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Spain

Author: María Paz García Rubio / Marta Otero Crespo

III. Sectoral Collective Redress Mechanisms

A. Consumer law

1. Scope

Consumer law has proved to be the most effective in protecting consumers and users from the 'collective' damages caused by the consumption or use of defective products. In fact, Spanish law has dealt with some consumer collective redress cases but these mechanisms have not been generally used as a means of consumer protection. It has to be pointed out that consumer law provisions granting standing to file a collective action are dispersed through different regulations as LEC or specific consumer law or even product liability acts.

2. Standing

As described above, 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 and some authorized entities shall also start proceedings to defend collective and diffuse interests of consumers and users.

3. Procedure

a. Opt- in; opt-out procedure

It is difficult to classify this procedure as opt-in or opt- out. Following the general Spanish model probably it has been conceived as an opt-in procedure although we cannot determine that it really works like this in practice. The Court's decision has the force of res judicata between the parties. However, when 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 judgments can affect the non-claimant persons who were entitled to the fundamental rights protected by Art. 11 LEC (see above arts. 221 and 222 LEC).

b. Competent court

There is no special jurisdiction dealing with consumer collective redress cases. Civil Courts are the common jurisdiction with the exception of potential civil liability arising from a crime, where Criminal Courts may have competence . Under special circumstances, Administrative courts may be competent as well: these are the cases where the Public administration is the defendant party (art. 139 ss. Administrative Procedure Act).

c. Participation of foreign plaintiffs

There is no restriction in this matter. Foreign claimants are free to participate.

d. Certification criteria

There is no certification process as such. However, consumer associations entitled for issuing a claim in collective redress cases are defined in Art. 23 Royal Decree 1/2007: they must have legal ability, be not-for-profit, and with constitutive objectives to protect consumer interests. Once these associations have proven their legal standing to file a suit, there are no further requirements.

e. Main procedural rules

Ordinary procedural rules (LEC) are applied here.

f. Evidence/ discovery

There are no special rules neither on evidence nor discovery. Nevertheless, as stated above, criminal proceedings may be used in mass damages cases to ask for civil liability arising from a crime.

g. Multi-stage process

The procedure is a single-stage process.

4. Available remedies

Before the LEC in 2000, collective redress devices were available only for the purposes of cessation or prohibition and by means of a cluster of special provisions. Compensatory or injunctive relief are now available following the enactment of the LEC in 2000 and, since its amendment in 2007, in consumer or equality law proceedings as well.

5. Costs

The 'loser pays' rule applies under Spanish law. Furthermore, contingency fees are valid as third party funding, but the latter has never been used in practice. Free justice benefits are available under the Free legal assistance Act as well.

6. Number of claims

The procedure has been used in a great number of cases requesting for injunctive or declaratory relief. In the last few years this tendency has changed as now claimants ask for compensatory relief. However, due to procedural restrictions in appealing, only a few cases are heard before the Supreme Court.

7. Particularities if mechanism is used in cross- border cases

Collective redress cross-border cases are still unknown in Spain at the moment.

8. Critiques regarding the system

Besides its existence this mechanism has rarely been used in practice. Individual claims are still the preferred option in Spain. This lack of pro- collective actions tendency has been shown recently in the so-called preference shares cases, where individuals prefer to file a single case rather than a collective claim involving small investors.

On March 2014, Art. 11 LEC was modified. As mentioned above, the new wording contains a new paragraph 5, under which the Public Prosecution Service is now empowered to file any type of claim before the Courts - please note that prior to the reform, the Public Prosecution Service could only file a petition for injunctions. These new powers may raise new procedural problems as it seems difficult to predict how the system will work in cases in which the Public Prosecution Service lodges a claim asking not only for injunctive relief but also for compensation - Would this work as an opt-in or an opt-out procedure? What about the res judicata effect?

B. Competition law

Selected unfair competition actions may be taken by associations, professional corporations or representatives of economic interests when the interests of their members are affected (Art. 32 and 33 Unfair Competition Act 1991 - Ley de Competencia Desleal).

C. Product liability law

See Consumer Law section above. As mentioned before, in Spain it is difficult to draw a clear line between product liability and consumer law cases as consumers or consumers' associations file many product liability cases.

D. Other areas

1. Equality Law

Art. 19 Act on equal opportunities. This provision deals with equal opportunities, non- discrimination and universal accessibility for disabled people 2003 (Ley de igualdad de oportunidades, no discriminación y accesibilidad universal de las personas con discapacidad). Legal entities, under certain criterion, are also entitled to defend collective interests and rights in order to ensure the effectiveness of the right to equal opportunities.

2. Environmental Law

Art 42 Environmental Liability Act 2007 (Ley 26/2007, de responsabilidad medioambiental) contains mainly administrative provisions, but according to Arts 41 and 42 collective, physical and legal persons (under certain circumstances) can initiate proceedings (as interested parties) in environmental damage cases.

3. Labour Law

Trade Unions, under certain circumstances, have standing to promote the defence of workers' collective interests. Under Arts. 153- 162 the legislature designs the 'collective conflicts' proceedings .

1. The Spanish Criminal Code has provisions on civil liability arising from a crime. This particularity has historical grounds and it is related to the late approval of the Spanish Civil Code.

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