Portrait ofJavier Torre de Silva

Javier Torre de Silva

Partner
Global Co-Head of Communications, TMC

CMS Albiñana & Suárez de Lezo
Paseo de Recoletos 7–9
28004 Madrid
Spain
Languages Spanish, English, French, Italian

Javier Torre de Silva has been practising as a lawyer at CMS Albiñana & Suárez de Lezo for 28 years, working across several legal disciplines. He currently leads the CMS global telecommunications group and is Head of the TMC department at CMS Albiñana & Suárez de Lezo. Javier also advises on public law and regulated sectors and is Co-head of the firm's infrastructure team, as well as dedicating a significant amount of time to arbitration and civil law concerning contracts, the topic on which he based his doctoral thesis.

He is on professional leave from his role as a State Attorney, a position he held for over 12 years where he was responsible for hundreds of judgments on diverse matters, including constitutional reform and the majority of the regulations on the liberalisation of the telecommunications sector in Spain, not to mention his work on numerous public contracts and regulated sectors.

He is a member and representative of the Information and Communications Technology (ICT) Committee at the Royal Academy of Jurisprudence and Legislation. Over a number of years he has spoken at the "Don Federico de Castro" seminar on civil law at the Royal Academy.

He wrote his doctoral thesis on contract law at the Royal College of Spain in Bologna under the guidance of Luis Díez-Picazo (Spain) and Francesco Galgano (Italy), achieving the highest level of distinction. The thesis was based on liability for a breach of contractual obligations.

He has acted as an arbitrator on a number of occasions and been involved in arbitration proceedings as both counsel and lead attorney. He is a member of the ICC Arbitration and ADR Comission.

He has been involved in countless corporate deals, in particular those relating to the sale and purchase of enterprises.

Javier has been a member of the FIDE Academic Council since 2024.

He is an accredited doctoral professor in undergraduate administrative law, a topic which he has been teaching for 20 years.

Javier has been named a leading lawyer by the most prestigious legal directories such as Chambers & Partners and Legal 500. Moreover, he has also been selected by several institutions as one of the 50 Best Lawyers in Spain with regards to contract law. He is also a member of ITech Law.

In addition to his work at the firm, he also provides a private client service.

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Relevant experience

  • Galp | Sale of the Madrid-based gas company by the Galp Group to Endesa.
  • Acciona | Acquisition of Endesa by Acciona and Enel via takeover.
  • Citi Infrastructuras| Sale of ITINERE (infrastructure licensee) to Citi Infrastructuras.
  • Ferrrovial | Advice to the Board of Directors of Ferrovial and other companies within the group.
  • Telefónica | Contentious-administrative case involving Telefónica (amount exceeding EUR 600 million).
  • Equidosa | Contentious-administrative case involving Equidosa (amount exceeding EUR 100 million).
  • Globalvía and others | Several contentious-administrative cases concerning the reinstatement of the economic-financial balance of infrastructure licences for Globalvía, Equidosa and other licensees.
  • Involvement in disputes relating to the interpretation, amendment and termination of public contracts and licences.
  • Involved in the Council of State judgment on the constitutional reform.
  • Spanish Government | Government research programme on the functioning of institutions advising the British Government, organised by the Council of State in collaboration with the British Embassy in London. 
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Memberships & Roles

  • Member of the Council of State Attorney Corps since 1997 (on professional leave).
  • Member of the Royal Academy of Jurisprudence and Legislation.
  • Member of the Civil and Commercial Arbitration Court of Madrid.
  • Member of the International Chamber of Commerce.
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Publications

  • The Right to Scrape Data on the Internet: From the US Case hiQLabs, Inc. v. LinkedIn Corp. to The ChatGPT Scraping Cases-Differences Between US and EU Law. 2024.
  • La presunzione di colpa nella responsabilià contrattuale. Bologna, 2023.
  • "Is there a right of access to information on all sanctions imposed on legal persons?" Revista de Administración Pública, 2023, 221, 231-256.
  • "On the alleged legal duty to bear damages caused by a reasonable and reasoned invalid act" Recuerda Girela, M.A. (Dir.), Anuario de Derecho Administrativo, 2022.
  • The automatized administrative acts. In: Recuerda Girela, M.A. (Dir.), Anuario de Derecho Administrativo 2021.
  • Liability for damage caused by artificial intelligence systems. Derecho Digital e Innovación, nº 11, 2022.
  • The anti-formalist principle in online administration. In: Recuerda Girela, M.A. (Dir.), Anuario de Derecho Administrativo 2020.
  • Law and the state of emergency. A temporary shift in regulation. In: Recuerda Girela, M.A. (Dir.),Anuario de Derecho Administrativo, Before the next pandemic. Thomson-Reuters Aranzadi, 2020. ISBN: 978-84-1346-893-8.
  • The revoking of unfavourable and voidable acts at the request of the subject. In: Recuerda Girela, M. A.  (Dir.), Anuario de Derecho Administrativo 2019.
  • Data according to Private Law. 2019 Civil Law Annual, III term. 
  • Construction works contracts entered into by Compensation Boards: Competent jurisdiction and exorbitant prerogatives. In: Recuerda Girela, M.A. (Dir.), Anuario de Derecho Administrativo 2016.
  • Compensation for damages in cases relating to the termination of administrative licences: unearned tax income. In: Recuerda Girela, M.A. (Dir.), Anuario de Derecho Administrativo 2015.
  • The impact of insolvency on public sector contracts. In: “Agreements Treaty”, 2014.
  • Issues relating to the expiry of administrative proceedings. In: “Administrative Law Annual”, 2014.
  • Public Contracts (various chapters). Madrid, 2004.
  • Administrative silence and the expiry of administrative proceedings in relation to public contracts: in particular, termination due to a breach by the contracting party. In: “Spanish Administrative Law Magazine”.
  • Decisions that can be challenged by means of the extraordinary appeal. In “Spanish Administrative Law Magazine”, 2003.
  • The Council of State doctrine on telecommunications and services in the information society. In: “Official State Gazette, Council of State collection”.
  • Santi Romano. In “Universal Lawyers”, Dir. Rafael Domingo, 2004.
  • Internet, industrial property and unfair competition. Centre of Political and Constitutional Studies).
  • Limits to the “privatization” of Trademarks Law. In “Commercial Law Review”, 2002.
  • La presunzione di colpa nella responsabilità contrattuale. Doctoral thesis. Universidad Autónoma de Madrid and Università di Bologna (Royal College of Spain), 1992.
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Lectures list

  • Javier has spoken at numerous conferences and been involved in round table discussions on diverse subjects within the field of Administrative and Corporate Law (INAP, Universidad Complutense de Madrid, the International Bar Association and the Centre of Political and Constitutional Studies).
  • Speaker at Cátedra Google (Universidad CEU San Pablo, Madrid).
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Education

  • 2012 - Accreditation as Doctoral Professor.
  • 1998 - Financial and Business Science Studies, Universidad Nacional de Educación a Distancia (Spain).
  • 1997 - Attorney for the Council of State, graduating as the top ranked individual (Spain).
  • 1992 - Doctorate in Civil Law (thesis entitled "La presunzione di colpa nella responsabilità contrattuale"), Universidad Autónoma de Madrid and Università di Bologna (Royal College of Spain).
  • 1990 - Graduate of Law and Degree in Philosophy (National Degree Award and Extraordinary Degree Award), Universidad de Navarra (Spain). 
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22/03/2017
CMS asesora en el acuerdo estratégico entre Ferrovial y Telefónica
CMS Albiñana & Suárez de Lezo ha asesorado en la firma del acuerdo por el que Ferrovial ha seleccionado a Telefónica como suministrador de servicios de operación de comunicaciones durante los próximos...
21/06/2017
CMS asesora a GSA en la compra de Nexo Residencias al fondo de capital...
GSA ha adquirido el grupo español de residencias uni­versit­ari­as Nexo Residencias a Threesixty Developments, una firma en manos de los fondos gestionados por Oaktree Capital Management. En la actualidad...
18/05/2023
CMS Expert Guide to 5G regulation and law
 The 2023 edition of the CMS expert guide to 5G regulation and law study includes summaries of some of the key 5G-related regulatory positions underway in over 50 markets. It covers new topics such as the increased adoption of industrial 5G, the inno
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11/07/2024
Looking ahead to the EU AI Act
On 12 July 2024, the "Regulation laying down harmonised rules on artificial intelligence" (the so-called AI Act) was published in the Official Journal of the European Union. After a long and complex journey that began in 2021 with the European Commission’s proposal of a draft AI Act, the regulation will now enter into 20 days after its publication, i.e. on August 2, 2024. As the world's first comprehensive law to regulate artificial intelligence, the AI Act aims to establish uniform requirements for the development and use of artificial intelligence in the European Union. With this adoption of the world’s most significant legislation on Artificial Intelligence, the EU is solidifying its position as a pioneer among global legislators. This initiative aims to establish and reinforce the EU’s role as a premier hub for AI while ensuring that AI development remains focused on human-centered and trustworthy principles. The AI Act aims to ensure that the marketing and use of AI systems and their outputs in the EU are consistent with fundamental rights under EU law, such as privacy, democracy, the rule of law and environmental sustainability. Adopting a dual approach, it outright prohibits AI systems deemed to pose unacceptable risks while imposing regulatory obligations on other AI systems and their outputs. The new regulation, which also aims to strike a fair balance between innovation and the protection of individuals, not only makes Europe a world leader in the regulation of this new technology, but also endeavours to create a legal framework that users of AI technologies will be able to comply with in order to make the most of this significant development opportunity. In this article we provide a first overview of the key points contained in the text of the AI Act that companies should be aware of in order to prepare for the implementing regulation.
09/04/2024
AI Act and its implications on the automotive industry
Join us for an exclusive webinar where we delve into the intricacies of the AI Act and its implications in the automotive industry. As AI continues to revolutionize the way vehicles are designed, manufactured, and operated, it's imperative for industry professionals to understand the regulatory landscape shaping its usage. Our webinar brings together a panel of distinguished experts, including legal luminaries, representatives from the European Commission, and experts from EU legislative bodies. They will provide invaluable insights, guidance, and interpretation on the AI Act's provisions, ensuring that participants gain a comprehensive understanding of its impact on automotive innovation and compliance.
26/02/2024
CMS at Mobile World Congress
CMS lawyers are pleased to be attending the Mobile World Congress held in Barcelona on 26 – 29 February.  Below you can find an overview of our attending partners, representing a large range of jurisdictions and practice areas. To arrange a meeting, please contact the individual lawyers directly. At CMS, we are proud to have some of the leading global legal specialists in the technology, media and communications sector. Fuelled by huge customer demand for cutting-edge products and increased supply of pioneering services, the sectors of technology, media and communications have each undergone unprecedented change. Innovation is key, and so tech and telecoms suppliers, and creators and distributors of media, need to protect their investments and maximise their commercial opportunities. Our global team of over 800 specialist Technology, Media and Communications (TMC) lawyers has been exposed to virtually every risk and challenge you face. With our long-standing focus on advising players, users, regulators and financiers in the sector we are best placed to deliver innovative solutions through our award-winning disputes, transactions, IP, commercial, data privacy and security, employment and tax practices. To find out more about CMS Technology, Media and Communications cap­ab­il­it­ies, vis­it our webpage belowLearn more about TMCFor further information, please see our partners attending the congress in the gallery below and an overview of all our expertise areas.
31/01/2024
TMT World Congress 2024
CMS lawyers are pleased to be attending the TMT World Congress 2024 held in London on 31 January - 01 February. Below you can find an overview of our attending partners, representing a large range of jurisdictions and practice areas. To arrange a meeting, please contact the individual lawyers directly. Additionally, Anne Chitan will moderate the M&A Panel - Assessing what’s next for Transactions amid Continued Macro Headwinds, Wednesday 31 January (10:55 – 11:35). At CMS, we have some of Europe’s leading legal specialists in the technology, media and communications sector. Our Digital Communications Infrastructure Team combines exceptional expertise in project and structured finance, competition regulation and large-scale investment, while our market-leading tele­com­mu­nic­a­tions team has decades of experience in the technology and communications space, including strong expertise in the areas of fibre, towers, subsea cables, network sharing, data centres and satellite. To find out more about CMS Digital Communications Infrastructure cap­ab­il­it­ies, vis­it our Digital Communications Infrastructure section. For further information, please see our partners attending the congress in the gallery below and an overview of all our expertise areas.
20/11/2023
Data protection and cybersecurity laws in Spain
Data protection 1. Local data protection laws and scope Organic Law 3/2018 of 5 December on the Processing of Personal Data and Guarantee of Digital Rights (hereinafter Organic Law 3/2018) (“Ley Orgánica...
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20/07/2023
5G: A reality check
If you were to ask the average citizen or business executive about 5G, they would probably tell you it’s been rolled out across most developed markets and making money. But this is not the case: deployment tends to be partial and patchy, and telcos are yet to see return on investment on the hundreds of billions of dollars that have been invested globally. In compiling this year’s edition of our 5G report, we spoke to legal and technology experts in over 50 markets to learn the true state of last-generation roll-outs across the world. We asked which technology companies are offering, whether consumers and industry can access it, whether it’s being monetised, where regulation stands, which spectrum is being used and how it’s being auctioned, how networks are being shared, whether network-specific cybersecurity measures are in place, and what each country’s positions are on Chinese network equipment. North America had the highest 5G penetration (41%) as of the end of 2022, according to Ericsson’s June 2023 Mobility Report. Behind that region were North East Asia (30%), the Gulf Cooperation Council (18%) and Western Europe (13%). By December, the vendor predicts that there will be 1.5 billion 5G subscriptions globally. In terms of number of 5G subscriptions, China is in the lead, with more than 60% of the world’s total (644m, versus 417m outside the country) as of the end of 2022. Other markets are home to technical quirks that are delaying 5G. In The Netherlands, for example, the 3.5 GHz band is not yet commercially available because NATO is operating a satellite 'listening station' with Inmarsat using the 3.4 and 3.8 GHz bands, and Inmarsat is using the 3.5GHz satellite traffic band to provide emergency communications to ships and aircrafts. The US and Canada dealt with interference between air traffic control systems and consumer 5G by setting up exclusion zones around airports. Spectrum rights - award and duration Spectrum rights have tended to cost far less than they did for 3G and 4G, because governments have recognised that high licence prices may have hampered investment. They are mainly awarded via tender or public auction, though in China, 5G licences are assigned directly to the four main telcos (China Mobile, China Unicom, China Telecom and China Broadnet). The duration varies across markets, from 15 (eg France) to 30 years (Chile) - often with five-year extensions.   Network and spectrum sharing agreements Network sharing agreements are already a priority in large countries with vast swathes of low population density regions that are expensive to connect. The US, like Africa before it, is seeing mobile as more efficient in rural areas than fixed-line (in this case fibre), which takes longer and is more expensive to deploy. T-Mobile, Verizon, and AT&T are offering separate Fixed Wireless Access (FWA) 5G services they hope will replace wired internet access in those areas.  According to Ericsson1, by 2028 more than 25% of global mobile data traffic will be through FWA, part of it with passive network sharing. In Australia, some state governments have proposed funding active network sharing initiatives in areas with low population density. For example, New South Wales’ Gig State programme includes a trial to fund the design and build of Multi-Operator Core Networks (MOCN), which enable active sharing between carriers. In the US, T-Mobile as part of its agreement to acquire Sprint, had to offer 5G network access to Dish, in a deal lasting until 2027. Standalone vs non-standalone As of January 2023, there were 229 commercial 5G networks, according to the GSMA. But in most countries, the majority of services sold as 5G are in fact non-standalone (NSA), meaning that the radio access network (RAN) is 5G, but the core network remains 4G. The Global Suppliers Association (GSA) says that 36 operators in 21 countries and territories have launched public standalone networks, while 111 operators in 52 countries are running trials, planned or actual deployments. In the meantime, the GSMA is forecasting that of the new 5G networks deployed in 2023, 15 will be standalone (SA). It noted that some operators have blamed the limited number of mobile devices that support standalone as a reason for delaying deployment.A notable exception is Singapore, whose telcos now all provide at least 50% outdoor coverage using standalone networks, with Singtel hitting 95% as of July 2022. Monetisation - consumer vs industrial Experts in almost all markets noted that telecom operators are yet to monetise 5G, especially in the consumer segment, where prices have remained the same as 4G. In Sweden, however, Telenor Sverige and Telia Sverige buck the trend, but offer enhanced benefits such as insurance, streaming services or more/unlimited data. Tele2 Sverige and Hi3G Access, for their part, have stopped offering new 4G subscriptions altogether. In Europe and Asia, the industrial segment is showing more promise thanks in part to government subsidies, though more time is needed to demonstrate use cases. Industrial 5G In most countries, it is telcos that are setting up industrial 5G, enabling private networks that connect specific areas such as factories and campuses. But starting this year, industrial companies in Sweden can apply directly for local licences to use radio transmitters in the 3.7 GHz and 26 GHz bands, enabling coverage in mines, harbours and hospitals. This year, the Spanish government announced it would reserve part of the 26 GHz band for direct award to industrial players, without the need for intermediation by telcos. The German Federal Network Agency has already allocated frequencies in the 3.7 to 3.8 GHz and 26 GHz bands for local 5G, meaning that more than 140 companies are now able to operate their own local networks. Network slicing, which enables multiple virtual networks to sit on top of a shared physical infrastructure, represents another way to offer differentiated services to enterprise clients across industries - though it requires SA 5G. However, because slicing uses software and virtualisation, telcos will both compete and partner with cloud providers. According to the GSMA, operators outside China have so far shown limited interest in slicing deployments due to concerns about return on investment. China The tech decoupling between the US and China has left other countries caught in the middle when it comes to selecting which companies will provide network equipment. Many European governments have signed up to the US ‘Clean Network’ initiative, with Portugal in May becoming the latest to show signs it will ban “high risk” vendors. Some countries like Brazil, Mexico and Turkey are remaining neutral, while others such as Bulgaria and Angola are entering into explicit partnerships with high risk vendors. In June, the Financial Times reported that the European Union was considering banning all member states from using equipment from companies that might present a security risk to 5G networks. Thierry Breton, Commissioner for Internal Markets, told telecom ministers he was disappointed that only one third of member states had banned high risk vendors from “critical parts” of 5G infrastructure, which risked “exposing the union’s collective security.” Germany was named as a key outlier. Conclusion By and large, most countries covered in the survey appear committed to launching 5G, but progress has been slower than hoped due to factors including Covid, regulatory delays, and high costs for operators whose investors want to see return on investment. Governments appear to be trying to ease the way by lowering spectrum costs and removing some red tape, while telcos generally aren’t charging customers more for 5G than 4G. As roll-outs continue, and providers upgrade core networks to proper 5G, it is likely that telcos will continue the trend towards seeking outside investment by selling off infrastructure and sharing networks. The GSMA estimates that there are 400 million people who lack access to mobile broadband. Looking ahead, it is unclear how the expected launch of mobile satellite services (MSS) by the likes of Starlink, Kuiper, Vodafone+AST Space Mobile, and Orange+OneWeb will impact the deployment and profitability of the 5G networks in less populated areas. It is possible that 5G operators could face hurdles to monetising rural networks, which are part of their coverage obligations, depending on the level of competition from MSS service providers. Based on our conversations with clients, we see 5G as an example of a long-term investment subject to the short-term technological and commercial landscape and other challenges. In future, there will be a range of competing technologies: optical fibre, Wi-Fi7 and SA 5G (with network slicing) in populated areas, and a mixture of SA 5G, FWA and satellite mobile services in rural areas. All of them will serve both humans - and increasingly, IoT. SA 5G will become not just a way for individuals to communicate, but an environment for digital ecosystems housed in different network slices. In all scenarios, these technologies will have to co-exist and cooperate, providing the fullest service to the client - now, and as we head towards 6G. 1 Eric­sson: https://www. ericsson. com/en/reports-and-papers/mobility-report/dataforecasts/mobile-traffic-forecast?gclid=EAIaIQobChMI5Y-qzby-_wIVQwgGAB3ZyAOVEAAYASAAEgI08PD_BwE&gclsrc=aw. dsSee also https://www. ericsson. com/4a9aa7/as­sets/loc­al/cases/cus­tom­er-cases/2022/us­cel­lu­lar-bridging-di­git­al-di­vide. pdf.
18/05/2023
5G regulation and law in Spain
1. What is the state of 5G deployment in your country? Deployment of 5G was first announced by Vodafone and then by Telefónica (Movistar) on 1 September 2020, with NSA (non-stand-alone) and DSS (Dynamic...
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26/08/2022
Public procurement regulation in Spain
October 2018 1. Where can one find public procurement notifications for Spain? European Union Official Journal. Official Spain’s Official State Gazette (Boletín Oficial del Estado). Public Sector...
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5G vision video series
A video series on the deployment of 5G across the world
31/05/2021
CMS Network Sharing 4.5
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14/01/2021
5G Rollout: Investing and Monetising in the Next Phase of Connectivity
CMS and TMT Finance are proud to collaborate to present a dynamic digital panel as part of the 2021 TMT Connect series. With 5G rollout picking up pace, MNOs, infrastructure companies and investors are...
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At the start of a New Year, most people agree that 5G will change our lives for the better. Unlike earlier mobile generations, 5G will not only mark a radical change in the way we communicate (low latency...