Interview with Alejandro Castilla, lawyer in charge of Litigation at ESKARIAM

With regard to the new draft law on representative actions for the collective interests of consumers, will it represent a new paradigm in the handling of class actions in Spain? Do you think that the number of cases representing affected groups will increase?

The draft bill represents a clear commitment to a system of protection of the collective interests of consumers, radically different from the fragmentary, cumbersome and deficient system in force until now in our legal system, which is why the regulation is undoubtedly welcome and is a very positive step forward in the defence of consumers. Due to my professional experience, I have had very direct contact with the defence of the collective interests of consumers and users and I have been able to learn first-hand about the innumerable incidents and difficulties that this type of collective proceedings encounter in their procedural development, as well as the excessive delays that their processing entails, all of which are difficult to reconcile with the adequate protection that the injured parties deserve.

The possibilities that the regulation opens up for class actions, given the previous panorama, are certainly encouraging, especially in view of the high level of litigation that this sector of consumer protection has reached in recent years in the different areas in which consumers’ interests are at stake, which are very numerous. With the regulation now in place, the actors – entities – involved in class actions acquire not only a leading role, but above all a great responsibility for the effective defence of the interests entrusted to them and which they are responsible for managing.

The main novelty is the breaking down of the obstacles that have hitherto existed to ensure that class actions really benefit the greatest number of affected consumers, opting for an opt-out system, in which all consumers are included by default in the action, unless they expressly state their wish to be left out of it.

I believe that this system designed by the draft bill will enhance a more effective collective defence of consumers and will be a great preventive tool to discourage infringing behaviour.

What issues do you think can be improved compared to those set out in the APL?

There are issues that would undoubtedly enhance the efficiency of the process in the defence of consumers’ collective interests that the draft bill does not address or does so insufficiently.

One is the solution to the coexistence of several class actions filed on the same matter, which in ESKARIAM’s opinion should give rise, rather than to the automatic preference of the action filed first, to a presentation and debate before the judge of the merits of each of the actions (robustness and solidity of their approach, appropriate technological means for the claim, etc.) so that the judge may opt for one or the other or for the accumulation, taking into account the criterion of which best responds to the adequate and effective protection of the interests of the parties, technological means appropriate to the claim, etc.) so that the judge may opt for one or the other or for the accumulation, taking into account the criterion of which is the one that best responds to the adequate and effective protection of consumers’ interests, over and above the merely temporal criterion.

Another is the necessary, in my opinion, express inclusion in the scope of application of the draft bill of claims for damages arising from infringements of competition law. It is a fact that there has been a notable increase in this type of claim, particularly affecting consumers and users (an example of which is the car manufacturers’ cartel and other cartels), which has led to a high level of litigation with the proliferation of innumerable legal proceedings flooding the courts throughout Spain. The express legislative provision that would allow these claims to be redirected with certainty to the system of actions for the representation of collective interests would reinforce the adequate protection of consumers.

In Europe we are seeing a notable increase in class action litigation. Do you think that in Spain the door is opening to a new horizon where the consumer will have the ability to defend themselves against the unlawful abuses of large corporations?

Traditionally, our legal system has not exactly facilitated a culture in which consumers actively defend their rights in the face of the abusive practices to which they are exposed on a daily basis. Consumers have usually encountered a multitude of obstacles, economic, bureaucratic, etc., which have had a dissuasive effect on exercising the rights to which they are entitled, which, in the end, has meant that many unlawful practices by companies, harmful to consumers, have unfortunately been free to proliferate.

This situation, however, has changed considerably in recent years: the education of consumers in a culture of awareness of their rights, the greater information available to them in today’s society, the proliferation of law firms specialising in mass claims of this type that affect large groups of users have all contributed to this greater proactivity. Collective actions are, or should be, a key instrument in this direction, hence the transcendental importance of the progress that the APL represents in the design of an appropriate regulatory architecture so that its use becomes an unstoppable reality in our country.