Home

Conference on the Modernization of Disability Treatment

On June 16, 2022, the conference organized by Gállego & Builla together with the Ferreras office on the innovative treatment of disability contained in Law 8/2021, of 2 of June. We appreciate to the speakers who have made it possible: the Prosecutor Mrs. Emma González, the Judge Mr. Daniel Tomás and the Notary Mr. José Luís Espinosa. Thanks also to the numerous attendees for their interest and participation.

SELF-EMPLOYED: BENEFIT DUE TO CESSATION OF ACTIVITY

The Royal Decree-Law 8/2020, of March 17, of extraordinary urgent measures to face the economic and social impact of COVID-19 (RDL), foresees in its Article 17 the extraordinary benefit for cessation of activity for those affected by the declaration of a state of alarm for the management of the health crisis situation caused by COVID-19, in order to protect the temporary cessation or decrease of the activity caused by an inadvertent situation in any case.

This feature extraordinary extends to all self-employed, yes whether or not they are protected for the benefitof cessation of activity foreseen in the Law General Social Security (LGSS), provided they meet the conditions and requirements set forth in its regulation, thereby trying to protect the entire collective in view of the exceptional situation agreed for the protection of all the citizens.

With the object of avoid doubts that the application of article 17 of the aforementioned RDL could arouse, the Directorate General for the Organization of Social Security he has adopted on Criterion 5/2020, of March 20, whose tenor is the following:

One. Subjective scope of application:

The field subjective application of the RDL corresponds to that provided for in the Article 305 of the LGSS, causing the right to this extraordinary benefit, regardless whether they have contributed or not due to the contingency of cessation of activity. THIS IS APPLIES TO WORKERS OF THE SELF-EMPLOYED REGIME.

Two. Requirements:

The requirements established in article 17.1 of the RDL to access the right to extraordinary benefit for cessation of activity that is regulated in this article, both for self-employed workers own or self-employed whose activities are suspended, as for the workers whose billing in the month prior to the request for the benefit is reduced by at least 75% in relation to the average of billing from the previous semester, as a consequence of the provisions of the Royal Decree 463/2020, of March 14, declaring the status of alarm, are as follows:

  • Be affiliated and registered, on the date of the declaration of the state of alarm, in the Special Regime of the Social Security of the Workers by Self-Employed or Self-Employed (RETA) or, where appropriate, in the Special Regime of the Social Security for Sea Workers (RETMAR).
  • On the assumption that your activity is not directly suspended by virtue of the provisions of the Royal Decree 463/2020, certify the reduction of its billing in, at less, 75%, in relation to the one made in the previous semester.
  • Be up to date in the payment of dues to Social Security. However, if on the date of the suspension of activity or reduction of billing is not If this requirement is fulfilled, the managing body will invite the worker to pay autonomous so that within the non-extendable period of 30 calendar days fees due. The regularization of the overdraft will produce full effects for the acquisition of the right to protection.

These Requirements need to delimit the following extremes:

1. Royal Decree 463/2020, by which the state of alarm is declared, in accordance with what is indicated in its third final provision, entered into force at the time of its publication in the "Official State Gazette", March 14, 2020, so this is the date to which the requirement of letter a) of article 17.1 of the RDL refers.

By so much, the Applicant, as of March 14, should be affiliated and registered in the RETA or, in your case, in the RETMAR.

2. The reduction of turnover in the calendar month prior to the request it must be at least 75%, to tenor of what is indicated in article 17.1, in relation to the average carried out in the calendar semester prior to the declaration of the state of alarm, which must be accredited in the terms established in section three.

When the self-employed worker has not been registered for the 6 calendar months required to prove the reduction in income, the valuation will be carried out taking into account the period of activity.

3. The deadline to request the benefit It is 1 month from the entry into force; therefore, ends on April 14, without prejudice that if the extension of the state of alarm was agreed by the Government can modify the measures adopted, in accordance with the provisions of the tenth final provision of the RDL, which establishes that "the measures provided for in this royal decree-law will remain in force during the period of one month from its entry into force, without prejudice to the fact that, After evaluating the situation, its duration can be extended for the Government by royal decree-law.

Three. Documentation:

The Accreditation of the reduction in billing will be done through the provision of accounting information that justifies it, which can be done at Through the copy of the record book of invoices issued and received; of the journal of income and expenses; of the sales and income record book; or of the purchase and expense book.

Those self-employed workers who are not required to keep the books that prove the volume of exercise, shall credit the reduction at least 75% required by any means of proof admitted in law.

All application must be accompanied by an affidavit in which it is stated that meet all the requirements to be entitled to this benefit.

THE PROCESSING / APPLICATION HAS TO POSE BEFORE THE MUTUAL OF EACH SELF-EMPLOYED

Four. Amount of the benefit:

When in the case of self-employed workers who have the deficiency to cause the right to the benefit for cessation of activity provided for in the LGSS, the amount of the The benefit will be determined by applying 70% to the regulatory base, calculated from in accordance with the provisions of the article 339 of the LGSS.

When The minimum contribution period is not credited to qualify for the benefit, the amount of the benefit will be equivalent to 70% of the base minimum contribution of the activity carried out by the self-employed worker in the RETA or, where appropriate, in the RETMAR.

Regardless whether or not the self-employed person meets the minimum contribution period, the The amount of the benefit will always be subject to the limits of the Article 339.2 of the LGSS.

Five. Registration and quotation:

During the period of receipt of the benefit extraordinary due to cessation of exercise the self-employed worker who suspends the activity will not be obliged to process the short. Yes the cause of the right to the benefit is the reduction of the turnover in the month prior to which the benefit is requested by 75% in relation to the one carried out in the previous semester, shall remain, in any case, high in the corresponding regime of Social Security.

During the period of receipt of this benefit there will be no obligation to contribute.

Respect of The fees already entered and can be entered, including, in your case, only surcharges, default interest and costs that have been paid or can be paid, and overlap with any of the days of the period for which they are entitled to the provision of an exceptional nature, will be returned at the request of the interested. its request should be formulated together with the request for the exceptional benefit, and must be accompanied to such an effect the documents proving your payment and without it being able to be requested once deadline expired. Yes The one who was entitled to the refund was a debtor of Social Security for quotas corresponding to other periods or for other system resources, the Credit for the refund will be applied to the payment of outstanding debts with that in the way that legally proceeds.

Elapsed the temporary effects of these measures, the benefits in the quotation that in your case I know come enjoying previously to the granting of this benefit.

Six. Duration:

The Extraordinary benefit for cessation of activity will have a duration of 1 month, extending, where appropriate, until the last day of the month in which the state of alarm, in the event that it is extended and lasts more than a month, provided that the requirements for your concession.

Seven. Benefits of your concession:

The The granting of this benefit will not reduce the benefit periods for termination of activity to which the beneficiary may be entitled in the future.

The weather during the one receiving the extraordinary benefit for cessation of activity is understood as listed for both common contingencies and contingencies professionals, as well as by cessation of activity for those who came doing it at the time of requesting the benefit.

Eight. Incompatibilities:

Do not the right to this benefit will be self-employed that they came perceiving a benefit or have the right to another benefit of the Social Security System, whether you perceive it or not.

Nine. Concurrence with the proceedings of suspension of contracts and reduction of day by reason of being linked to COVID-19:

When concur the processing of the procedure referred to in this Criterion with the procedures for suspension of contracts and reduction of working hours linked to COVID-19, the worker self-employed at the time of submitting the request for the exceptional benefit You must attach a copy of the start of the actions aimed at its processing.

RECOVERABLE PAID LEAVE

Between the measures adopted by the Government in Royal Decree-Law 10/20, of March 28 there is the configuration of a “recoverable paid leave”. A "permission forced” in order to put the economy in a state of lethargy, and force people to stay at home, because they will no longer have the excuse of work to go out to Street. This measure occurs between March 30 and April 9, which implies between 40 or in your case 38 hours to recover for the first week and for the second between 32 and 28 hours approximately depending on the working day that you set each applicable agreement. Starting from a 40-hour workweek, they would have to make up 72 hours of work, now well given the meagerness of the standard it is likely that everyone will have doubts about how it should be said recovery.

The first that the norm tells us that the recovery will have to be negotiated between the representatives of the workers and the company, and the only limits states are that the recovery of hours cannot behave:

curiously It is not mentioned in the regulation, the respect of the annual vacation periods paid, (art. 38 ET), ignoring, if the government has understood as weekly rest is basic, but not the vacation period for the purposes of recoveries. If there is no correction of the rule in the next days will have to be understood in the affirmative sense.

  1. Failure to comply with the minimum periods of daily and weekly rest provided for in the law and in the collective agreement.
  2. The establishment of a notice period lower than that contained in article 34.2 of the Law of the Statute of Workers This is that Workers must know at least five days in advance when they have to make up those hours.
  3. The exceeding the maximum annual working hours provided for in the collective agreement of application. Likewise, the rights of conciliation of the personal, work and family life recognized legally and conventionally.

Result evident that the recovery of said hours will depend on each sector of activity, and the productivity of workers should be taken into account, because it is evident that in a 40-hour week from Monday to Friday, doing one or two extra hours per day, it will not bring great benefit to the company in terms of productivity of these hours, as has been endorsed by numerous studies. There will be sectors where work can be agreed, for example, in the mornings of on Saturdays, or there will be others who seek to reduce vacation time, It will be in the next few days that we will see how the recovery of these hours.

MORTGAGE MORATORY APPLICATION

In Vigo on ………… .. March 2020

Entity

Office

Dear sirs,

The referred loan is linked to the account of which I am the owner in this entity number……………………….

I send you this writing in relation to the mortgage loan that I have subscribed with you by virtue of deed granted before the Notary Mr. ……. on date ……. With the number ... of your protocol and that taxes my habitual residence located in …….

The current situation in relation to COVID-19 has caused that, currently, I can not meet the mortgage payment, reason why, in accordance with the Royal Decree Law 8/2020 of March 17, I request the MORATORIUM provided for in articles 7 and following.

To this end, I indicate that I am in the following vulnerability assumption of those provided for in the Royal Decree: (PUT WHATEVER PROCEEDS)

a) That the mortgage debtor becomes unemployed or, if you are an entrepreneur or professional, suffer a substantial loss of your income or a substantial drop in your sales. In this sense I must indicate to you that …………… unemployment / lost income / fall in sales ………………….

b) That the total income of the members of the family unit does not exceed, in the month prior to the request for the moratorium: the limit of three times the Public Indicator of Income of Effects Multiple monthly (hereinafter IPREM)1.

c) That the mortgage payment, plus the expenses and basic supplies, is greater than or equal to 35 percent of the net income received by all members of the family unit.

d) That, as a consequence of the emergency health, the family unit has suffered a significant alteration of its economic circumstances in terms of the effort to access housing, in the terms that are defined in the next point. In this sense I must indicate to you that………load mortgage increased by 1.3% / sales decrease by 40% …………….2

For the purposes of accrediting the above situation, I attach the following documentation:

a)In case of legal situation of unemployment, by means of a certificate issued by the managing entity of the benefits, which includes the monthly amount received in concept of unemployment benefits or subsidies.

b) In case of cessation of activity of self-employed workers own, by means of a certificate issued by the State Agency of the Tax Administration or the competent body of the Autonomous Community, in your case, based on the declaration of cessation of activity declared by the interested.

c) Number of people living in the living place:

i. Family book or document accrediting domestic partner.

ii. Certificate of registration relative to the persons registered in the dwelling, with reference to the moment of the presentation of the supporting documents and after six months previous.

iii. Declaration of disability, of dependency or permanent disability to carry out a work activity.

d) Ownership of the goods:

i. Simple note from the index service of the Property Registry of all members of the family unit.

ii. Deeds of sale of the housing and mortgage loan granting.

e) Responsible declaration of the debtor or debtors regarding compliance with the requirements to be considered without sufficient financial resources according to this royal decree-law. [Request it from the entity]

All of the above, Please proceed to implement the requested measure, within the period determined in the Royal Decree-Law, with all the legally established effects.

Sincerely,

EXPLANATORY NOTES: IPREM = 537,84 €, (These minimums are increased: by 0.1 times the IPREM for each dependent child in the family unit.
The applicable increase per dependent child will be 0.15 times the IPREM for each child in the case of a single parent family unit.
The IPREM is increased by 0.1 times for each person over 65 years of age who is a member of the family unit.

If any of the members of the unit family member has a declared disability greater than 33 percent, situation of dependency or disease that permanently incapacitates you to carry out a work activity, the limit will be four times the IPREM, without prejudice to the accumulated increases per dependent child.

If the mortgage debtor is a person with cerebral palsy, with mental illness, or with intellectual disability, with a recognized degree of disability equal to or greater than 33 percent, or person with physical or sensory disability, with a degree of disability recognized equal to or greater than 65 percent, the limit will be five times the IPREM.

Significant alteration is understood when the effort represented by the mortgage burden on family income has been multiplied by at least 1.3. It is understood that a substantial drop in sales when this drop is at least 40% and understands By family unit the one made up of the debtor, his spouse or separated legally or registered domestic partner and children, regardless of their age, who reside in the home, including those linked by a relationship of guardianship, guardianship or foster care and their spouse not legally separated or Registered domestic partner, residing in the home

THE EUROPEAN DATA PROTECTION REGULATION RUNS THE BUSINESS CARDS

One of the novelties of the European Data Protection Regulation is that it includes within its scope of protection the data of natural persons, when they act in their capacity as professionals or businessmen, as well as those data of natural persons of contact of legal persons.

To this novelty must be added the fact that data processing requires a explicit consent. The new regulation raises several questions: When a salesperson enters the door with a card in hand, do I have to give him or her a consent sheet to sign? If you are a commercial / staff of a company I work with, do you still have to sign a consent form?

The answer is yes !, and as long as the new Law that is in the project phase does not come out, and let's see if it gives any solution in this regard, the truth is that if they give us a visiting card, with the current regulations, we must collect consent and inform each of the extremes of art. 13 of the GDPR.

It goes without saying that what happens with the cards can be extrapolated to all cases of contact data of legal persons through their employees.

Thus, and with the current regulations in hand, if things are not changed, we will have to go through the paper shredder the card holder with all the cards inside, and refrain from taking any card from anyone in the business environment.

Program for the recruitment of unemployed women, co-financed by the OP ESF Galicia 2014-2020

Publication in the DOGA of aid for the permanent hiring of unemployed women.

https://www.xunta.gal/dog/Publicados/2018/20180627/AnuncioG0424-120618-0001_gl.html

EXTRACT of the Order of June 7, 2018 which establishes the regulatory bases of a program for the recruitment of unemployed women, co-financed by the OP ESF Galicia 2014-2020, and training, and proceeds to its call for the year 2018.

INDEMNIFICATION OF A TEEFÓNICA OPERATOR FOR INCLUDING A CUSTOMER IN A LIST OF PAYMENTS

On March 23, 2018, the First Civil Chamber of the Supreme Court sentenced a debt claim company to compensate with 10,000 euros for moral damages to a woman whose data it included in two records of defaulters for uA debt of 297 euros that Vodafone claimed from her in relation to mobile phone services, and with which she disagreed, since this was a violation of her right to honor. The consumer affected in the case under trial went to request a credit card from Banco Popular and was denied because it was included in a delinquent file. This motivated him to file the corresponding claim, which was upheld at first instance but was dismissed by the Oviedo Court. Finally, the Supreme Court (rapporteur Rafael Saraza) has agreed with him, condemning compensation by applying the Principle of data quality, which implies the inadmissibility of including personal data related to alleged doubtful debtors in the delinquent records. The Supreme Court emphasizes that it is not possible to include in this type of file those who "legitimately disagree with the creditor regarding the existence and amount of the debt", as occurred in this case.

The “data quality principle” means that data must be accurate, adequate, relevant and proportionate for the purposes for which it was collected and processed. As the STS of March 23, 2018 analyzed today, the art. 4 of the Organic Law on the Protection of Personal Data (hereinafter, LOPD), by developing both art. 18.4 of the Constitution as the standards of Convention no. 108 of the Council of Europe and Directive 1995/46/CE, of October 24, of the European Parliament and of the Council of the European Union, on the protection of natural persons with regard to the processing of personal data and the free movement of these data, requires that the personal data collected for its treatment be adequate, pertinent and not excessive in relation to the scope and the specific, explicit and legitimate purposes for which they have been obtained, accurate and updated in a way that responds truthfully to the current situation of the affected party, and prohibits their use for purposes incompatible with those for which the data had been collected.

The quality of the data does not only refer to its veracity, a mobile phone debt can be true and exact for a mobile phone company, but if the debt is controversial, because the owner of the data legitimately considers that it should not what is claimed, the lack of payment is not indicative of the insolvency of the affected party and, therefore, in this case, like the defendant, inclusion in a delinquent file is undue and compensable by way of the right to honour. Let us not forget that the purpose of the automated file is not the simple verification of the debts, but the patrimonial solvency of those affected

In the Judgment under study, individuals are not required to have the same professionalism and exhaustiveness in their relations with companies as is required of them, as a result of their professionalism and regularity in commercial traffic. Therefore, if the consumer proves that he has claimed the amount claimed, showing his disagreement, without prejudice to the right that the company has to claim his payment, such credit cannot give rise to the inclusion of the client's data in a register of defaulters. , given the serious consequences that such inclusion has for the moral and patrimonial sphere of the person affected by said data processing. And precisely those consequences are what have given rise to compensation to the consumer for having been included in the delinquent file.

As is the case with mobile telephony, it is not the company itself that claims these amounts due and not peaceful, but they assign their credit to other companies that are dedicated to including consumers in the delinquent files. In this case, the Supreme Court also expressly resolves that said assignment of credit does not protect the inclusion in the file of defaulters, and that the assignee company must make sure that the credit is truthful and peaceful, not being able to protect itself in the assignment to act illegally. .

ACCUMULATION OF THE BREASTFEEDING PERIOD

A judgment of the Fourth Chamber, of the Social, of the Supreme Court, has declared that there is right to the accumulation in full days of the lactation leave. It is the first sentence of the Supreme issued by a tribunel made up entirely of magistrates.

The resolution states that leave for breastfeeding is a necessary relative right, which is specified in being able to be absent from work for one hour, with proportional increases in cases of multiple breastfeeding.

Collective bargaining or individual agreements can improve this right and can also establish that the leave is accumulated in full days, also guaranteeing the best protection and care of the newborn, which is what the norm seeks. In any case and with regard to the accumulation in full days, this must be calculated, at least, on the hour of absence and not on the other option - substitution by reduction of working hours.

A Bilbao court frees some parents from paying a guarantee for their son's mortgage loan

The Court of First Instance (Reinforcement) number 11 of Bilbao has freed some parents from paying their son's mortgage guarantee, considering that the bank was not very transparent and, consecuently, it has decreed, the "radical nullity" of the clause. The judge has considered that the guarantors were not sufficiently informed by the entity about the consequences of what they were signing, so it has understood that the clause that designated them as guarantors is abusive and, therefore, void.

The case tried in Bilbao was that of a young man with a discreet and unstable income who, when he asked for a mortgage in December 2005, the entity required the guarantee of his parents and siblings as collateral for the loan. When the mortgatee began to have trouble paying, the bank wrote to his parents warning them that he could foreclose on their home. Faced with this notice, the young man's father, fearful of losing his own home, began to pay his son's mortgage payments.

Now, the Court of First Instance number 11 of Reinforcement of Bilbao has ruled in favor of that Barakaldo family on understanding that the guarantee was abusive and that the bank "did not explain well to the parents and siblings" what it implied.

Source of the news: Power of attorney

The Supreme Court sets criteria on the margins of error for speed cameras

The Criminal Chamber has established that mobile traffic radars that measure speed from a fixed location, on tripods or in stationary cars, have a margin of error of 5% and not 7%, for what attributes to this type of devices the same percentage as to fixed ones. With this criterion, the court has dismissed the appeal filed by a driver, who was recorded by a radar when he was driving at 214 km / h on the AP-68 In the case raised in this appeal -the magistrates point out- This percentage is relevant, because, depending on the margin of error that is applied, the driver can be acquitted or convicted.

The conclusion reached by the magistrates of the Criminal Chamber is that "If the measuring device, kinemometer, is used from a fixed location, that is without movement, whether fixed or static, the margin of error is 5%", and they further affirm that this cataloging is "logical" because "the measurement of speed, from a fixed radar, or from an installation without movement, supposes a smaller margin of error than the measurement made from a moving device".