A brief overview on the provisions affecting financial institutions

In brief

The Spanish Council of Ministers has passed a preliminary bill that is expected to include additional rules on customer services.

The purpose of the regulation is to ensure consumers’ and users’ right to free, efficient, accessible, inclusive, non-discriminatory and evaluable customer service. In this regard, the bill introduces more detailed obligations for customer services than those that existed previously, which mainly relate to the following:

• The customer service provided to disabled people and older people
• The way companies provide information regarding how to access their customer services and what services are available
• The way complaints or inquiries are handled
• The qualifications and training required for the personnel in charge of providing customer service
• The company’s duty to collaborate with consumer and user associations
• The companies’ submission to evaluation systems and regular audits to measure the quality of the customer service provided

According to the current draft, compliance with this bill will be mandatory for all companies (domiciled in Spain or other EU Member States) that provide or offer “basic services of general interest” in Spain, which includes financial services. Thus, in addition to Spanish entities, the bill is expected to capture EU entities providing services in Spain through a branch or via free provision of cross-border services.

These proposals have generated discussion in the market, given that financial services claims and customer support have, thus far, been the main competence of the financial supervisory authorities rather than general local consumer authorities.

Note that, for clarification purposes, the current draft is subject to change until final publication.

New customer rights and business obligations

Many of the provisions included in this new legislation were previously established by the Spanish General Consumer and User Protection Act and in the other laws complementary thereto. In this regard, the bill simply reinforces some obligations that the law had already established.

However, other provisions could entail a more substantial change and impact to financial entities, and include the following obligations.

Minimum quality standards

• Companies must always allow the submission of complaints and inquiries via the same channel through which the contractual relationship was initiated.
• When a complaint or inquiry is made by telephone or by electronic means, companies must guarantee personalized service if the consumer or user requests it. Personalized service shall be understood as that offered directly through a human operator or commercial agent who answers in real-time and who must identify themselves at the beginning of the conversation.
• The use of automated answering machines or similar as the sole medium of customer service is prohibited. In this regard, if the customer is not satisfied with the (automated) service received, they may request that the call be transferred to a human supervisor, who must reply to the customer in the course of the same call.
• Personnel who provide personalized customer service or who design the automated means that can be used for this purpose must have specialized training depending on the sector or activity.
• In customer service provided via telephone, it is prohibited to refer the customer to a “toll-free” telephone number that may entail, in practice, a cost for the customer. Regarding telephone calls to persons with disabilities, said channel of communication shall, at the choice of the individual, be complemented with an alternative written messaging system or with a video system that includes sign language interpretation. Additionally, in the event that a complaint or inquiry is submitted via telephone, upon receipt of the call, the company must record it and inform the customer of how they can access it.
• In the event that telephone customer service is used, the maximum time that elapses from receiving the call in the customer service department until the customer is connected directly with the operator or commercial agent responsible for the personalized service shall be established by the regulations; therefore, it is not something that the company will be able to decide.
• Both the submission of the complaint or inquiry and its resolution must be recorded on a durable medium. It must be delivered to the client by the same means by which the communication was initiated.
• In no case may the processing of a complaint or inquiry be closed due to expiration or time barring that is not attributable to the customer. The burden of proof in this regard falls on the company.
• Customer service hours shall be established in accordance with the company’s business hours, and in the case of basic services of general interest, a 24-hour service must be provided every day of the year.
• Companies must implement and document a system to define the degree of customer satisfaction in terms of the treatment and professionalism of the personnel providing the service.
• Companies to which this law applies must establish stable frameworks for collaboration with the most representative consumer and user associations in relation to customer services.

Evaluation and auditing systems

Companies must put in place evaluation systems to measure the quality of their services, which must be properly documented on a medium that guarantees its integrity and must allow for public administration inspections.

In addition, companies must engage a firm to carry out an annual audit to verify the reliability and accuracy of the measurements that were reported throughout the year.

Information on the evaluation and auditing system must be published on the company’s website.

This client alert was issued on 10 January 2022 by Baker McKenzie’s Madrid office and shall not be deemed as legal advice. For further information on the content of this client alert, please contact Paula De Biase (partner, financial services regulation) through paula.debiase@bakermckenzie.com.