Opt-in and Opt-out in the Spanish class actions

In Spanish the U.S. class actions are known as “acciones de clase”, but it is also common to use the English terminology, so then, in Spain the notion class action is used very often. A class action is a claim for the protection of interests related to different subjects affected by the same root cause, without a fully determined group of individuals at the time of the filing.

In Spain, class action’s regulation nowadays is just in a few articles (sections) of the LEC (the Civil Procedure Act in Spain), from which we may highlight the article 11.3 LEC: “When those damaged by an event are an undetermined number of consumers or users or a number difficult to determine, the standing to lodge a claim in court in defense of these diffuse interests shall correspond exclusively to the associations of consumers and users which, in accordance with the law, are representative”.

There are many different ways to regulate these actions, as can be seen by comparing the regulation applicable to different countries. In the Spanish law we can see a particular regulation because it does not follow any of the two basic options in this issue, but and intermediate choice. For example, in the U.S. class actions affect the whole group and give an individual right to them to opt-out, so then, each individual can choose to not be impacted by the class action trial. According to this capacity, the member is permitted to defend itself in a separate process. We should note that this option is also recognized in Portugal and other countries. Whereas in other states, such as UK, they choose to not affect all class members automatically, therefore each member should exercise their right to opt-in to be affected by the judgement. This means joining the lawsuit.

However, in the Spanish law we see a third kind of regulation located in the middle of both seen above, as we already said. Under the application of the LEC, class actions affect all group members and they are not able to exercise the opt-out right, which is a very relevant difference from U.S. law. Nevertheless, it introduces an opt-in right that is not used to being affected by the judgement, due to the fact that all members are bound automatically (ex lege). The purpose of this opt-in responds to the citizen’s right to participate in legal proceedings that concern them (in the sense of res judicata not as executing the judge's ruling).

The consequence of this regulation, which goes away from its American inspiration, ensures uniform application of law and greater judicial efficiency by avoiding duplications. Additionally, it can also produce other less obvious effects (and maybe questionable from some points of view) like the benefit of the group to use the resources for those in the best position.

We should say that the American mechanism (more liberal) was slightly modified to adapt it in a more social community, which is a common fact in southern Europe countries. Nevertheless, against this affirmation Portugal did not follow this and other places do not even have accepted class actions, as is the French case. Therefore, it becomes very difficult to explain the reasons behind these legislative differences. Anyway, those reasons already mentioned have affected to a greater or lesser extent, but sure in some sense.