Under Spanish law, collective actions are allowed to protect the interests of consumers including “users”.
Consumers are defined by the Law on the Protection of Consumers and Users (“LPCU”) (Law 26/1984, of 19 July) as a natural or a legal person acquiring, using or enjoying real estate, products, services, activities or functions as a final recipient.
Article 11 of Spanish Procedural Law (Law 1/2000, of 7 January) provides that consumers have the right to act together in defence of their common interests.
There are two different types of interest which can be protected under Spanish law:
1. Collective Interests
A Collective Interest exists when a group of consumers each bound by a contractual relationship with a seller, suffer damage arising from the buyer-seller relationship. The consumers must be identified - or at least readily identifiable.
In order to bring a claim, consumers either
enter into a contract with a third party, for example, a consumer protection group; or
bring the action together as a group of consumers who have suffered loss.
Article 256.1.6º of the Spanish Procedural Law allows for preliminary proceedings whereby defendants to Collective Interests litigation can ask the Court to search for all consumers who have suffered damage falling within the scope of the Collective Interest group. The Law states that the Court shall adopt any appropriate and relevant measures to identify all consumers affected.
2. Diverse Interests
Diverse Interests are the interests of a group of consumers who are linked only by factual and contingent circumstances (e.g. the consumers affected by a defective product) - and not by means of a legal relationship between the members of the group of consumers and a third party. It is generally more difficult to identify consumers with Diverse Interests.
For Diverse Interests, only “representative associations” of consumers can issue collective claims. Under Spanish Procedural Law, the “representative associations” are those associations, federations and confederations with representation in the Council of Consumers and Users.
In this way, the representative associations are entitled to bring claims - not only for the defence of the consumers which are members of the association - but also for those consumers which may not be members of the association.