CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
including initiating class actions on behalf of affected consumers. • Consumer associations: these must be legally recognised and have been established for at least six months prior to filing the class action. The association’s board of directors must formally authorise the action. This requirement ensures that only established and credible organisations can represent the class interests of consumers in legal proceedings. • Groups of consumers: a group of no fewer than 50 individuals, each sharing a common grievance and concern arising from the same anti-competitive conduct. Each member of the group must be duly identified, ensuring accountability and legitimacy in representing the affected consumer base. 4.2 Opting In or Out The Chilean class action system considers both an opt-out and an opt-in mechanism, depending on the stage of the proceedings. In accordance with Article 53 of the Consumer Pro - tection Act, once the class action has been filed and declared admissible, and certain publicity formalities have been completed, no other person may initiate another class action lawsuit against the defendant based on the same facts. Nevertheless, consumers who may consider themselves affected are granted a 20-day period to appear in court, to reserve the right to file their own claim, in which case the results of the class action will not affect them. In this sense, class actions in Chile can be considered opt-out actions. Within the same 20-day period, consumers can alter - natively appear in court to become a party to the trial. However, becoming a party only has the effect of allowing the consumer to assert their own claims at trial and of precluding the consumer’s right to take legal action based on their individual interest, but is not required for the consumer to be considered a mem - ber of the class. Instead, pursuant to the Consumer Protection Act, an enforceable judgment declaring the liability of the defendant has an erga omnes effect, which means that it benefits all those who belong to the group of consumers harmed by the same facts, even if they have not yet appeared in court.
Only after the judgment that grants the class action has been issued, an opt-in mechanism operates, in which all those harmed by the events in question can claim the collection of compensation or the fulfil - ment of the corresponding relieves. For this purpose, the court must order the publication of at least two notices in newspapers and may also use other pub - licity mechanisms to ensure that the ruling is made known to all those who benefit from it. Consumers are granted a 90-day period counting from the last notice to appear in court and request compensation or reserve the right to request a higher compensation in a new proceeding, in which case it will not be pos - sible for the defendant to dispute the existence of the infringement already declared. 4.3 Direct/Indirect Purchasers Article 50 of the Consumer Protection Act distinguish - es between three types of interests that aim to be guarded by the legal actions contemplated in such legislative body: individual, collective and diffuse. • Individual interest ‒ complaints or actions brought exclusively in defence of the rights of a single affected consumer. • Collective interest ‒ class actions brought in defence of rights common to a determined or determinable group of consumers, linked to a sup - plier by a contractual relationship. To bring forth this action, the contractual relationship between the consumers and the infringer or infringers must be proved. • Diffuse interest ‒ class actions brought in defence of an undetermined group of consumers whose rights are affected. There is a significant part of Chilean doctrine that considers that the diffuse interest of consumers is not compensable, precisely because, by definition, the consumers who form part of a diffuse interest are indeterminate and undeterminable. This means that it is legally impossible to establish whether they suffered damage; that is, it is not feasible to determine who would have the right to be compensated. Therefore, other types of consumer protection actions could be based on the safeguard of diffuse interest, but not class actions for damages.
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