29 november 2018

Title: The preliminary proceedings to identify the easily determinable members of the group of affected consumers.

Author: José María Albert Garrido

The jurisdictional protection of consumers and users from the national procedural perspective meets the interests that can coincide in this legal sphere of consumption with a distinct trilogy. Indeed, we are referring to the individual interest, collective interest and diffuse interests. The individual protection consists, ultimately, in the practice by anyone in particular by means of the interposition of an individual action before a judicial body.

The problems of effectiveness or justice that derivate from an individualised litigation between parties that are presumed different (contradictory resolution, legal expenses that not only hinder the effective remedy, but can also lead to terminate it de facto, difficulties or probative inequalities between the people affective by the same situation, etc.) seem self-evident. This, apart from the cost for the public resources that derivate from an increasingly recurrent identical massive litigation that collapse our courts. One could say that collective litigation is the most effective mean for the defence of individual parties (especially consumers) in scenarios of massive consumption of goods and services common in the modern economy.

In this context, the Law 1/2000, of the 7 January, of Civil Procedure (hereafter, LEC) as the explanatory statement indicates, seventh indent, introduced a series of developments in the field and significantly recognised this kind of supra-individual protection by the first time. More specifically, our legislator configures within the supra-individual procedural plane the so-called class actions, on the one hand, with a protection that is applicable when the members of the affected group are easily determinable (which implies the existence of a collective interest) and, on the other hand, when they are difficult or impossible to determine (diffuse interests).

Identifying the affected consumers will make it possible to determine when we are dealing with collective and diffuse interests

As a matter of fact, the possibility of determining or finding out the affected consumers is vitally important from the procedural point of view in several points of our procedural system. Firstly, obviously, it will make it possible to distinguish when we are faced with collective and diffuse interests. However, this determination will also make it possible for those legitimated for the defence of consumers and users and for those affected by the recognition of their capacity to be part of a group (art. 6.1.7º LEC when constituted by the majority of affected parties) to exercise their rights in a much more effective manner by knowing the identity of the affected consumers.

To this end, article 256.1.6º of the LEC establishes a preliminary diligence consisting of the judicial petition of whoever intends to initiate a process for the defence of the collective interests of consumers and users in order to concretise the members of the affected group when, not being determined, they are easily determinable. To this effect the tribunal will adopt the appropriate measures for the investigation of the members of groupaccording to the circumstances of the case and to the data supplied by the applicant, including the request to the defendant to collaborate in such determination.

In practice, this diligence that undeniably affects the fundamental right to the effective judicial protection of consumers and users collides with the fundamental rights of third parties that are affected as a consequence of this investigation and generates obvious doctrinal and practical problems in its interpretation.

Our ordinance establishes a preliminary diligence to practice before any person who may have data that would allow the identification of the members of the group of consumers and affected, and the judge must resolve it inaudita parte

Be that as it may, our law establishes a preliminary diligence to be practiced in front of any person who may have data that would allow the identification of the members of the group of consumers and affected, and the judge must resolve it inaudita parte adopting the appropriate measures for the investigation of the members of the group if those proposed for adoption concurred, that is, legitimate interest, just cause, adequacy, proportionality and instrumentality. All of this, of course, through a specially motivated resolution, exteriorizing the elements of judgment on which resolution is based, in such a way that the factual and legal reasons are perfectly exposed and, furthermore, it must be submitted to a strict proportionality judgment, as an inherent principle of the Rule of Law, whose condition of constitutionality canon has special application when it comes to protecting fundamental rights against limitations or constrictions that come from singular rules or resolutions.