Class actions in Spain

  1. 1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.
  2. 2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.
  3. 3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.
  4. 4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
  5. 5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.
  6. 6. What types of relief are available, i.e., damages and/or injunctive relief? 
  7. 7. On what basis are damages calculated i.e., compensatory and/or some other basis?
  8. 8. Are punitive or exemplary damages recoverable?
  9. 9. Will domestic law need to be changed to comply with the Representative Action Directive?
  10. 10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
  11. 11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?
  12. 12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?
  13. 13. Do you have specialist courts for these procedures?
  14. 14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
  15. 15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
  16. 16. Can arbitration clauses lawfully contain class action waivers?
  17. 17. Are contingency fee agreements permissible?
  18. 18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?
  19. 19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.

Spanish law does not specifically regulate the concept of "class" or class actions as defined in other jurisdictions. However, it provides for two types of group actions aimed at obtaining collective redress: (i) collective actions (brought to protect the collective interests of an affected group whose members are identified or can be easily identifiable), and (ii) representative actions (brought for the protection of diffuse interests by a significant consumers or users associations on behalf of an affected group whose members are undetermined or difficult to determine).

Spanish law requires that collective actions and representative actions be publicised to enable potential claimants to join proceedings, as well as to seek their individual damages. According to article 15 of the Spanish Civil Procedural Act (Ley de Enjuiciamiento Civil), the court clerk shall publish the admission of the claim in the media at the appropriate territorial level. Additionally, for cases in which the affected group members are determined or easily identifiable, the claimants need to inform the remaining affected group members on their intention to bring the action before filing the claim.

In claims where the group members are identifiable, individual members may join the proceeding as a claimant at any time and participate in all procedural steps from the time of their joining.

If, however, the members of the affected group are not determinable, the publication of the admission of the claim will lead to a stay of the proceeding for a maximum period of two months, during which individual claimants may join the proceeding.

2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.

Spanish law does not provide for an opt-out mechanism.

3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.

Rules on legal standing depend on whether the proceeding is a collective action or a representative action.

For collective actions, the claim may be brought by a group of affected individuals, by consumers and users associations or by legally incorporated entities whose purpose is to protect the interests of consumers and users. Representative actions, on the other hand, may only be brought by representative consumers and users associations.

4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?

Collective actions are more frequent than representative actions.  To date, most claims have concerned financial services and utilities, but claims are increasing in other areas including in data protection.

For the time being, there are no current proposals aimed at modifying the current regulations that govern these types of actions.

5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.

There are no limitations regarding the area of law for using these procedures provided that the interests or rights of consumers and users are involved.

6. What types of relief are available, i.e., damages and/or injunctive relief? 

Damages may be awarded as compensation. Preliminary measures such as the disclosure of documents are also available before initiating the proceeding.

7. On what basis are damages calculated i.e., compensatory and/or some other basis?

Compensatory.

8. Are punitive or exemplary damages recoverable?

Punitive damages are not available under Spanish law, nor are exemplary damages.

9. Will domestic law need to be changed to comply with the Representative Action Directive?

Yes.

10. Are there special rules for settlement of class actions, e.g., requirement for court approval?

General rules on settlements are applicable. If there are several defendants, each of them may settle separately and the settlement agreement will only bind the parties thereto.

11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?

There are no special rules for class action procedures.

12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?

Certification does not exist under Spanish law for these proceedings. However, the described requirements on legal standing described at Question 3 above are essential.

13. Do you have specialist courts for these procedures?

No. The claim shall be heard by the competent court based on the nature of the matter.

14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?

No, there are no special rules for discovery/ disclosure for class action procedures. Same general rules for unitary actions apply.

15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?

There are no special rules for appeals in class action procedures.

16. Can arbitration clauses lawfully contain class action waivers?

There are no specific rules on the matter, it shall depend on whether the contract and specific clause meets the general requirements for validity.

17. Are contingency fee agreements permissible?

According to the Spanish Lawyers' Deontological Code (Código Deontológico de la Abogacía Española), contingency fee agreements are not allowed. However, based on a judgment by the Spanish Supreme Court dated 4 November 2008, it was concluded that this prohibition could restrict competition in the legal market due to its preventing lawyers and clients from negotiating freely over the lawyer’s fees. This led to contingency fees being allowed, but the "no win, no fee" rule is not permitted.

18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?

The general rule is that the losing party must pay costs. Costs are appraised under the relevant scales for court attorneys and the criteria for the relevant Bar Association and approved by the court clerk. The scales and criteria take into account the circumstances of the case, such as the monetary value of the claim, procedural steps carried out, work related to the relevant procedural steps, etc.

19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

Third-party litigation funding is not regulated under Spanish law (i.e. it is not prohibited). It is not a common practice.

See the Overview of the Representative Actions Directive >>
Portrait of Juan Ignacio Fernández Aguado
Juan Ignacio Fernández Aguado
Partner
Madrid
Portrait of Elisa Martín
Elisa Martín
Senior Associate
Madrid