A pending debt can end up causing the inclusion of a person in ASNEF, one of the most well-known credit information systems in Spain. However, the existence of an unpaid invoice or installment does not automatically allow the creditor to communicate the customer's data to a file of defaulters.
The Organic Law on Data Protection establishes specific conditions. The debt must be certain, due, and enforceable, must have gone unpaid, and must not be disputed in terms that prevent its inclusion. Furthermore, the creditor must have previously informed the affected party about the possibility of communicating their data to these systems and must have made a payment request before doing so.
ASNEF should not be confused with the CIRBE of the Bank of Spain. The CIRBE collects financial risks even when the customer correctly pays their loans. A system like ASNEF, on the other hand, is used to handle information related to breaches of monetary, financial, or credit obligations.
The debt must be certain, due, enforceable, and unpaid
Article 20 of Organic Law 3/2018 establishes that the data communicated to a credit information system must refer to certain, due, and enforceable debts. The Spanish Agency for Data Protection expressly adds that, to include a natural person, the debt must have gone unpaid.
This means that it is not enough for a company to unilaterally claim that there is an outstanding amount. The law itself excludes from this presumption of legality those cases in which the existence or amount of the debt has been the subject of administrative or judicial claim by the debtor, or are subject to an alternative dispute resolution procedure that is binding on both parties.
The responsibility to verify that all requirements are met lies with the creditor who communicates the information. The regulation expressly states that they must ensure that the debt exists and that the data is accurate.
The principal must reach at least 50 euros
There is also an economic threshold. The sixth additional provision of Organic Law 3/2018 establishes that debts with a principal of less than 50 euros will not be incorporated into these systems.
The reference is to the principal of the debt, not necessarily to the final amount once interest, penalties, or other concepts have been added.
Therefore, a debt of a few euros should not serve by itself to incorporate a person into a credit information system. The regulation also allows the Government to update this limit by royal decree.
The creditor must demand payment before including you
One of the most important requirements is the prior payment demand. The AEPD expressly states that the creditor must demand the debt from the affected party before communicating their data to the file.
In addition, they must have previously informed the client about the possibility of inclusion in credit information systems. This information can appear in the contract or be provided at the time the payment demand is made, indicating the systems in which the creditor participates.
Therefore, inclusion in ASNEF should not occur as a consequence of a default without these information and demand obligations being fulfilled beforehand.
ASNEF must communicate that the data has been included
After the creditor communicates the debt, the entity responsible for the system must notify the affected party of the inclusion of their data and explain that they can exercise the rights recognized by data protection regulations.
The communication must be made within the 30 days following the notification of the debt to the system. During that period, the law establishes that the data remains blocked.
This allows the affected party to know what debt has caused the inclusion and to react if they believe the information is incorrect, the amount does not correspond, or the processing fails to meet any legal requirements.
You do not necessarily have to wait three months to enter ASNEF
A common confusion consists of applying to ASNEF the known reference of 90 days of default that appears in certain banking classifications of problematic credits.
The current regulations on credit information systems do not establish as a general rule that it is mandatory to accumulate three months of defaults before being able to communicate a debt. The legal requirements are different: certain, due, enforceable, and unpaid debt, sufficient amount, prior information, and payment demand.
Therefore, the 90 days used to classify certain banking operations as doubtful should not be confused with the rules that determine whether a debt can be incorporated into ASNEF.
Not only bank loans can end up in ASNEF
Credit information systems are not limited exclusively to mortgages, cards, or personal loans. The law speaks of defaults on monetary, financial, or credit obligations, so there may be debts arising from other contractual relationships as long as the legal requirements are met.
This also explains the difference with CIRBE. An unpaid invoice for certain services may be relevant for a credit information system even if it has never been a credit declared to the Bank of Spain.
The key is not, therefore, who originated the debt, but that there is actually an unpaid payment obligation and that all required guarantees have been respected before incorporating the data.
A debt can remain for a maximum of five years
The legislation prevents a debt from remaining indefinitely in these systems. The data can only be maintained while the default persists and with a maximum limit of five years from the due date of the obligation.
In obligations with periodic due dates, the limit is calculated regarding the specific corresponding term. The AEPD reproduces this same rule among the necessary requirements for data processing.
The five years are, therefore, a legal maximum, not a period during which a person must necessarily remain included.
If you pay early, you don’t have to wait five years
The law itself establishes that the data can be maintained only while the default persists. This means that if the debt that justified the inclusion disappears, the basis for maintaining that information as a current default also disappears.
Therefore, paying a debt before the five years elapse does not mean that the consumer has to remain until that period is completed. The time limit operates only while the default continues to exist.
If after the payment the data continues to appear incorrectly, the affected person can exercise their rights of rectification or deletion before the data controller and provide the documentation that proves that the debt has already been settled.
You can also claim if the inclusion is incorrect
The AEPD indicates that a person can claim when they have been included in a solvency file in violation of any of the legal requirements. Before going to the Agency, they can address the data controller and exercise the corresponding data protection rights.
For example, there may be a problem if the debt does not actually belong to the affected person, if the declared amount is incorrect, if it has not yet matured, if the prior requirement was not made, or if a debt that no longer meets the conditions is still maintained in the system.
It is also relevant the assumption of a debt whose existence or amount is being disputed through an administrative or judicial claim. Article 20 expressly contemplates this circumstance by establishing the conditions to presume the treatment lawful.
Who can consult the data
ASNEF does not function as a public list available to anyone. The Organic Law limits the circumstances under which the data of a debtor can be consulted.
A company can access them when it already has a contractual relationship with the affected person that involves the payment of money or when the latter requests a contract that entails financing, deferred payment, or periodic billing.
If a company rejects a hiring as a consequence of the consultation made to a credit information system, it must inform the affected person of the result of that consultation.
Being in ASNEF can make it difficult to obtain financing
Precisely because of its purpose, the presence of a default in a solvency system can influence the evaluation that an entity makes when someone requests a loan, a card, or another operation that involves financing.
This does not mean that inclusion produces a legal automatic prohibition on granting credit. The final decision depends on the risk policy of each entity, the amount and characteristics of the debt, and the rest of the information available about the client.
What the regulations do establish is that these systems can be consulted precisely in certain processes related to financing, deferred payments, and periodic billing contracts.
CIRBE, doubtful credit, and ASNEF are distinct concepts
A person may have a mortgage declared in the CIRBE and have never missed a payment. Similarly, a bank may internally classify or for prudential purposes an operation as doubtful without that allowing to automatically convert the holder into a member of ASNEF.
ASNEF responds to another logic: the existence of a payment default that meets certain legal requirements. The incorporation must be preceded by information and a payment request and is subject to the guarantees provided by data protection regulations.
The practical rule is clear: not any pending receipt allows ending up in a file of defaulters. The debt must meet the conditions provided by law and can only be maintained as long as the default exists, with a maximum of five years from its due date.