1. EU Framework - What it regulates

Distance marketing of consumer financial services = any financial service (banking, credit, insurance, investment, pension, payment services) concluded between supplier and consumer without simultaneous physical presence, using means of distance communication - internet, phone, email.

Directive 2002/65/EC - Core principles (still in force until 19.06.2026):

1. Pre-contractual information: Art.3-5. Supplier must provide, in good time before consumer is bound: identity of supplier and intermediary, description of financial service, total price, taxes, risks, payment arrangements, existence of right of withdrawal, contract duration, law applicable, out-of-court redress.
2. Communication conditions: Information must be on paper or another durable medium, in clear comprehensible manner, in the language of the Member State.
3. Right of withdrawal: 14 calendar days general, 30 days for life insurance and personal pensions. Without penalty, without giving reason. Period starts from conclusion of contract or receipt of terms. Exception: if consumer was not informed about right of withdrawal, period extends to 12 months + 14 days (implemented in Spain).
4. Exceptions to withdrawal: Art.6(2): services whose price depends on financial market fluctuations (forex, securities), short-term travel insurance, fully performed contracts at consumer's request, etc.
5. Prohibition of unsolicited services and communications: No inertia selling. No unsolicited calls/emails without prior consent under e-Privacy rules.

Directive (EU) 2023/2673 - What changes fundamentally:

It abandons the separate financial services directive and creates a new Chapter in Directive 2011/83/EU on Consumer Rights.

Key novelties:

A. Modernised pre-contractual duties:

• Information must be provided prominently, with layering allowed.
• Warning about automated decision-making and profiling.
• Human intervention button: consumer must be able to request human intervention if contract concluded via fully automated interface.

B. Adequate explanations: Art.16d - Supplier must provide adequate explanations on proposed contract, assessing consumer needs, free of charge, adapted to online.

C. Right of withdrawal reinforced:

• Supplier must provide a withdrawal function / withdrawal button - same interface where contract was concluded, easily findable, labelled "Withdraw from contract" and available for entire withdrawal period.
• Withdrawal must be confirmed on durable medium without undue delay.
• If supplier uses dark patterns to make withdrawal difficult, penalty.

D. Ban on dark patterns: Art.16e - Prohibition to design, organise or operate online interfaces in a way that deceives, manipulates or materially distorts ability to make free decision. Pre-ticked boxes, making cancellation harder than subscription are explicitly banned.

E. Additional protections for online marketplaces.

Transposition: Member States had to adopt laws by 19 Dec 2025, apply from 19 June 2026.

2. Spain - Implementation

A. Current law: Ley 22/2007, de 11 de julio, sobre comercialización a distancia de servicios financieros destinados a los consumidores.

This transposed Directive 2002/65/EC, three years late.

Structure almost identical to Directive:

• Art.4-8: Pre-contractual information - supplier identity, financial service characteristics, price inclusive of commissions, validity of offer, right of withdrawal form.
• Art.9: Right of information after conclusion - contract terms on durable medium.
• Art.10: Derecho de desistimiento - 14 días naturales, 30 días for vida. Model withdrawal notice mandatory.
  • Art.10.2 exceptions: copy of Directive list - services whose price depends on market fluctuations (Art.10.2.a) - forex, derivatives, securities - this is why many trading platforms exclude withdrawal; insurance <1 month, contracts fully executed at express request of consumer.
• Art.11: Payment for service started before withdrawal - only proportional payment if consumer expressly requested early performance.
• Art.12-13: Prohibition of unsolicited services and communications, aligned with LSSI and LGTel.
• Art.18-19: Sanctions - infracción de consumo grave, competence of Bank of Spain, CNMV, DGSFP.

In practice Spanish law is applied together with:

• RDL 1/2007 TRLGDCU (general distance contracts)
• Ley 16/2011 de contratos de crédito al consumo (for credit)
• Ley 10/2014 de ordenación bancaria and Circular Banco de España transparency rules

B. New Spanish transposition 2025-2026:

Anteproyecto de Ley de Servicios de Atención a la Clientela + Ley de transposición de Directiva de Crédito al Consumo y Directiva de Servicios Financieros a Distancia.

Main changes expected in Spain:

1. Ley 22/2007 will be repealed, content moved to new Título in TRLGDCU Art.92 bis to 93 ter.
2. Withdrawal button mandatory for all Spanish financial entities, including neobanks.
3. Banco de España will supervise dark patterns.
4. Sanctions aligned with new 2023/2225 - up to 4% turnover for widespread infringements.

As per Osborne Clarke note on Spain: new protections include withdrawal button and anti-dark-pattern measures.

3. Case Law - EU and Spain

CJEU Leading Cases:

1. C-49/11 Content Services Ltd (2012) - Durable medium
Website where information is only made available via hyperlink is NOT durable medium. Consumer must be able to store information unchanged. This was critical for e-banking disclosures. Foundation for later BAWAG.

2. C-375/15 BAWAG PSK Bank v Verein für Konsumenteninformation (2017) - Electronic mailbox in e-banking
Can bank notify contractual changes via inbox inside e-banking portal? CJEU: Yes ONLY if:

• System allows consumer to store information beyond contractual relationship,
• Consumer is forced to actively consult mailbox (push notification by email not enough unless ensures actual knowledge),
• Information remains unchanged and accessible for adequate period. Many Spanish banks had to change their "buzón" system after this.

3. C-375/13 BAWAG and C-449/13 CA Consumer Finance - Withdrawal information
If contract does not inform clearly about start of withdrawal period, withdrawal period never starts - consumer has unlimited withdrawal. This led to thousands of German and Spanish mortgage credit cases.

4. C-26/13 Kásler and C-186/16 Andriciuc - Unfair terms in forex loans
Although under Directive 93/13, these cases overlap with distance selling because pre-contractual information duty on currency risk must be clear. Spanish Supreme Court applied this to multidivisa mortgages: STS 608/2017.

5. C-776/19 BNP Paribas Personal Finance and C-143/22 - Right of withdrawal in linked credit
CJEU ruled that if lender fails to properly assess creditworthiness AND fails to provide withdrawal information, national court must provide effective remedy, potentially extending withdrawal.

6. C-536/20 TikTok and C-564/24 (2024-2025) - Abuse of withdrawal right
CJEU clarified withdrawal right granted only once for subscription with free trial converting to paid. Also: withdrawal right cannot be used abusively to obtain undue advantage, but trader must prove abuse.

Spanish National Case Law:

a) STS Sala Civil 168/2015, 4 May 2015 - Ley 22/2007 applies cumulatively with banking transparency.
Supreme Court held distance marketing rules do not displace Orden EHA/2899/2011 transparency obligations. Bank must comply with both.

b) SAP Madrid 12/2019 - Forex CFDs sold by phone
Consumer contacted by cold call, opened trading account. Audiencia held contract null because supplier failed to provide pre-contractual info on durable medium before execution and did not inform about exception to withdrawal under Art.10.2.a. Fine imposed.

c) STS 13/2020 and STS 81/2021 - Revolving credit marketed online (Wizink, Cofidis)
Supreme Court considered distance contracts valid but declared interest usurious. Importantly, confirmed that 14-day withdrawal period starts from receipt of contractual conditions on durable medium, not from click.

d) SJPI Barcelona (Juzgado) numerous 2022-2023 - Crypto platforms
Application of Ley 22/2007 to crypto not yet MiCA: courts considered crypto-assets financial service for distance purposes, withdrawal not excluded unless price depends on market fluctuation - created contradictory rulings, now clarified by 2023/2673 which includes crypto in scope if financial service.

Practical checklist for compliance in Spain today and after June 2026:

1. Provide layered pre-contract info BEFORE order, downloadable PDF.
2. Provide durable medium after.
3. Ensure withdrawal button same as purchase path.
4. No pre-ticked insurance cross-sells.
5. Log consent for telephone marketing (Art.21 LGTel).
6. If you exclude withdrawal under market fluctuation, expressly state Art.10.2.a Ley 22/2007 and obtain express acknowledgment.

If you want, I can draft a memo comparing Art.10 Ley 22/2007 vs new Art.16b-16f of Directive 2023/2673 with model withdrawal clauses for Spain.