SPAIN Law and Practice Contributed by: Iñigo Igartua Arregui, Eduardo Gómez de la Cruz, Andrea Díez de Uré and Jesús Urriza Rodríguez, Gómez-Acebo & Pombo
4.2 Opting In or Out The draft law adopts, as a general rule, an opt-out system. This means that all consumers affected by the conduct at issue would automatically be included in the collective action and bound by its outcome, unless they expressly declare their wish to be excluded within the period established by the court. Exceptionally, the court may decide to apply an opt-in system – where only those who expressly request to be included are bound – when the value of the claim for each beneficiary exceeds EUR3,000 or when cir - cumstances so require for the proper administration of justice. For consumers residing outside Spain, the opt-in sys - tem is always applied. For injunctive actions (action to cease in a conduct), there is no need for consumers to opt in or out, as these actions are designed to protect collective inter - The draft law does not explicitly distinguish between direct and indirect purchasers in the context of collec - tive actions. The focus is on the collective protection of consumers who have been harmed by the same infringing conduct, regardless of whether they are direct or indirect purchasers. The definition of the affected class is based on the characteristics and requirements set by the court in the certification order, which may include both direct and indirect purchasers if they meet the criteria estab - lished for the class. The law’s primary concern is the homogeneity of the claims and the causal link between the infringing con - duct and the harm suffered, rather than the specific position of the purchaser in the distribution chain. 4.4 Class Certification The draft law introduces a formal class certification procedure as a central feature of the collective action process. ests without individual participation. 4.3 Direct/Indirect Purchasers
After the filing and admission of the collective action, the court convenes a certification hearing ( audiencia de certificación ) to determine whether the action is appropriate for collective treatment. The court must verify the homogeneity of the claims, the existence of a common infringing conduct, the collective harm, and the causal link, ensuring that individual factual or legal issues do not predominate. The court also examines the legitimacy of the claimant entity and the adequacy of the proposed class defini - tion. Only if these requirements are met will the court issue a certification order, which defines the scope of the class and the object of the proceedings. If certification is denied, no further collective action on the same subject matter may be brought. The certifi - cation order is published and subject to appeal. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law Jurisdiction in Competition Damages Litigation Jurisdiction is primarily determined by the rules of the LEC and, where applicable, by European Union regu - lations. For cases involving cross-border elements within the EU, Regulation (EU) No 1215/2012 (Brus - sels I bis) may apply, particularly when the defend - ant is domiciled in a member state. However, if the defendant is domiciled in Spain, Spanish domestic rules prevail. Applicable Law in Competition Damages Litigation The determination of the applicable law in competition damages claims is governed by both national and EU law. For cross-border cases within the EU, Regulation (EC) No 864/2007 (Rome II) on the law applicable to non-contractual obligations applies. According to Article 6 (3)(a) of Rome II, the law appli - cable to a non-contractual obligation arising out of a restriction of competition is the law of the country where the market is, or is likely to be, affected. In the Spanish context, both LDC and LEC would apply for substantive and procedural aspects of the
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