The notes included below are therefore based on the proposal, which should be re-sent for parliamentary discussion arguably early next year.
Rules for commonality of claims/class certification
The statement of claim should state, among others, (i) consumers to be affected by the collective action or, if individual identification is impossible, the characteristics and requirements of the eventual beneficiaries; and (ii) the existence of homogeneity between the claims.
The defendant may object to (i) and (ii) and the parties will be summoned to a certification hearing.
The court shall individually determine the consumers to be affected by the action, or if not possible, declare the characteristics and requirements that must be met to be considered as beneficiaries.
The court shall only certify the collective action if homogeneity is sufficiently proven. Homogeneity shall be deemed to exist if it is not necessary to consider factual or legal aspects that are particular to each of the consumers.
The decision on the certification of the collective action can be preferentially appealed.
Class member participation (opt-in/opt-out)
- Consumers domiciled in Spain: opt-out system, so the process will bind all those affected, unless they expressly request to be excluded. Consumers will have to expressly state their wish to withdraw from the action within two to six months.
- Exception: if advisable for the good administration of justice, provided that the amount claimed for each beneficiary exceeds EUR 3,000, the Court can (but is not obliged to) process the collective action by means of an opt-in system.
- Consumers domiciled outside Spain: an opt-in system shall apply. The court shall establish the manner and time limit for consumers to join the action.
Both appeal (i.e., 2nd instance) and extraordinary appeal before the Supreme Court, preferentially processed, are foreseen.
The claim must fully state the sources of funding including the existence of financing by a third party, which shall be duly identified. Two discussions could take place:
- The judge may request the financing contract to verify if its terms affect consumers rights, for discussion at a meeting with all parties and the funder.
- In the certification hearing, the defendant shall be entitled to allege about the financing of the proceedings by the claimant. The court shall refuse third party funding if it considers that:
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- There is a conflict of interest which shall be deemed to exist if the defendant is a competitor, or a person subordinated to the funder; the decisions of the claimant are influenced by a funder in a way that may be detrimental to the collective interests of the consumers.
- The funder has an economic interest in the exercise or outcome of such an action that would remove the class action from the protection and defense of the rights and interests of consumers.