many cases, there will be no alternative but to resort to judicial proceedings or the administrative sanctioning procedure, which is why I always recommend promoting ethical and responsible trade in this area, in order to generate both economic and social wealth in B2B commercial interrelationships. B2C with the sole purpose of creating a win-win in the probable consumer conflicts generated in that legal relationship of the purchase and sale contract of goods and services.


When a consumer goes to an OMIC to file a consumer complaint, or to be advised in this area, because they consider that they purchased a product or contracted a service from a company or professional, “influenced” by a commercial practice that significantly distorted their will to contract, due to the advertising used by the company or professional, due to the way of promoting the good or service, before, during or after the commercial transaction, is when we consider from the sector specialized in consumer mediation and arbitration, that we are facing an unfair commercial practice.

Perhaps the recommended option for these cases is to report that the company has committed an infraction by using an unfair commercial practice, this through complaints in consumer services and more specifically according to the sector of the complaint, banking, insurance. , commerce etc. (https://www.consumo.gob.es/es/consumo/reclamaciones)

Continue training in the world of mediation thanks to masters like this. Do not lose your job.

Leave a comment