Date of the last update: 22nd March 2024.

Types of class action mechanisms. General characteristics

The institution of class action was introduced into Spanish law in 2001 with the entry into force of the Civil Procedure Act (Ley de Enjuiciamiento Civil) and, like in Italy, it is meant to protect consumer interests. However, it is worth noting that the Spanish law adopts a broad meaning of a ‘consumer’ – it is each (also a legal) person who did not act as an entrepreneur or professional in a case.

Spanish law distinguishes two types of actions aimed at protecting the interests of multiple consumers:

  • actions to protect collective interest (collective actions) – initiated when an injured party is known or easily identifiable (un grupo de consumidores o usuarios cuyos componentes estén perfectamente determinados o sean facilmente determinables– Article 11.2 of the LEC); the collective action may be brought by a consumer organisation, other authorised entities (e.g. a public prosecutor), as well as by groups of consumers;
  • actions for the protection of diffused interests of consumers (diffused interest actions, intereses difusos) – initiated when consumers injured may not be identified or identifying them is highly difficult (una pluralidad de consumidores o usuarios indeterminada o de difícil determinación– Article 11.3 of the LEC); diffused interest actions may be brought only by designated consumer organisations (precisely: one organisation – cf. hereafter) and other authorised entities (e.g. public prosecutor).

The Spanish law requires announcement of action initiation by media. It refers both to the collective action and diffused interest action. In the first case, the proceedings are suspended for a period set by the court (no longer than two months) during which injured parties may express their intent to participate in the proceedings. In the second case, the proceedings are not suspended and injured parties may opt in on the claimant’s side at any time.

Notwithstanding the abovementioned regulations, if persons injured are known or they may be easily identified, the claimant is required to notify each of them – before bringing an action – of the intent to file a claim.

It is difficult to conclusively categorise the class action mechanism functioning in Spain as either opt-in or opt-out model.

The collective action refers to the opt-in model. The ruling rendered in this proceeding is not binding for those injured consumers who did not opt in. They retain the possibility of pursuing claims against the entrepreneur individually.

On the other hand, diffused interest action refers more to the opt-out model. The judgement rendered in this proceedings is absolutely binding by virtue of law for all persons affected by a given event. If the claim is dismissed, persons injured as a result of the act do not have an opportunity to pursue individual actions, even when they did not opt in. In order to be actively engaged in the matter, consumers may clearly opt in, but it is impossible for them to except themselves, no matter whether they have opted in or not.

Conditions of admissibility and the procedure

Collective redress is possible only in cases of damages caused by infringement on consumer rights – including competition and antitrust law. Consumers’ claims must arise from the same event.

A collective action may be brought by consumer organisations (which then act on behalf of injured consumers), other authorised entities (e.g. a public prosecutor), as well as by a group of consumers, provided the group covers the majority of consumers affected by a given event.

When it comes to the right to bring forth an action for protection of consumers’ diffused interests – only sufficiently representative consumer organisations and other authorised entities (e.g. public prosecutor) are entitled.

Statement of claims is heard by a court with a general jurisdiction over the nature of the case – there are no specialised courts dedicated to class actions.

The type of relief (legal protection) that may be obtained (court decision)

A class action may result in obtaining compensatory damages – the so-called punitive damages are prohibited. Furthermore, the court may impose on entrepreneurs specific injunctions or orders related to the infringement of consumer rights, competition law, or unfair practices. It may also rule that the defendant-entrepreneur’s actions constituted an infringement of law – and order to make the judgment public by media.

Costs and manner of financing the proceedings

Essentially, in case of both aforementioned mechanisms, only the unsuccessful party is obligated to reimburse the successful party for the costs incurred. If the claim is awarded in part only, the court desists from adjudicating on costs and each party bears the expenses connected with their activities in the case.

In practice consumer organisations initiating class actions frequently enjoy the support of the state.

Agreements between an attorney and a claimant rendering the attorney’s fee dependent on the outcome of the trial are admissible only if any minimum remuneration is guaranteed.

Practice and significance of the institution. Development trends

In Spain, unlike in other European countries, class action does not cause much debate. However, a gradual increase in consumer awareness is taking place – and the significance of the above-described mechanisms is also on the rise. The most frequently initiated actions are those brought by consumer organisations against entrepreneurs from the telecommunications and financial sectors as well as actions related to the use of abusive clauses.The debate concerning amendment of group proceedings intensified in 2017 following implementation of the Directive 2014/104/EU concerning redress for damage caused by infringement of competition law. It was expected to be an occasion for extending the institution of class action to groups of injured entrepreneurs. However, no appropriate changes of regulations have been introduced, yet.

Another manifestation of a tendency towards changing the regulation in force came as a (eventually non-adopted) parliamentary draft of the reform of the Civil Procedure Act submitted on 6th April 2018 in Spanish parliament. The draft primarily provided for giving consumer groups the direct right to initiate proceedings protecting both collective and diffused interests. The requirement for consumers initiating the proceedings to prove that the group covers the majority of consumers affected by a given event was also meant to be abolished. The aforementioned requirement had, namely, the effect that in practice consumers did not enjoy the possibility to directly initiate the proceedings and were forced to exercise their privileges through the agency of community organisations or public entities, e.g. public prosecutor.

Implementation of European Parliament and Council Directive (EU) 2020/1828

At first, it seemed that since Spanish law does not significantly deviate from the requirements of the Directive of the European Parliament and of the Council (EU) 2020/1828 of 25th November 2020 on representative actions brought for the protection of the collective interests of consumers and repealing Directive 2009/22/EC, as a result of its implementation – Spanish regulations on group proceedings will not be subject to a major change.

However, on the 20th December 2022 the draft legislation implementing the Directive was adopted (on 9th January 2023 it was made public for consultation), which turned out to be detailed and extensive in scope, and, most importantly, introduces significant modifications to the previously functioning procedural solutions. The draft provides for the addition of a new Title IV to Book IV of the Spanish Civil Procedure Code, consisting of 58 articles. According to the draft, the scope of the subject matter of the regulation is to be broader than the one provided for in Annex 1 of the Directive.

At the moment, the aforementioned regulations have not yet been implemented into the Spanish legal order.