1. The specific problem posed in the proceedings commenced at the CJEU by the request for a preliminary ruling from the Barcelona Companies Court No. 9 (Case C-381/14/2014/C 388/03), in respect of which the Advocate General has delivered the opinion under review, consists on whether a collective action to safeguard the rights of consumers (art. 11(2) and (3) of the Civil Procedure Act [abbrev. LEC]) has precedence (ex Art. 43 LEC) and, therefore, has the effect of staying proceedings initiated subsequently by individual consumers to safeguard their individual rights, pursuant to the standing (locus standi) accorded to them by art. 11(1) LEC. More broadly, however, the question also arises as to whether, at least in cases where both collective actions and individual actions are actions seeking an order to repay an amount or to repair some damage or compensate for losses, the former (or rather the proceedings thus commenced or judgment thereat given) produces lis pendens or res judicata in respect of the latter. The judgment of the Asturias Audiencia Provincial (F irst Cha m be r) of 19 D ecem be r 2014 (AC/2014/2138), sets out the three positions that exist in national law, and which also appear in the opinion of the Advocate General: “[court decisions] ordering a stay of the relevant proceedings pending a final decision in the Madrid Court proceedings, a second one (constituting a minority view) finding not a preliminary matter for reference but lis pendens (or res judicata), leading to the shelving of the proceedings and, finally, a third one (the majority view) which rejects both”.
  2. The opinion reached by the Advocate General in the proceedings brought by the aforementioned request for a preliminary ruling refers only to the preliminary question of precedence under art. 43 LEC of collective actions (for an injunction) over individual actions, which appears in the following point: “[i]n light of all the foregoing considerations, I am of the opinion that, having regard to the principle of effectiveness, Article 7 of Directive 93/13 is to be interpreted as not precluding national procedural rules, such as those at issue in the case in the main proceedings, which permit the staying, on grounds of civil procedural precedence, of individual actions brought in parallel to a collective action for an injunction pending the delivery of a final judgment concluding the collective proceedings, provided that such a stay is neither mandatory nor automatic and provided that the consumer concerned is able to dissociate himself from the collective action”. Together with this, and for the purposes I will state next, the following should also be highlighted: “[if] it is to be accepted that the abstract, general assessment of whether or not a contractual term is unfair that is to be carried out in a collective action for an injunction pursues a different aim from that pursued in an individual action, which entails a specific examination of the contractual term in the light of the particular circumstances of the case, then it must also be accepted that, in principle, the judgments handed down in collective actions and in individual actions may differ, even if they are seldom contradictory. Accordingly, a consumer who decides to act in his individual capacity should not be directly affected by a judgment delivered in collective proceedings, even though the court hearing his individual action will obviously take that judgment into account”.
  3. In my opinion, the above conclusions regarding the “independence” of collective actions (for an injunction) and individual actions for the purposes of civil procedural precedence (and previously the lis pendens and res judicata preclusion) are admissible when a collective action for an injunction is brought, but do not apply when the “collective” action (joined to that for an injunction and, where appropriate, for an annulment: see art. 53, III of the Consumer Protection Act ) and subsequent individual action concern an order to repay an amount of money to, repair damage or compensate for losses suffered.
  4. In such cases it seems that the decision handed down, both when allowing and disallowing, affects consumers that are parties to the proceedings commenced with the collective action, consuming their individual action: the objections of lis pendens or res judicata will come into operation because the first proceedings (reparatory collective action) the consumer who intervened from the beginning (as co-litigant) or pursuant to the invitation made under art. 15 LEC could assert his right without any restriction, so that the same (the right) was discussed – or could be discussed – fully. This conclusion would only be debatable if the possibility that the consumer is involved in reparatory collective action cannot be assimilated to the bringing of an individual action. And that seemed to be the understanding of the Court hearing the claim filed by ADICAE and also the CJEU Advocate General, for whom the consumer would be constrained by the approach which the consumer protection association has taken to the case and would be unable to alter its substance or include other claims. In my opinion, however, affected consumers intervene pursuant to the publishing provided in art. 15 LEC “in order to enforce his individual rights and interests” (art. 15(1)) and such (intervention) is subject to the rules of art. 13 LEC, pursuant to which “the intervener shall be regarded as a party to the proceedings for all intents and purposes and shall be entitled to support the claims made by co-litigants or those which the intervener himself makes if he has a procedural right to do so, even
  5. if his co-litigants abandon their action, acquiesce to their opponent’s claim, discontinue or withdraw from the proceedings for any other reason”. With regard to potential affected consumers for whom protection was also requested by the claimant association bringing the collective action despite such consumers not participating in the proceedings, I believe that the invitation made under art. 15 LEC is not sufficient to justify the extension to them of the res judicata effects of the judgment art. 222(3) LEC seems to provide. The relationship between these two articles (222(3) and 15 LEC) with art. 221 (providing the content of the judgment in these cases), despite the obvious difficulties of interpretation, leads to the conclusion that the res judicata of the allowing judgment (and previously the lis pendens) will affect, in the case of collective actions in a strict sense (for the protection of certain or ascertainable consumers), only non-participating consumers who are individually ascertained therein (the judgment), in accordance with art. 221(1)(1) LEC. And in the case of (reparatory) actions for the protection of the rights of uncertain or not easily ascertainable consumers, such (res judicata or lis pendens) effects will not arise against non-participants, who, however, may assert their rights or interests under the provisions of arts. 221 and 519 of this Act or, where appropriate, bring individual actions; with the peculiarity that in cases where, “as a preliminary finding or as the court’s principal or sole ruling, a given activity or particular conduct is declared unlawful or inconsistent with the law, the court shall indicate in its judgment whether, in accordance with the laws on the protection of consumers and users, that declaration has procedural consequences that are not limited to the parties to the relevant proceedings” (art. 221(1)(2) LEC); that is, as stated in the judgment of the Supreme Court of 17 June 2010 (RJ 2010/5407), “[satisfaction of] the requirement of identity of parties to find that lis pendens or res judicata applies... should be determined on the basis of the harmed persons in respect of whom the bringing of the action is confined“.