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Spain

Author: María Paz García Rubio / Marta Otero Crespo

I. Overview

Even though not legally defined, some collective redress mechanisms exist in Spanish Law, as there are several rules that regulate typical collective actions. However, there is a lack of a harmonized and methodical approach since these rules are dispersed throughout the legal system and further, there is a question in the Spanish legal literature on whether it is also possible to use collective claims in other non-typical scenarios.

From a historical perspective, until 2000 collective actions were mainly named by Art. 7.3 of the Ley Orgánica 6/1985, de Julio 6, del Poder Judicial (Organic Law 6/1985, of July 6th, of Judicial Powers; LOPJ). In 2000, the Ley de Enjuiciamiento civil (Civil Procedure Act, LEC) introduced a specific litigation procedure before a Court, granting standing for the protection of rights and interests of consumers and users in Art. 11 LEC . According to this provision, legally constituted consumers and users' associations shall be empowered to defend in Court the rights and interests of their members and of the association itself, as well as the general interests of consumers and users. This provision was amended in 2007 to introduce Art. 11 bis, which focuses on the standing of the defence for equal treatment between men and women. Recently, in March 2014, Art. 11 LEC was amended, modifying paragraph 4 and adding a new paragraph 5 (Act 3/2014, 27 of March, modifying Revised Text of General Act for the Defence of Consumers) . According to the latter, the Public Prosecution Service (Ministerio Fiscal) now has standing to file any type of claim to defend consumers' and users' rights - prior to the amendment, the Ministerio Fiscal could only issue a petition for injunctions before a court - acción de cesación.

Additional consideration must also be given to other many sectoral laws, as they increasingly deal with procedural matters regarding collective interests. In this sense, collective interests are protected in the following fields: Anti-discrimination law (Art 19 Act on Equal opportunities 2003; Art 12 Equality Act.), Competition law (Art 32 and 33 Unfair Competition Act 1991, as amended in 2009), Consumer Law (Arts 23, 53, 54.1, 54.2, 55, 56 and 128 Codified text of the General Law for the Defence of Consumers and Users and other complementary laws, Royal Decree 1/2007) ; Environmental Law (Art 42 Environmental Liability Act 2007) and even Labour Laws (Arts 17 and 153-162 Act on Social Jurisdiction Proceedings 2011).

From the Public Law angle, the defence of collective interests is regulated by Art 31.2 Regulation of Public Administrations and General Administrative Procedures Act 1992 and Art 19.1 Act on the Jurisdiction for Judicial review.

In addition, in the field of Alternative Dispute Resolution schemes, Arts. 56-62 Royal Decree 231/2008 permits the use of arbitration in dealing with collective claims that concern a certain or determinable number of consumers.

Despite the lack of any legal rules about proper collective settlements among the parties concerned, these are admissible.

As mentioned above, collective redress mechanisms exist both from a general and sectoral approach where the most relevant cases fall under the Consumer and Product liability Law spheres. Both mechanisms have proven to be the most effective in protecting consumers and users in relation to damage caused by the consumption or use of defective products.

Regarding standing, following a representative model of collective redress, legally constituted consumer's and user's associations shall be empowered to defend in Court the rights and interests of their members and of the association itself - as well as the general interests of consumers and users. Furthermore, the Public Prosecution Service (Ministerio Fiscal) and other authorized public entities shall also start proceedings to defend collective and diffuse interests of consumers and users. Additionally, Art 11 bis LEC grants standing to Trade Unions and other legally constituted associations whose primary goal is the defence of equal treatment for men and women, but in these cases they are only permitted to represent their own members. Finally, even public bodies with competence in the matter shall start proceedings, but exclusively when the aggrieved parties were unidentified. Individuals are also entitled to bring proceedings in order to defend their own rights. An individual also has standing in defence of collective and diffuse interests. However, when claiming these supra-individual interests, each individual is not a named claimant also representing someone else: he/she is only defending his/her own singular right(s) before the courts.

There is no certification criterion as such. However certain conditions must be met in order to file a lawsuit. For instance, consumer associations entitled for issuing a claim in collective redress cases are defined in Art. 23 Royal Decree 1/2007 (Consumer Act). To file a representative action they must have legal ability, be not-for-profit and with constitutive objectives to protect consumer interests. Further, anti-discrimination associations must have legal capacity and pursue, as a main goal, the protection of equality between women and men. Once those associations have proven their legal standing to file a suit, there are no further requirements.

From the procedural point of view, the LEC 2000 addresses collective actions through scattered regulations. In this sense, the absence of systematic and consistent parameters leads to confusion and provokes diverging interpretations. As recently stated, the most relevant provision is Art. 11 LEC where two different types of actions are considered to protect collective interests and diffuse interests. Within the scope of the LEC, the interest is considered as collective if it is possible to identify the specific persons whose individual rights or interests have been harmed and when they are an integral part of the community that holds the legal right that has been harmed. However, interests are diffuse when it is not possible to identify their holders, either owing to the particular nature of the legal right harmed or to the impossibility of proving such ownership in a proceeding. According to Art. 11 LEC, legally constituted consumers and users' associations, the Public Prosecution Service and some authorized public entities, shall be legitimate to claim in Court both types of interests.

Among the dispersed rules included in LEC, we have to stress the following provisions. Art. 15 LEC stipulates rules in order to disclose the proceedings and make the intervention of affected persons in the collective proceedings related to consumers possible. When proceedings are brought by associations, aggrieved parties will be summoned to the hearing in order to claim their individual interests. The importance of information on a collective redress action has been highlighted by the Commission Recommendation 11 June 2013. In this regard the Member States should ensure that it is possible for representative entities, or for a group of claimants, to disseminate information about a claimed violation of rights granted under Union law as well as their intention to obtain both injunctive and/or compensatory relief. Further, the same possibilities for the representative entity, ad hoc certified entity, a public authority, or for the group of claimants should be ensured as regards the information on the on-going compensatory actions.

Furthermore, Art. 256.1.6 LEC provides for a preliminary investigation with the aim of identifying the aggrieved parties when they may be easily singled out (collective interest). On evidence, arts. 217.6 and 7 LEC include special rules about the burden of the proof that can be used in the collective proceedings.

Among other effects, in the case of compensatory claims, collective consumer judgments must specify individual damages. If this is not possible, the judgment will define the requisites to obtain damages (Art. 221 LEC).

General procedural rules are applicable in this area. For instance, claims may be settled through the usual channels and before the common courts, as there is no special jurisdiction. Participation of foreign claimants is possible according to the general rules (also art. 55 General Consumer Act, about the injunction claim in other European Union State and art. 6.1.8º LEC, recognizing capacity to be a party to qualified entities according to the former Directive 98/27 and current Directive 2009/22/EC on injunctions for the protection of consumers' interests), but the Spanish jurisdiction has not dealt so far with any situation involving international collective redress.

On the res judicata debate, the Court's decision has the force of res judicata between the parties to the proceedings (Art. 222.3 LEC). Holders of the rights that provide the grounds for standing according to Art. 11 LEC will also be bound by the outcome of the proceedings. According to Art. 222.3 LEC, when the claims are lodged by associations, legal entities, or groups acting in defence of both supra-individual interests and individuals uniform interests, the binding effect of the judgment is that it can affect non-claimants who were also entitled to the fundamental rights protected by Art. 11 LEC.

On remedies, before the LEC in 2000, collective redress devices were available only for the purposes of cessation or prohibition (declaratory and injunctive relief) consistent with civil law norms that state that damages should not be awarded to non-parties. However, since 2000 compensatory relief is available in consumer affairs, and since 2007 is also available in gender equality matters. A compensatory claim founded in Art. 12.3 General Contractual Conditions or Standard Form Contracts 1998 Act and in Arts 32 and 33 Competition Law is also possible (but only if consumers are involved). In other areas compensatory relief for collective losses is not recognized by Spanish Law. Nevertheless, each harmed person is entitled both to claim damages individually, and to join other claimants through a joint action with several co-plaintiffs.

According to Art. 221 LEC, in claims for a money award or personal services, the judgment upholding the claim shall individually specify the consumers or users that will benefit from it. When individual identification is not possible, the judgment shall determine the conditions to be met in order to be eligible for payment. If specific consumers that are to benefit from the judgment cannot be identified, the enforcement court will issue an order on whether the requirements established in the judgment are satisfied by the individuals who claim damages (Art. 519 LEC).

Regarding costs, Spain has a 'loser pays' general rule. Contingency fees/quota litis agreements are available and valid in Spain - lost cases included- after the decision of the Supreme Court of 4 November 2008. Nevertheless, the Commission Recommendation adopts an ambiguous approach in this matter. First, the Recommendation seems to generally reject these lawyers' fees based on the grounds that this kind of remuneration and the method by which it is calculated, may create incentives to litigate. Secondly, being aware that those contingency fees do exist in some Member States, the Recommendation states that they can be allowed exceptionally, having taken a series of safeguards (see ff. 29 and 30).

In Spain third party funding is not expressly regulated, although Spanish Consumer organizations can obtain legal aid (Art. 37 RDLeg 1/2007) to defend consumers' interests (both collective and diffuse interests). In addition, the Free Legal Assistance Act (Ley de Justicia Gratuita 1/1996, January 10th) provides the right to apply for free justice benefits for the associations declared to be in the public interest or foundations registered in the corresponding Administrative register (Art. 2 c), if they cannot afford to litigate.

1. Based on Art 51 of the Constitución española; Spanish Constitution CE.

2. The Act transposes in the Spanish legal system the Directive 2011/83/EU of 25 October on Consumer Rights.

3. It has to be stressed that the LEC is a general procedural Act containing specific rules on standing for the protection of specific collective interests.

4. In addition, see also other consumer law provisions as Art. 15 Distance Marketing of Consumer Financial Services Act 2007, Art. 36 Consumer Credit Contracts Act 2011; art. 21 Time-sharing Act, 2012, Arts. 12 ff General Contractual Conditions on Standard Form Contracts Act, 1998.

5. Available at http://arbitrajedeconsumo.mspsi.es/documentacion/231_2008.pdf (in Spanish).

6. For further details, ff. 10, 11 and 12, Commission Recomendation 11 June 2013.

7. Requejo Isidro/ Otero Crespo, Collective redress in Spain, 2012, p. 316.

8. There are two possible proceedings 'juicio ordinario' and 'juicio verbal'.

9. This is clearly contrary to the Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations fo rights granted under Union Law, 11 June 2013, where the opt-in principle is considered to be the general rule ('Any exception to this principle, by law or by court order, should be duly justified by reasons of sound administration of justice). See ff. 21.

10. Requejo Isidro /Otero Crespo, Collective redress in Spain, 2012, p. 316.

11. On contingency fees/ quota litis agreements, see also the Decisions of the Supreme Court 357/2004, 13 may (RJ 2004, 2739) and 446/2008, 29 May (RJ 2008, 4164).

12. From the Spanish perspective the regulation of 'Funding' in the Recommendation is quite illustrative as it provides for a series of criteria to be taken into account within a system that ignores the institution itself.

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