Your provider will not let you leave: lock in and penalty

The case, in five lines

What is brought

A challenge to the minimum term clause and to the penalty as unfair, claiming back whatever has been charged and opposing any debit or listing on a default register.

Before which court

The Oficina de Atención al Usuario de Telecomunicaciones (the telecoms users authority) on the administrative side and, to recover what has already been charged, the Civil section of the Tribunal de Instancia (the first-instance court).

Deadline

Three months to go to the Oficina de Atención al Usuario de Telecomunicaciones, counted from the operator's reply or from the expiry of the time it had to answer. The civil claim to recover what was charged follows the five year period of Article 1964.2 of the Civil Code.

Who can bring it

The subscriber named as holder of the contract. Where the contract is a bundle of services, the holder's position extends to every element of the bundle.

Financial risk

While the matter is disputed the company may attempt the debit and report the debt to a default register, which forces action on both fronts at once. If the penalty turns out to be owed, it will be paid with whatever interest applies.

The minimum term must be in the contract, not in a phone call

Article 8 of Royal Decree 899/2009 lists what the contract of an end user of electronic communications must state as a minimum. Among those contents is the contract period, indicating where applicable the existence of minimum subscription and renewal terms, together with the consequences of any breach of them. A minimum term and its penalty are not a sales warning: they are compulsory contractual content.

The same article requires the causes and forms of termination and renewal to be stated, among which the subscriber's unilateral decision must expressly appear, and requires the links between the service contract and other contracts, such as those for acquiring terminal equipment, to be set out. That detail is precisely what tends to be missing when they gave you a router or a handset.

And if the contract was made by telephone or electronically on terms different from the published general conditions, Article 26 requires the operator to send you, within fifteen days of contracting, a document setting out the terms and conditions of the offer, expressly stating how long it lasts. If that document never arrived, the minimum term now held against you lacks the support the rule demands.

A penalty answering to no real loss is an unfair term

Article 87 of the consolidated Consumer Protection Act declares unfair those clauses that break the reciprocity of the contract to the consumer's detriment. Its sixth paragraph is what decides these matters, because it expressly lists the onerous or disproportionate obstacles placed in the way of ending contracts of a continuing nature.

That paragraph names, one by one, the practices at issue here: the imposition of excessively long terms, limitations that obstruct the right to end the contract, the loss of sums paid in advance, payment for services not actually supplied, the trader's unilateral enforcement of agreed penalty clauses, and the setting of compensation that does not correspond to the loss actually caused.

The practical consequence is that the company has to explain the figure. Invoking a twelve or twenty four month commitment is not enough: what must be seen is what discount was actually applied, what handset was handed over, how much has already been written off by the months served, and what part of the sum claimed answers to a loss and what part is simply a punishment for leaving.

If they changed your contract, you may leave paying nothing

Article 9 of Royal Decree 899/2009 is the cleanest route when there has been a price rise. It provides that electronic communications contracts may be modified only on the valid grounds expressly set out in the contract, and that the end user is entitled to end the contract early and without any penalty in those cases.

The same article adds a formal duty that is often ignored: operators must notify end users of contractual changes at least one month in advance, expressly informing them in the notice of their right to end the contract early without penalty. A rise announced inside an invoice, without that month's notice and without that express information, does not meet the rule.

Where those circumstances arise, the argument about calculating the penalty becomes unnecessary: there is no penalty to calculate, because the exit is free. That is why the first thing looked for in the file is any change of price, of speed or of conditions in the months before the departure, and the exact way it was communicated.

A new service does not restart the minimum term by itself

Article 71 of Law 11/2022 deals with bundled contracts, which is how nearly everything is sold today: fibre, mobile lines, television and handsets on a single bill. Its third paragraph contains the rule most often broken: any subscription to additional services or to terminal equipment supplied by the same operator does not extend the original contract period, unless the consumer expressly accepts otherwise when taking them on.

Adding a line, accepting a set top box or changing handsets does not by itself restart the lock in clock. Express acceptance is needed at that moment, and the company has to be able to prove it. When the only record is a sales call after which no terms document was sent, that express acceptance is nowhere to be found.

The same article provides another tool: where the consumer is entitled to terminate any element of the bundle before its term ends, whether for lack of conformity with the contract or for failure to supply, he is entitled to terminate the entire contract as to every element. And its first and third paragraphs also apply to microenterprises, small businesses and non profit bodies unless expressly waived.

Termination takes effect in two days and later charges are barred

Article 7 of Royal Decree 899/2009 lays down a rule worth bearing in mind even before arguing about the penalty: the contract ends at the subscriber's will, notified to the operator at least two working days before it is to take effect. No recorded letters or explanations are needed, only the notice and those two days.

The same article shuts the door on trailing charges: the operator must refrain from billing and collecting any sum that may have accrued, for reasons not attributable to the end user, after the two day period in which the termination should have taken effect. Charges that keep appearing after that date are challenged with that provision in hand.

The route the operator provides for terminating must comply with Article 26 and must in every case guarantee the user a record of the content of the termination request. Hence the first practical rule is a simple one: no termination is requested without obtaining and noting the reference number that proves what was asked and when.

The reference number decides who wins the complaint

Article 26 of Royal Decree 899/2009 requires operators to have a specialised customer service department, free of charge, to handle and resolve complaints, claims and any contractual incident. That service must be provided so that the user has a record of everything raised, and the operator is obliged to give a reference number for each complaint or request.

The same article requires the telephone route always to be accepted and, where that is the route the operator offers, requires the consumer to be told of the right to request a document evidencing the making and the content of the complaint on any medium that allows it to be proved. That document is what turns a conversation into evidence.

With that record in hand the matter then goes to the Oficina de Atención al Usuario de Telecomunicaciones, where the deadline to complain is three months. In parallel, Article 68 of Law 11/2022 obliges operators to publish contract related information clearly, accessibly and up to date, which allows what they publish today to be checked against what you were told then.

How we run the case, step by step

1. 1

   Complaint to customer service with a reference number

   The complaint is made and the reference number and the document evidencing its content are demanded. Without that number the company will later maintain that you never complained, and the administrative route closes by itself.

2. 2

   Requesting the contract and the breakdown of the penalty

   We demand the signed contract, the terms document for the telephone offer and the calculation of the sum claimed, item by item. A figure with no breakdown is the first sign that it answers to no real loss.

3. 3

   Documented termination or number porting

   Termination is notified with two working days' notice and the record is kept, so that no later charge can be billed. If porting is under way, we make sure the line is not left without service.

4. 4

   Complaint to the Oficina de Atención al Usuario

   Within the three months the matter is put to the Oficina de Atención al Usuario de Telecomunicaciones, with the reference number, the contract and the breakdown the company has produced or refused to produce.

5. 5

   Defence against the debit and the default register

   We state in writing that the debt is disputed, return the direct debit where appropriate, and act against any listing on a default register based on a sum that is not undisputed.

6. 6

   Civil claim for what was charged

   If the company has already collected, repayment is claimed before the Civil section of the Tribunal de Instancia, relying on the unfair character of the clause and on the mismatch between the sum and the real loss.

The law that applies

• Art. 87 TRLGDCU. It declares unfair those clauses creating a lack of reciprocity to the consumer's detriment and, in its sixth paragraph, those imposing onerous or disproportionate obstacles to ending continuing contracts, among them excessively long terms, the loss of sums paid in advance, payment for services not actually supplied, the trader's unilateral enforcement of penalty clauses, and compensation that does not correspond to the loss actually caused. BOE-A-2007-20555
• Art. 7 RD 899/2009. The contract ends on the general grounds and, in particular, at the subscriber's will, notified to the operator at least two working days before it is to take effect. The operator must refrain from billing or collecting any sum accrued after that period for reasons not attributable to the user, and the termination route must guarantee a record of the content of the request. BOE-A-2009-8961
• Art. 8 RD 899/2009. It sets the minimum content of the contract, which must state the contract period, including any minimum subscription and renewal terms and the consequences of breaching them, the links with other contracts such as those for terminal equipment, prices and financial conditions, the compensation policy, and the causes and forms of termination, among which the subscriber's unilateral decision must expressly appear. BOE-A-2009-8961
• Art. 9 RD 899/2009. Contracts may be modified only on the valid grounds expressly set out in them, the end user is entitled to terminate early and without any penalty in those cases, and the operator must give at least one month's notice of the change, expressly informing the user of that right. BOE-A-2009-8961
• Art. 26 RD 899/2009. It requires operators to run a free specialised customer service that keeps a record of everything the subscriber raises, to give a reference number for each complaint, always to accept the telephone route and to inform users of their right to obtain an evidencing document. Where the contract is made by phone or online on terms other than the general ones, the operator must send within fifteen days a document with the terms of the offer and how long it lasts. BOE-A-2009-8961
• Art. 71 Ley 11/2022. In bundled contracts the contract summary, the contractual information and the duration and termination conditions of Article 67 apply to every element. If the consumer may terminate one element before its term for lack of conformity or failure to supply, he may terminate the whole contract. A subscription to additional services or to terminal equipment from the same operator does not extend the original period unless expressly accepted when taking them on. BOE-A-2022-10757

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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