Garrigues Digital_

In response to the growing prevalence of cross-border sales of products through e-commerce platforms, lawmakers have imposed on platform operators the obligation to oversee compliance by sellers with the extended producer responsibility regime and, where they fail to comply, to assume secondary liability.

E-commerce platforms enable Spanish consumers to acquire small electrical appliances, tires, portable batteries or packaged products from sellers located outside Spain. The transaction may appear straightforward from a commercial perspective, but it gives rise to complex legal issues from the standpoint of both digital and environmental law.

As a result, in recent years, the European and Spanish lawmakers have imposed secondary liability on e-commerce platforms under the extended producer responsibility regime where the producer fails to comply with its obligations and is established outside Spain.

Extended producer responsibility (EPR) is the legal mechanism through which whoever places a product in the market must assume certain financial, organizational or information obligations, once that product becomes waste, primarily in relation to its management as such. 

Under the traditional model, the authorities were able to identify the manufacturer, importer or distributor responsible. In digital markets however, products reach consumers through an interface managed by a third party, through decentralized logistics arrangements and, often, via a seller with no operational presence in Spain. This represents a paradigm shift that has been reflected in the regulatory framework governing these digital platforms.

In this context, we examine below the legal regime applicable to e-commerce platforms in connection with extended producer responsibility.

The legal framework governing extended producer responsibility under Spanish law

European legislation, in accordance with the “polluter pays” principle, has imposed financial and organizational obligations on product producers in relation to the waste generated by those products at the end of their useful life. This is reflected in Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste (the Waste Framework Directive).

Spain has transposed this directive through Law 7/2022 of April 8, on waste and contaminated land for a circular economy.

Article 2.ac) of Law 7/2022 in particular states that, where a producer established in another member State or third country markets products through an e-commerce platform without being registered on the appropriate register or complying with the other obligations arising under the extended producer responsibility regime, the platform will be deemed to be the producer of the product. That is, the e-commerce platform becomes secondarily liable and is required to comply with the EPR obligations in place of the original producer.

Consistently with this approach, the various royal decrees implementing Law 7/2022 approved after its entry into force, have introduced similar provisions.

In this regard, it is worth noting, firstly, article 2.t) of Royal Decree 1055/2022, of December 27, 2022, on packaging and packaging waste, which establishes, as a general rule, that the packer, importer, intra-EU acquirer or owner of the distribution brand is the producer (and therefore the party responsible for complying with EPR obligations). In addition, that provision establishes the secondary liability of the e-commerce platform where it introduces packaged products from outside Spain and the producer has not designated an authorized representative in this country. 

The above notwithstanding, it is necessary to analyze Royal Decree 1055/2022 in light of the new European regulations contained in Regulation (EU) 2025/40 on packaging and packaging waste (which is discussed in the following section). It applies from August 12, 2026 and allocates responsibility to platforms in a different manner.

The secondary liability of e-commerce platforms is also expressly regulated in Royal Decree 712/2025, of August 26, 2025 on tires at the end of their useful life [article 2.m)].

The Royal Decree Bill on batteries and their waste management, currently in the pipeline, contains comparable regulations. Specifically, article 25 requires e-commerce platforms to verify that the producers responsible for placing batteries on the market are registered on the Product Producers Register and that they only place on the Spanish market, batteries that comply with the requirements established in applicable legislation. In the event that those producers are not registered on that register, the e-commerce platform will become the producer of the battery in accordance with Law 7/2022 and must therefore comply with EPR obligations on a secondary basis.

In short, the Spanish lawmakers have established secondary liability for e-commerce platforms where the producer of the product is not located in Spain and breaches its EPR obligations. However, as we will see below, the new EU Regulation 2025/40 on packaging and packaging waste introduces a different model that qualifies said secondary liability.

It should be underscored that the public authorities have been interpreting this secondary liability broadly and, accordingly, not as being limited solely to those cases where the regulatory framework governing the specific waste stream has already been brought into line with Law 7/2022 (as is the case of packaging waste and end-of-life tires). Conversely, the public authorities have also been actively requiring compliance with these obligations in the area of waste electrical and electronic equipment (WEEE), despite the fact that Royal Decree 110/2015 of February 20, 2015 on waste electrical and electronic equipment has not yet been aligned with Law 7/2022.

Consequently, Spanish lawmakers have not conceived providers of e-commerce platform services as mere technological intermediaries, but rather as entities subject to the extended producer responsibility regime which, in certain circumstances, assume the corresponding obligations instead of the primary obligor (the producer of the product).

The legal regime governing the liability of e-commerce platforms under European Union law

The legal regime governing e-commerce platforms and other information society service providers is, for the purposes of this article, primarily set out in Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services (Digital Services Act or DSA) 

Articles 6 to 8 of the DSA establish the general rule that e-commerce platforms are exempt from liability for the activities carried out by their users (i.e., the sellers who use those platforms to offer their products), and that platform operators are under no general obligation to monitor information or actively seek facts indicating illegal activity.

However, article 30 of the DSA imposes certain specific duties on online platforms to ensure the traceability of traders. Accordingly, among other obligations, before allowing a seller to use their services, platforms must obtain from that seller a statement undertaking to only offer products or services that comply with the applicable provisions of EU law.

Once that information has been received and before allowing the trader to use its services, the online platform provider must make every effort, through the use of any freely accessible official online database or online interface made available by a Member State or the Union or through requests to the trader to provide supporting documents from reliable sources, to assess whether the information provided is reliable and complete.

Pursuant to these traceability requirements, several European regulations have imposed specific obligations on e-commerce platforms to verify that traders using their services comply with the applicable EU regulatory framework (both in terms of registration on the relevant registers and also the substantive obligations arising from such registration), in relation to packaging and packaging waste and batteries and waste batteries.

This is envisaged, respectively, in Regulation (EU) 2025/40 of the European Parliament and of the Council of 19 December 2024, on packaging and packaging waste (art. 45.4), and Regulation (EU) 2023/1542 of the European Parliament and of the Council of 12 July 2023 concerning batteries and waste batteries (art. 62.6).

Article 45.4 of Regulation (EU) 2025/40 in particular, imposes an obligation on providers of online platforms to verify, prior to allowing producers to use their services, the following two main aspects: (i) to obtain information on the registration of the producers on the register in the relevant Member State and (ii) obtain a self-certification from the producer confirming that its packaging complies with the EPR requirements established in said Regulation. 

In addition, Regulation (EU) 2025/40 establishes the possibility (but not the obligation), for providers of e-commerce platform services to comply with certain financial obligations arising from the EPR on behalf of producers marketing their products through the platform, based on a written mandate.

In short, as opposed to the general rule on exemption from liability that has traditionally been applicable to online service providers, e-commerce platforms must verify, effectively, that the traders or sellers that use their services comply with their EPR obligations, at least in the areas of packaging and packaging waste and batteries and their waste.

The regime governing the liability of e-commerce platforms in connection with packaging

As we have seen, the secondary liability regime imposed by the European and Spanish lawmakers on e-commerce platforms does not totally coincide in connection with waste and packaging waste.

Royal Decree 1055/2022 states that the platform is deemed a producer and must assume the EPR obligations where the producer of the product is established outside Spain and fails to comply with Spanish legislation (it is therefore an ex post obligation). Conversely, Regulation (EU) 2025/40 only imposes an obligation to monitor and control ex ante, whereby if the producer of the product does not evidence compliance with legislation, the platform cannot allow it to use its services.

In accordance with European legislation (as opposed to Spanish legislation), the platform does not acquire the status of product producer and does not have to meet EPR obligations, unless this is expressly agreed with the traders that use its services.

In this context, the Subdirectorate-General of Waste of the Ministry for  Ecological Transition and the Demographic Challenge has published Interpretative Note of July 27, 2026, on the definition of producer in accordance with Regulation (EU) 2025/40, clarifying how this European regulation should be interpreted.

Therefore, from August 12, 2026 –the date on which Regulation (EU) 2025/40 became applicable– it is necessary to analyze the compatibility of Royal Decree 1055/2022 with said European Regulation, in order to determine the scope of the obligations applicable to platforms with a view to ensuring that Spanish law is consistent with EU law,

Practical consequences for e-commerce platforms 

For the e-commerce platforms that operate in Spain it is essential to know and adequately implement Spanish legislation on extended producer  responsibility. A potential breach of these obligations exposes platforms to financial liability (in particular, to having to bear the financing costs of the waste management system) and the initiation of penalty proceedings by the competent public authorities.

As a result, platforms must implement mechanisms to monitor the traders or sellers that operate through their services in order to ensure that they meet their EPR obligations, verifying the information available to the public on the different administrative registers and other official sources. It is also advisable for them to set up the relevant contractual cover to enable an adequate assignment of risks in the event of breaches of EPR by sellers.

Traders who seek to market their products in Spain must also bear in mind that even if they do not have an establishment or operating structure in Spain and channel their sales through e-commerce platforms, they are still subject to Spanish legislation in relation to EPR. A potential breach of these obligations can lead to e-commerce platforms preventing them from operating via their services or bringing an action for contribution against them for the secondary liability that the authorities may demand from said platforms, as well as the potential initiation of penalty proceedings by the Spanish authorities.