SPAIN: An Introduction to Litigation: Elite

There have been significant changes made to the Spanish dispute resolution framework in 2025, particularly in the field of collective and mass claims, with the long-awaited introduction of new legislation to implement the Representative Actions Directive (EU) 2020/1828 (RAD). Also of note are further reforms of the Spanish Civil Procedure Act (SCPA) and the Spanish court system that aim to increase the courts’ efficiency and to incentivise parties to turn to ADR. Other areas that will see increased activity are antitrust damages, data, and ESG, as Spain prepares to implement relevant EU reforms in important fields such as product liability.

SCPA: Court System Reforms and a Legislative Push for ADR

The new year will bring important reforms to the SCPA and, overall, to the Spanish court system. The ground has shifted under the SCPA as parties (excluding consumers) will (from 3 April 2025) need to show that they have turned to (or attempted) some sort of ADR (including, inter alia, negotiation, conciliation or mediation) before being able to bring a court claim. The legislative purpose of this reform is to ease the burden on Spain’s overloaded courts, but the implementation of this new ADR prerequisite will likely bring litigation and uncertainty of its own.

In addition, the Spanish court system will undergo significant changes as the new first instance tribunals (tribunales de instancia) come into being. All individual courts that had previously been headed by a single judge will be amalgamated to form a single unified collegiate tribunal with no individual boundaries. This will pose significant challenges at a time when practitioners have been calling for more specialised tribunals.

These two latest reforms have been approved only a year after Spanish legislators introduced new mechanisms such as the so called “lead case” (pleito testigo), whereby individual consumer claim proceedings concerning the same general contractual conditions can be stayed until the first case — the lead case — is decided as a matter of priority (including any appeals), and the extensión de efectos (extension of effects) mechanism, under which cases involving the same defendant can be decided automatically whenever a final judgment has been rendered in a previous and identical case (involving the same general contractual conditions), applied.

As a result, 2025 will be a year in which parties will find themselves exploring uncharted territory in Spanish litigation, just when corporations have also been navigating the challenges of the new electronic service of process mechanisms (including via email) that were introduced last year.

Mass and Collective Claims: A Paradigm Shift

After a long wait (which brought Spain close to being sanctioned by the EU Commission), in 2025 the Spanish legislature will finally approve the implementation of the RAD after some spur-of-the-moment legislative stunts (like abandoning the implementation of the RAD on the eve of its approval in October 2024). 

The new regime seeks to implement an opt-out mechanism under which consumers will be bound by the result of collective proceedings related to a specific act (including as regards compensation) unless they explicitly request to be left out. This would be an unprecedented change in Spanish litigation (although plaintiffs will still be allowed to opt in to join proceedings in specific circumstances or judges may decide under certain requirements that opt-in is more suitable). Some operators are still pushing for a full opt-in model and there is little certainty as to which model will ultimately prevail.

The new regulation will also tackle third-party funding, which will be subject to scrutiny (to avoid possible conflicts of interest) throughout the main phase of the proceedings (the “certification phase”, during which key issues such as standing, or the homogeneity of the claims, will be decided before the claim can move forward as a collective claim).

Standing to bring collective claims will only be attributed to previously registered consumer associations. The new rules also allow for wide-ranging document disclosure (importing the mechanism that currently operates only for follow-on competition damages claims).

Antitrust Damages Litigation: From the Judicial Estimation of Damages to New Claims

Spain will continue to be one of the most active EU jurisdictions in antitrust follow-on damages litigation. Bolstered by the Supreme Court judgments in June 2023 and March 2024 and the introduction of court-led damages estimations, Spanish courts will become busier in this field.

Implementation of the RAD and the brisk activity of litigation funders will contribute to the growing number of court dockets featuring such cases, as the self-funded and highly active plaintiff bar have announced their intention to roll out further claims in new fields, such as hospitality.

Data Protection and the Digital Economy: Fertile Ground for New Claims

On the back of the RAD implementation, data protection-related litigation will continue to increase in Spain through collective actions, although we may also continue to see individual claims. Businesses operating in Spain are also paying close attention to the implementation of the EU Digital Markets Act and the EU Digital Services Act, which could open up new avenues for private enforcement in various fields of the digital economy.

Product Liability: New EU Directive

The new Product Liability Directive, which entered into force on 8 December 2024, will introduce (once implemented) very significant claimant-friendly changes to the current Spanish regime, including:

• expanding the scope of the definitions of “product” (to include software, for example) and “damage” (to include medically recognised psychological harm and loss or corruption of data);
• broadening the list of potential defendants to include additional stakeholders in the supply chain;
• creating rebuttable presumptions as to defect and causation to help claimants prove their case; and
• requiring member states to instigate important procedural changes, including the introduction of disclosure requirements and extending the limitation “longstop” in cases of latent harm.

As for disclosure (which, pending the implementation of the RAD, is very limited in Spain), a failure to comply with a requirement to disclose will give rise to a rebuttable presumption as to defect. The link between non-compliance with a disclosure order and presumptions of fact is alien to many European jurisdictions, including Spain where, for instance, non-compliance with disclosure may only allow the court to make presumptions about the content of the non-disclosed documents.

ESG: First Greenwashing Decision in Spain

In the ESG sphere, the first greenwashing decision concerning “green” marketing and corporate branding has been handed down in Spain. A commercial court in Santander dismissed a greenwashing claim based on the current Spanish Unfair Competition Law. But this judgment has raised expectations as to the impact on both unfair competition and consumer claims of Directive (EU) 2024/825 empowering consumers for the green transition, which is still to be implemented in Spain.