Affiliate Agreement Spain (Acuerdo de Afiliados)

An Affiliate Agreement Spain (Acuerdo de Afiliados) governed by Código Civil Article 1255 and Ley 34/2002 de Servicios de la Sociedad de la Información y de Comercio Electrónico (LSSI-CE) is a commercial contract between a merchant (anunciante or comerciante) and an affiliate (afiliado) under which the affiliate promotes the merchant's products or services through digital channels — websites, social media, email marketing, or other online platforms — and receives a commission (comisión) for each qualifying sale, lead, or other commercial action generated through the affiliate's promotional activity. Article 1255 of the Código Civil establishes the principle of freedom of contract (libertad de pactos) — parties may agree to any terms not contrary to law, morality, or public policy — supplemented by the mandatory provisions of Ley 34/2002 governing commercial electronic communications in Spain.

Affiliate marketing in Spain operates within the regulatory framework established by Ley 34/2002, which requires that commercial communications sent electronically (comunicaciones comerciales por vía electrónica) be clearly identified as such, that the identity of the sender (anunciante) be disclosed, and that recipients have the ability to opt out of future communications under Articles 19 through 22 LSSI-CE. The Reglamento (UE) 2016/679 (RGPD) and Ley Orgánica 3/2018 (LOPDGDD) apply where the affiliate processes personal data of end consumers — a highly relevant consideration in lead generation and email marketing affiliate programmes managed through Spanish platforms or targeting Spanish data subjects.

The Acuerdo de Afiliados must also comply with Ley 3/1991 de 10 de enero, de Competencia Desleal, which prohibits misleading advertising, imitative practices, and other unfair commercial practices that could arise from affiliate promotional activity. The Ley General de Publicidad (Ley 34/1988) and its modifications under Ley 29/2009 additionally apply to advertising content created by affiliates, requiring that advertising be identified as such (principio de veracidad publicitaria) and prohibiting subliminal advertising under Article 4 LGP. The Comisión Nacional de los Mercados y la Competencia (CNMC) monitors compliance with advertising and consumer protection rules and has published specific guidance on influencer marketing disclosures that applies to many affiliate arrangements.

The Spanish tax authority (Agencia Tributaria) treats affiliate commissions as business income. Affiliates operating as autónomos (self-employed) must be registered in the Censo de Empresarios, Profesionales y Retenedores and include the commission income in their declaraciones trimestrales de IVA (Modelo 303) and IRPF retenciones (Modelo 130). Merchants making commission payments to Spanish-resident affiliates who are autónomos must apply income tax withholding (retención a cuenta del IRPF) at 15% (or 7% for new autónomos in the first three years) and report quarterly through Modelo 111 and annually through Modelo 190 to the Agencia Estatal de Administración Tributaria (AEAT).

The Acuerdo de Afiliados must address intellectual property rights under the Ley de Propiedad Intelectual (Real Decreto Legislativo 1/1996 — TRLPI) and Ley 17/2001 de Marcas — the affiliate must be granted a limited licence to use the merchant's trademarks and promotional materials for the specific purpose of promotion under the agreement, without acquiring any ownership rights in the merchant's brand. The Oficina Española de Patentes y Marcas (OEPM) maintains the register of Spanish trademarks and the agreement must specify the conditions and limitations of the IP licence to avoid disputes over unauthorised use.

The Reglamento (UE) 1215/2012 (Bruselas I bis) on jurisdiction and Reglamento (CE) 593/2008 (Roma I) on applicable law govern cross-border affiliate arrangements where the affiliate is based in another EU member state or a third country. Spanish law (Código Civil, LSSI-CE, and applicable sector regulations) must be designated as governing law in the agreement to confirm that Spanish courts (Juzgados de lo Mercantil) have jurisdiction over disputes arising from the affiliate relationship and that Spanish consumer protection law applies where end consumers are located in Spain. The Autocontrol self-regulatory body and the IAB Spain (Interactive Advertising Bureau) coordinate industry self-regulation of digital advertising practices applicable to affiliate marketing in Spain, supplementing the mandatory legal framework of Ley 34/1988 and Ley 34/2002.

An Affiliate Agreement Spain is needed whenever a Spanish business or individual establishes a performance-based marketing arrangement with one or more affiliate partners who will promote the merchant's offerings in exchange for commission-based compensation.

The agreement is required when a Spanish e-commerce business (tienda online) establishes an affiliate programme to drive traffic or sales to its website through third-party publishers, bloggers, price comparison sites, or cashback platforms that link to the merchant's product pages under a cost-per-sale (CPS) or cost-per-lead (CPL) commission model. Spanish e-commerce businesses are regulated by Ley 34/2002 (LSSI-CE) and Real Decreto Legislativo 1/2007 (Ley General para la Defensa de los Consumidores y Usuarios — LGDCU) for consumer-facing transactions.

An Acuerdo de Afiliados is needed when a Spanish software company, SaaS provider, or subscription-based service recruits affiliate partners to refer new subscribers in exchange for recurring commissions — a structure that requires clear documentation of commission calculation, payment timing, attribution rules, and cookie duration in the tracking system. The Dirección General de Seguridad Jurídica y Fe Pública (formerly DGRN) has confirmed that digital contracts under LSSI-CE have full legal validity when accepted online.

The agreement is required when a Spanish travel agency, financial services provider, or insurance intermediary engages comparison websites or content publishers as affiliates. Financial services affiliates may require registration with the Comisión Nacional del Mercado de Valores (CNMV) under Ley 6/2023 if financial products are involved, or with the Dirección General de Seguros y Fondos de Pensiones (DGSFP) if insurance products are promoted. Non-compliant affiliate arrangements in regulated financial sectors expose both merchant and affiliate to CNMV or DGSFP administrative sanctions.

An Affiliate Agreement is needed when a merchant wishes to establish clear rules governing how affiliates may use the merchant's trademarks, promotional materials, and brand assets — confirming compliance with Ley 17/2001 de Marcas and preventing affiliates from bidding on the merchant's brand keywords in paid search campaigns (SEM), engaging in cookie stuffing, or using misleading promotional tactics contrary to Ley 3/1991 de Competencia Desleal.

The agreement is required to establish jurisdiction and governing law for disputes arising from the affiliate relationship — particularly relevant where the affiliate is located in another EU member state, requiring consideration of Reglamento (UE) 1215/2012 on jurisdiction and Reglamento (CE) 593/2008 (Roma I) on the law applicable to contractual obligations. Without a clear governing law clause, disputes with foreign affiliates may be litigated in multiple jurisdictions simultaneously.

An Affiliate Agreement Spain is also needed when a merchant operates a multi-tier affiliate programme (programa de afiliados multinivel) — where top-tier affiliates can recruit sub-affiliates and earn override commissions on their sub-affiliates' performance. Multi-tier structures must be carefully designed to avoid falling within the scope of the Ley de Venta Directa (Ley 7/1996 de Ordenación del Comercio Minorista) or pyramid scheme prohibitions under Ley 3/1991 de Competencia Desleal. The Comisión Nacional de los Mercados y la Competencia (CNMC) monitors multi-tier marketing structures for compliance with competition and consumer protection law.

A valid Affiliate Agreement Spain under the Código Civil and LSSI-CE must contain the following essential elements to be enforceable and to provide adequate protection for both merchant and affiliate.

Identification of Parties: Full legal name, tax identification number (NIF or DNI/NIE), registered address, and contact details of the merchant (anunciante) and the affiliate (afiliado). Where the affiliate is an autónomo, the NIF and RETA registration number should be stated. Where the affiliate is a company, the Registro Mercantil registration details and the name of the legal representative must be included.

Scope of Affiliate Programme: A precise description of the products or services the affiliate is authorised to promote, the geographic markets covered, the permitted promotional channels (websites, social media, email, paid search), and any restrictions on promotional methods. Prohibited practices — cookie stuffing, trademark bidding, misleading claims, artificial traffic generation — must be explicitly listed. Compliance with Ley 3/1991 de Competencia Desleal and the advertising identification requirements of Ley 34/1988 must be affirmed.

Commission Structure: The commission rate or amount per qualifying action (sale, lead, click, or subscription), the attribution model used (last-click, first-click, or multi-touch), the cookie duration determining the window within which a referral is credited to the affiliate, and any minimum performance thresholds required to earn commissions. Variable commission tiers based on sales volume should be specified.

Tracking and Reporting: The technology platform or affiliate network (red de afiliación) used to track referrals — such as TradeDoubler, Awin (formerly Affiliate Window), or a proprietary tracking system — the method for resolving tracking discrepancies, and the reporting frequency. The merchant's determination of valid conversions must be described, including the right to reject fraudulent or returned transactions.

Payment Terms: The payment currency (euros), payment schedule (monthly or quarterly), minimum payment threshold, payment method (bank transfer — transferencia bancaria — or platform payment), and the IVA (Impuesto sobre el Valor Añadido) treatment of commission invoices. Affiliates operating as autónomos must issue valid facturas (invoices) including IVA at 21% under Ley 37/1992 del IVA and the Reglamento de Facturación (Real Decreto 1619/2012). The merchant's IRPF withholding obligation at 15% (or 7% for new autónomos) under Ley 35/2006 must be documented.

Intellectual Property Licence: A limited, non-exclusive, non-transferable licence granted by the merchant to the affiliate to use the merchant's trademarks, logos, and promotional materials solely for the purpose of promoting the merchant's products or services under the agreement, subject to the merchant's brand guidelines. The licence terminates automatically upon expiry or termination of the agreement. No rights in the merchant's intellectual property are transferred under Article 43 of the Ley de Propiedad Intelectual (TRLPI). Trademarks registered with the OEPM retain all rights of the merchant as registrant.

Data Protection: Allocation of data protection responsibilities under the RGPD and LOPDGDD. Where the affiliate collects personal data of end consumers on behalf of the merchant, the affiliate acts as a data processor (encargado del tratamiento) under Article 28 RGPD, requiring a separate data processing agreement (DPA). Affiliates acting as independent data controllers must provide their own privacy notice to data subjects. Cookie consent compliance under Article 22.2 LSSI-CE and AEPD guidance must be addressed. The Agencia Española de Protección de Datos (AEPD) supervises GDPR compliance and has issued significant fines for non-compliant cookie implementations in affiliate marketing contexts.

Disclosure Obligations: A clause confirming the affiliate's obligation to clearly identify promotional content as advertising in accordance with Articles 19–22 LSSI-CE and the CNMC's 2021 guidance on influencer marketing disclosures. Content marked with 'publicidad', 'contenido patrocinado', or equivalent disclosures in each sponsored post or article.

Duration and Termination: The initial term and renewal mechanism, the notice period for termination without cause, and the grounds for immediate termination (terminación por causa justificada) including breach of brand guidelines, fraudulent activity, or violation of applicable advertising law under Ley 34/1988 and Ley 3/1991.

Forms-legal.com provides this Affiliate Agreement Spain template as a practical starting point. Affiliate programmes involving financial products, insurance, or pharmaceutical goods require sector-specific compliance review by an abogado especialista in digital commerce and regulatory law, given the involvement of the CNMV, DGSFP, or Agencia Española de Medicamentos y Productos Sanitarios (AEMPS). The CNMC enforces competition and consumer protection law under Ley 15/2007 and Ley 3/1991. The AEAT administers IRPF withholding and IVA compliance for affiliate payment flows. Disputes arising from Affiliate Agreement Spain arrangements are heard by the Juzgados de lo Mercantil with commercial jurisdiction under Ley Orgánica 8/2003.

Under the Ley de Sociedades de Capital (LSC) RDL 1/2010, the Registro Mercantil maintains the register of Spanish companies. The Código de Comercio 1885 governs commercial obligations. The Agencia Estatal de Administración Tributaria (AEAT) administers Impuesto sobre Sociedades (IS) under Ley 27/2014. The Comisión Nacional de los Mercados y la Competencia (CNMC) enforces competition law. The Código Civil governs general contractual obligations under Article 1255.