Legal Status - JULY 2025
Disputes: Discovery and Disclosure of Trade Secrets
Tax: Inheritances and Gifts of Rights with an International Component
DISPUTES
Discovery and Disclosure of Trade Secrets
MARÍA ELÍAS
Associate
The Spanish Criminal Code punishes with imprisonment those individuals who, in order to uncover a trade secret, take possession, by any means, of data, written or electronic documents, computer media or other items, or who use certain means or instruments for the same purpose. Likewise, the dissemination, disclosure or transfer of a trade secret by a person who is legally or contractually bound to maintain its confidentiality constitutes an aggravated offence and is also punishable.
Such criminal actions must be aimed at uncovering or revealing a secret—information known to one or more individuals who have an interest in keeping it confidential from others, particularly those engaged in the same business or activity.
However, a fundamental aspect of this offence is that the information must constitute a business secret, which, unlike an industrial secret, is not limited solely to secrets relating to production techniques but also includes information concerning the commercial sphere and the organisation of the business.
Therefore, a trade secret can be understood as any information or knowledge, whether technological, scientific, industrial, commercial, organisational or financial, that meets three conditions: it is not known or accessible to individuals within the sector; it holds business and economic value; and reasonable measures have been taken by its owner to maintain its secrecy.
In this regard, only information that is actually sufficient to harm the competitive capacity of the undertaking may be considered as such.
The disclosure of such secrets jeopardises free competition in the market, especially in today’s highly competitive business environment.
The Supreme Court (Judgments STS 864/2008 and STS 3902/2024) has been emphasizing several aspects, essential for the proper interpretation of this offence:
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This crime may be committed by any person, without requiring any specific characteristics.
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The conduct may take two forms: it may consist of taking possession, by any means, of the media, regardless of type, containing the secret, or it may involve using methods aimed at intercepting communications or employing technical devices to write, transmit, record or reproduce sound, images or any other communication signals.
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It is a crime of anticipatory consummation, meaning that the act of seizure undertaken with the intent to obtain the secret is sufficient for the offense to be deemed complete. It is deemed consummated even if the perpetrator ultimately fails to access the content of the secret, as may occur, for example, when they are unable to decrypt the security keys used by the company to protect the information.
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The offence of discovery of trade secrets is classified as a crime of concrete endangerment, meaning that it is not necessary for actual harm to the company's competitive capacity to occur. It is sufficient that the protected legal interest is placed at risk.
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It is based on the duty of loyalty owed by those who have knowledge of the secret by virtue of a legal or contractual relationship with the company. The protected legal interest is fair competition among businesses.
- Its materialisation may occur through any type of medium, whether physical or electronic, in either original or copied form, and even through verbal communication.
It is debated whether the discovery of a trade secret by means other than the seizure of the data or media containing the secret, e.g. accidental discovery, can be considered a criminal offence.
Some doctrine holds that the "intellectual appropriation of the secret" is sufficient for the offence to be considered committed; that is, its understanding or assimilation, without the need to physically remove the medium on which it is stored.
However, this interpretation has a significant limitation: the mere mental or intellectual capture of the secret will only be criminally relevant when the individual has performed some act upon the medium that allowed them, even if only momentarily, to effectively access that information. For example, if an employee enters an office and, without removing any documents, opens a folder and reads a confidential report on the company's commercial strategies, this action could, according to doctrine, constitute the offence despite the absence of a formal act of seizure.
July 2025
EMPLOYMENT
The Right to Digital Disconnection: Limits on Employee Availability Outside Working Hours
BEATRIZ CORRAL
Associate
In an increasingly digitized world of work, where the boundaries between work time and personal life are blurring with alarming ease, digital disconnection has become an essential principle, not only to preserve the health of employees, but also to ensure sustainable and respectful work environments.
The right to digital disconnection is enshrined in Article 88 of Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights. This regulatory provision, complemented by Article 20 bis of the Workers' Statute, grants all employees—including senior managers and those who work remotely—the right not to answer calls, messages, or emails outside of their working hours, unless there is expressly agreed availability.
The aim of this regulation is to safeguard rest, privacy, and personal and family life from the effects of hyperconnectivity. In this regard, the regulation not only obliges companies to avoid communications outside working hours, but also requires them to implement digital disconnection protocols, train their employees on the reasonable use of technological tools, and enable channels for reporting possible violations.
The importance of the right to disconnect is not just theoretical. Recent case law has begun to outline its contours and has offered interpretative criteria clarifying its scope and limits. In March 2022, the High Court of Justice of Asturias analyzed whether the repeated sending of WhatsApp messages outside working hours violated this right. The court considered that, as it was a regular channel of communication and there had been no prior complaint from the employee, it could not be concluded that a violation had occurred.
On the contrary, in the ruling of the High Court of Justice of Madrid in September 2023, the court upheld the disciplinary dismissal of an employee who, during his superior's vacation, sent him multiple messages and emails, violating his right to rest. This reaffirms that digital disconnection must be respected at all hierarchical levels and that its violation may constitute just cause for dismissal, as it is a shared duty among employees.
In May 2023, the High Court of Justice of Catalonia concluded that the violation of the right to digital disconnection does not, in itself, imply compensation for moral damages, as it is not a fundamental constitutional right. However, it recalled that companies remain obliged to guarantee this right through appropriate protocols that protect employees' rest time.
Regarding compulsory training outside working hours, the High Court of Justice of Madrid, in its ruling of November 4, 2020, decided that the right to disconnect is not violated when compulsory training outside working hours constitutes actual work and is remunerated. In this case, an air traffic controller was penalized for not completing an online course, and the court concluded that, as it was a paid work obligation, it was not resting time, but actual work time.
For its part, the National Court, in a ruling dated March 22, declared several clauses of a teleworking agreement that sought to unilaterally impose availability outside working hours to be null and void. The court made it clear that any restriction on the right to disconnect must be the result of Collective Bargaining Agreement or agreed upon with the Workers´Legal Representatives and cannot be imposed unilaterally by the company.
Ultimately, digital disconnection is neither a privilege nor a passing trend. Rather, it is an essential right in the 21st century. It is a fundamental tool for balancing work and personal life. Furthermore, it is a legal instrument that strengthens health, dignity, and efficiency in the workplace. Therefore, companies cannot ignore their obligation to respect rest periods and cannot impose permanent availability outside of working hours. To this end, companies must implement clear digital disconnection protocols, train their staff on how to use them, and establish effective channels for preventing and reporting any violations.
July 2025
INFRASTRUCTURE
The Future of Toll Collection on Highways: Regulatory Risks and Investment Opportunities for PPPs
NURIA CORTÉS
Partner
Based on our extensive experience advising international groups that lead in the development, financing, and operation of infrastructure projects, we have witnessed firsthand the concession model has played a key role in the expansion and modernization of road infrastructure throughout Latin America—particularly in Chile. Public-Private Partnerships (PPPs) have made it possible to channel private investment into key sectors, boosting the economy, improving connectivity, and alleviating the tax burden on the state. However, recent Chilean legislative initiatives—such as the well-known Mulet Law (Bulletin No. 16.346-15), which aims to eliminate fines for users who fail to utilize electronic toll collection devices (TAG) on Chile’s free-flow highways—have raised significant concerns among industry stakeholders, particularly in relation to legal certainty and the long-term viability of the concession model.
The challenge posed by the Mulet Law
The Chilean bill (Bulletin No. 16.346-15) proposes an amendment to the Chilean Traffic Law (Law No. 18.290), specifically to Article 114, to eliminate fines for driving without a TAG device, or with an expired or damaged device.
In essence, the Mulet Law in Chile aims to protect users of the electronic toll collection system from penalties that many consider disproportionate. However, this initiative puts at risk one of the foundational pillars of any concession model: revenue certainty. Without effective legal mechanisms to ensure toll collection for infrastructure use, the financial basis of Chilean concession contracts is weakened, affecting both ongoing operations and the attractiveness of future tenders.
This Chilean law poses significant risks such as: (i) disruption of the economic balance of the contract by eliminating penalties and therefore increasing uncollectability, (ii) a disincentive for private investment and (iii) technological regression as the removal of the free-flow system widely implemented in Chilean highways would lead to increased congestion and higher operational costs.
While eliminating administrative fines may appear popular in the short term, such a measure disregards the systemic implications for the infrastructure investment framework in Chile. Moreover, it discourages voluntary compliance, facilitates fraudulent use of toll road infrastructure in Chile, and - under the best-case scenario for concessionaires - shifts the burden of payment to the Chilean State.
International regulatory trends
Globally, the prevailing trend is not the elimination of penalties, but rather the strengthening of toll collection mechanisms based on principles of proportionality, efficiency and transparency. In Europe, countries such as Norway and Germany have implemented robust electronic tolling systems supported by public awareness campaigns and effective sanction regimes. Even in the United States, where decentralization leads to a variety of models, the user-pays principle has been firmly established as a cornerstone of road infrastructure sustainability.
In many cases, collaboration between concessionaires and public authorities has led to the development of technologies for identifying vehicles without TAG devices and generating automatic charges linked to vehicle registration. These systems ensure the traceability and enforceability of toll collection without relying exclusively on the good faith of drivers.
How to make the PPP model attractive again?
In light of the current context, we identify three lines of action that should be incorporated into the legal and commercial analysis:
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Legal certainty: It is essential that concession contracts include clear mechanisms to safeguard against unilateral legislative changes that may disrupt their economic balance. Stability clauses, compensation mechanisms and the involvement of concessionaires in the development of regulatory frameworks are essential measures.
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Public-private collaboration in technological innovation: The deployment of systems for license plate recognition, digital invoicing and automated infringement processing, underpinned by a solid legal framework, can reduce toll evasion without resorting to disproportionate sanctions. These technologies are already used successfully in other jurisdictions.
- Fostering a culture of compliance among road users: Public information and road education campaigns are essential to promote greater public adherence to the system and to reduce user conflict.
Conclusion
Legal stability and regulatory predictability are essential conditions for maintaining the confidence of private investors. In a global context where countries actively compete to attract capital for high-impact infrastructure projects, the existence of clear legal frameworks that respect the contractual balance is more critical than ever. The objective is not to eliminate user penalties altogether, but rather to develop a more modern, equitable and efficient system that guarantees both user rights and the financial viability of concessionaires through balance, transparency, and a long-term perspective.
July 2025
TAX
Inheritances and Gifts of Rights with an International Component
ALEJANDRO PUYO
Partner
With the increase in the number of foreign residents in Spain, it is becoming increasingly common to inherit or receive as a gift, assets located outside the country. For those with tax residence in Spain, receiving assets located abroad or in Spain entails certain obligations in the Inheritance and Gift Tax (ISD). This taxation affects both Spanish and foreign residents.
On the other hand, the applicable rules and regulations may change depending on the means of acquisition of assets (inheritance/donation), the type of asset in question and the residence of the donee or deceased. Below are the different alternatives depending on how the transfer of assets and rights is instrumented.
Via inheritance:
Via donation:
However, in cases where it is possible to opt for either state or regional regulations, it is essential to have prior tax advice and planning in order to be able to benefit from the different tax reductions and credits applicable to the specific case. This is because several variables come into play that must be considered to achieve tax optimization in accordance with the law.
Example of an acquisition by inheritance:
A father residing in Germany leaves as an inheritance to a son residing in Barcelona a property located in Munich with a real value of 500,000 euros.
In the present case, the heir may choose either to apply Catalan regional law or state law.
a)State regulations: the state tax rate will be applied, which, in general terms, ranges between 7.65% and 34%. However, it is possible to apply a reduction if the property was the deceased's habitual residence. The reduction will be 95% of the value of the home, but with a limit per person of €122,606.47.
Taxation in ISD: 500,000-122,606.47 = €377,393.53 on which the tax rate will be applied, which would give rise to a tax liability of €75,202.16.
Finally, it should be noted that the state regulations only provide for two tax allowances in the tax quota (those relating to goods acquired in Ceuta and Melilla and for double taxation). For this reason, it is advisable to analyse the option of taking advantage of the regional regulations that will be exemplified in the following letter.
b) Regional regulations: the regional tax rate will be applied, which, in general terms, ranges between 7% and 32%. However, it is possible to apply a reduction if the property was the deceased's habitual residence. The reduction will be 95% of the value of the property, but in this case, the individual limit of the reduction is increased to €180,000.
Taxation in ISD: 500,000-180,000=€320,000 on which the tax rate will be applied. This would give rise to a fee of €43,400.
Important: The heir must keep the property within his or her assets for a period of 5 years to consolidate the reduction, i.e., he or she will not be able to transfer the property to third parties, unless the proceeds of the sale are used to acquire his or her own habitual residence.
Likewise, Catalonia contemplates a tax allowance on the tax quota calculated based on the weighted average percentage resulting from the application of special rates that, in general terms, range between 60% and 28.92% of the taxable base. In the present example:
43,400 * 54.375%= 23,598.75€
Fee to be paid:
43,400-23,598.75 = €19,801.25
Example of an acquisition by gift:
A father residing in Colombia leaves money in the amount of 210,000 euros to a son residing in Barcelona for the acquisition of his habitual residence.
The regional regulations where the donee resides, i.e. Catalan regional law, will apply to this operation. In this sense, we can take advantage of the reduced rate (5% according to the amount donated) in view of the fact that he is a descendant belonging to Group II of kinship and the deduction of 95% - with his specialties - may be applied for allocating the money to the acquisition of his main residence, as long as the requirements required by law are met:
a) Donation by public deed within one month of receipt of the money
b) Express proof in the deed that the money will be used to acquire a main residence
c) The donee must be under 36 years of age, unless he or she has a degree of disability equal to or greater than 65%
d) The amount of the donee's taxable base in Personal Income Tax for the last period must be equal to or less than 36,000 euros (excluding the personal and family minimum)
e) Acquire the property within 3 months of formalizing the gift.
For the purposes of consolidating the reduction, the following temporary requirements must be met:
a) The donee must reside in the home for a continuous period of 3 years
b) Entry and effective residence within 12 months of the acquisition of the property
In this sense, and assuming that in the present case the donee complies with the above, the tax to be paid will be €7,500.
Finally, it should be borne in mind that Spain has signed agreements to avoid double taxation in this tax only with France, Greece and Sweden. When applicable, it is essential to review these agreements, since they contain specific provisions that may condition the taxation in the ISD and must be applied in accordance with what has been agreed.
In short, the taxation of inheritances and donations of assets abroad can be complex, especially when considering the options between state and regional regulations, as well as the existence of international agreements. Proper advice allows you to optimize taxation, avoid errors and comply with all tax obligations without unexpected surprises.
July 2025
IP/MEDIA
The Spanish National Commission for Markets and Competition Fines the SGAE 6.4 million Euros for Abuse of Dominant Position
FLORENCIA ARREBOLA
Senior Associate
In a recent resolution (S/0641/18), the Spanish National Commission for Markets and Competition ("CNMC") sanctioned the Society of Authors and Editors ("SGAE") with a fine of €6.4 million for anti-competitive practices following a series of complaints from some of its competitors who accused the SGAE of "imposing" flat rates for the use of its repertoire (regardless of actual usage), discouraging their customers from contracting with competitors (the "Resolution").
I. Background
The Resolution derives from two complaints filed by Audiovisual Media Authors’ Management Entity (Dama) and Unison Rights, S.L. (Unison), which pointed out irregularities in the design and application of the SGAE´s tariffs. These complaints pointed out that radio, audiovisual and television operators could not choose rates based on the actual repertoire usage, since the alternatives offered were unaffordable compared to the flat rate.
According to the Resolution the SGAE presented its repertoire as universal and offered indemnity guarantees against third- party claims, which further discouraged customers from contracting with competitors.
These practices contributed to create barriers for the entry and expansion of new copyright management entities in the markets for the assignment of usage rights for reproduction and public communication of musical works for:
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Audiovisual and radio communication services; and
- The television communication services.
II. Resolution Analysis
The CNMC justified the fine by virtue of two forms of abuse of dominant position, supported by Articles 2 of the Spanish Antitrust Law ("LDC") and 102 of the Treaty on the Functioning of the European Union ("TFEU"):
i. Exploitative abuse:
The SGAE designed average availability rates (i.e. flat rate), which became the only viable option for radio, audiovisual and television operators contracting its services, since the alternatives based on actual use (i.e. variable rate) were excessively onerous, discouraging their contracting.
This situation "forced" radio, audiovisual and television operators to pay prices unrelated to the actual usage of the SGAE's repertoire, exploiting its dominant position in the market to the detriment of their customers.
ii. Exclusionary abuse:
The tariff structure applied by the SGAE discouraged the contracting of alternative repertoires offered by competitors.
In the case of musical rights, this exclusionary effect was reinforced by the presentation of its catalog as universal and by offering indemnity guarantees against third-party claims. These practices hampered competition, consolidating the SGAE's monopoly in this market and restricting the plurality of competitors.
III. Sanction
The CNMC considers that the conducts carried out by the SGAE should be sanctioned with the following fines:
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EUR 3,954,364, for abuse of dominant position in the management of music copyrights for the design and application of flat rates and for practices relating to the presentation of its repertoire as universal, granting an indemnity against third party claims, applicable from January 01, 2016, until January 26, 2024; and
- EUR 2,433,455, for abuse of dominant position in the management of audiovisual copyrights through the design and application of flat rates, applicable from January 01, 2016, to December 31, 2017.
For the purposes of calculating the sanctions, the CNMC has considered the seriousness and continuity of the conduct carried out by the SGAE.
IV. Conclusions
(i) The Resolution focuses on the need to ensure competitive markets. In this sense, the CNMC has taken a firm stance by sanctioning practices that have distorted competition and reinforced the SGAE's monopoly in the copyright management services market.
(ii) The Resolution highlights the importance of establishing tariffs that reflect actual repertoire use by copyright management entities, avoiding abusive practices such as the imposition of flat rates.
(iii) The Resolution argued that the SGAE restricted the ability of radio, audiovisual and television operators to negotiate more favorable rates with their competitors, which limited the plurality of supply in the copyright management services market.
(iv) The Resolution aims to send a message about the need for transparency in the tariffs and commercial conditions that copyright management entities offer to their clients.
(v) Finally, it is important to be aware of whether the SGAE appeals the Resolution in court and whether the courts confirm, modify or revoke the sanction imposed by the CNMC.
July 2025