POPULAR ACTIONS FOR THE PROTECTION OF COLLECTIVE INTERESTS^*
José OVALLE FAVELA^**

Original Text (Spanish) PDF

SUMMARY
I. Introduction. II. Group and collective interests. III. Popular actions. IV. Popular and group actions in Colombia. V. Collective actions in Spain. VI. Group actions in Mexico. VII. Final considerations.

In order to develop this subject, the two general coordinators of this project, Humberto Teodoro Junior and the author of this article, agreed that the former would deal with Portugal and South America, with the exception of Colombia, and the latter, with Spain, Colombia, Central America and Mexico.

In order to prepare this paper, I asked for and received national reports from the following colleagues:

1. Mario Aguirre Godoy, Guatemala.

2. Sergio Artavia Barantes, Costa Rica.

3. Lorena Bachmaier Winter, Spain.

4. Orlando Guerrero Mayorga, Nicaragua.

5. Jairo Parra Quijano, Colombia.

These national reports form the fundamental bases of this paper.

Before beginning with the analysis of these national reports, it is essential to attempt to define the meaning of collective and group interests, which are protected by the actions that are the topic of this paper.

In a classic work on this subject, Vincenzo Vigoriti differentiated collective interests from diffuse interests based on the existence of an organization among the former. In both types of interests, there is a large number of people, but in the case of collective interests this number has an established organization to reach a common objective.

Vigoriti affirmed that both collective and diffuse interests referred to a wide range of advantageous situations of an individual nature, but within the former there was an organization, an expression of the generally united structure of the group, that ensured a unique handling of those interests and uniformity in the effects of the jurisdictional decision; while in the latter they were still considered atomistically, and therefore lack the instruments for an appraisal per unit.

The author wrote:

Both formulas refer to processes of adding individual interests and indicate two different stages of homogeneous phenomena in the substance. On a simply diffuse level, the mechanisms for coordinating wills are missing; the links that could give a set of equal interests a unitary nature have not been established. On the other hand, on a collective level, there is an organization in the sense that there are instruments of direction and control, and the super-individual dimension of the interests acquire their precise legal relevance.¹

Although Professor Humberto Teodoro Junior has widely covered Brazilian law, allow me to briefly refer to how these types of interests are understood and regulated within said law in an attempt to frame the comparisons of the countries whose national reports I received. In the Brazilian doctrine, as in the Italian one, there is also a distinction between collective interests and diffuse interests. As Ada Pellegrini Grinover points out, common interests are considered collective to a group of people only when there is a legal link between the members, as with commercial societies, a condominium, a family, a union, etc. Diffuse interests, however, are those that are not based on a legal link. They are based on elements of fact, which are often generic and contingent, accidental and mutable, like living in the same area, using the same product, living in certain socioeconomic circumstances, etc.²

The Brazilian Consumer Defense Code (Federal Law no. 8, 078 as of September 11, 1990) defines these two types of interests. According to Article 81, diffuse interests are "transindividual, of indivisible nature, held by unidentifiable persons linked by factual circumstances" (Section I). On the other hand, collective interests are "transindividual, of indivisible nature, held by a group, category or class of persons linked together or to the opposing party by a basic juridical relationship" (Section II).

As Barbosa Moreira points out, there are two common characteristics in both types of interests: their transindividuality and their indivisible nature. According to Barbosa Moreira, these two characteristics mean "that the interested parties continually find themselves in a form of community defined by the fact that the satisfaction of one necessarily means the satisfaction of all, and that injury to one constitutes, ipso facto, injury to the entire community".³ They also presuppose that the solution to the problems in which these types of interests manifest themselves must be the same for all the people that make up the community.

In both cases, the interests correspond to a community. The difference consists in that diffuse interests belong to a group of unidentifiable persons people, among which there is no basic juridical relationship, whereas in collective interests the community is, in fact, determined or determinable, to the degree in which said individuals form a group, a category, or a class. In addition, there is a basic juridical relationship, either among these people or between them and a third party. Brabosa Moreira gives the following examples: "A diffuse interest is, for example, one held by the inhabitants of a certain region interested in preserving the purity of their rivers, indispensable for their personal and domestic use; a collective interest, on the other hand, would be the interest of the students of a university in the regularity of their classes".⁴

In the face of these transindividual and indivisible interests, Article 81 of the Brazilian Consumer Defense Code itself defines individual homogenous interests as those that, though individual in nature, result from a "common origin" (Section III). These individual interests are handled collectively in virtue of their common origin and may be legally claimed through a collective action to obtain redress for damages suffered individually by consumers.⁵ In this case, each member of the group has an individual interest, divisible by nature, to the degree that each one can present their own claim.⁶

Spanish doctrine and legislation also distinguishes between collective interests and diffuse interests similar to those of Brazil. Lorena Bachmaier Winter maintains that diffuse interests are "those that affect a broad and unidentifiable group of persons, without usually being legally connected. For example, in cases related to misleading advertising or in proceedings demanding the labeling of certain products".

On the other hand, collective interests occur:

when a group finds itself in the same legal situation or when a number of people find themselves affected by the same fact and the members of the group or those affected are determined or can be easily determined, for example: a group of parents of a school’s alumni, or a group of clients that signed up for a certain bank’s mortgage plan in a specific year.⁷

In this definition, both collective interests and homogeneous individual interests seem to be included. As Lorena Bachmaier Winter believes:

I will not pause here to specify the elements that allow one to distinguish between a super-individual interest and a variety of homogeneous individual interests. Although this is an influential matter —and relevantly so— on the topic of legitimization, the LEC has preferred not to differentiate between both types of interests when configuring the procedural specialties for consumer and user protection.⁸

This is why in the Spanish Law of Civil Procedure, issued on January 7, 2000, and entered in force as of January 8, 2001, the distinction is based solely on the degree of determinability of the affected parties: if those affected are determined or easily determinable, then their interests are considered collective; if those affected are unidentifiable or whose determinability is difficult, their interests are considered diffuse.⁹

In Colombian law, collective interests and diffuse interests are included within the term collective interests as opposed to group interests, which correspond to the homogeneous individual interests in Brazilian law. Article 88 of Colombia’s 1991 Constitution establishes the bases for the protection of collective interests and group interests in its first and second paragraphs, respectively:

The law shall regulate popular actions for the protection of collective rights and interests related to the homeland, space, public safety and health, administrative morality, the environment, free economic competition, and others of a similar nature.

It shall also regulate the actions arising out of damage caused to a large number of individuals, without barring appropriate individual action.

Law 472 of 1998 regulates popular actions. Through this law, the collective interests highlighted in Article 4 are protected, as are group actions, which Article 3 defines under the following terms:

[They are] actions filed by a number or group of persons that meet the equal conditions regarding the same cause that resulted in individual damages for said persons. The equal conditions must also apply to all the elements that make up the responsibility.

Group action will be exercised exclusively to obtain recognition and compensation for the damages.¹⁰

In this way, in Colombian law, a division is made between collective interests —within which diffuse interests are included— and group interests, which correspond to what in Brazilian law are homogeneous individual interests. The distinction between collective interests and diffuse interests is somewhat relative because in both cases it is a matter of super-individual interests of an indivisible nature. As Gutiérrez de Cabeides points out, there is no "ontological difference" between these two types of interests, but rather, the distinction is based on "the extrinsic aspect of the degree of addition and delimitation to what they refer to".¹¹

The fundamental opposition is that which is manifest between collective interests in a diffuse sense or super-individual interests and homogeneous individual interests, as they are named in Brazilian law, or group interests in Colombian law. As Jose Carlos Barbosa Moreira has pointed out, collective interests in a diffuse sense, or super-individual interests, are essentially collective interests, whereas homogeneous individual interests are only accidentally collective interests.¹²

As Moreira himself points out, when it is a matter of essentially collective interests, only the same result is conceivable for all interested parties, and the process is necessarily subject to a direction characterized by the state of its units; whereas with accidentally collective interests, once the principle of unequal results for the different participants is accepted, the direction of the state of its units does not derive in any way from an intrinsic necessity.¹³

In Mexican law, group actions are regulated for protecting consumer rights. Through these actions, the Federal Consumer Protection Office can institute legal proceedings for the competent courts to declare, in their ruling, that one or various suppliers have acted in such a way that has caused damages and lost profits to consumers and sentence said providers to provide the corresponding redress. In an ancillary claim, consumers will prove their status as the affected party and establish the total amount of the compensation for damages to which they feel entitled (Article 26, Section I, of the Federal Law for Consumer Protection).

The Federal Consumer Protection Office can also institute legal proceedings before the competent courts to issue a court order to prevent, suspend, or modify the conduct of providers who have caused, or could cause, damages or loss of profits to consumers. This second type of action is preventive in nature (Article 26, Section II, of the Federal Law for Consumer Protection).¹⁴

Lastly, in Mexican law, collective actions are not regulated in a general way, although certain specific ones are foreseen, such as those corresponding to the core groups in ejidal or communal property seeking an amparo proceeding to protect their collective agrarian rights against official government action (Articles 212 and 213 of the Amparo Law); or those granted to labor unions and employers to define collective conflicts of an economic nature and to modify, implement, suspend, or terminate labor conditions (Articles 900 and 903 of the Federal Labor Law).

In Guatemala’s General Code of Procedure, certain actions are set forth for protecting diffuse interests, such as the environment, cultural and historical values, as well as interests "that belong to an unidentifiable group of persons" (Article 63.1). Group actions are also set forth for situations in which "there are factual or legal matters that are common to the persons belonging to the lis consortium" (Article 63.2).¹⁵

In the General Code of Procedure that is currently under analysis in Costa Rica, group interests are set forth.¹⁶

Popular action is commonly understood as being that which any citizen can exercise the interest of a community of persons or of the general public.¹⁷ The regulation of these types of actions, however, has not been the same in the region.

In Mexico, the Constitution of 1917 anticipated the popular action to denounce church property so that the Office of the Public Prosecutor could initiate the legal process necessary to nationalize said property (Article 27, Section II). It also allowed so-called popular action to denounce before the Chamber of Deputies common or official offenses of high officials (Article 111, paragraph 4). However, in both cases, what the Constitution of 1917 sets forth was not, strictly speaking, a true popular action, for it did not authorize citizens to take action before the courts in the name of the community. Rather, it merely conferred citizens the power to denounce the events for the purpose of having a State body take the corresponding action. Both constitutional precepts have been modified, for they no longer set forth this right.

In a similar way, the Guatemalan Health Code confers action, which it calls public, to "denounce before the competent authorities of the Health Ministry acts, which could constitute violations against health, stipulated in this code, its regulations, other health laws, norms and applicable provisions" (Article 236).¹⁸

However, the Guatemalan Code of Civil Procedure and Mercantile Procedures does provide for popular action to claim before a court against a construction that causes public damage (Article 263).¹⁹ The Nicaraguan Civil Code has a similar provision (Article 1826).²⁰ In Guatemala, popular action is also granted to contest the unconstitutionality of laws, regulations and provisions of a general nature. Anyone can exercise this action without the need of establishing a legal interest, so long as he is aided by three lawyers. The final judgment issued by the Constitutional Court, in which the contested law or general provision is found to be unconstitutional, has a general effect, annulling said law.²¹

1. Popular actions

The country in which popular actions have developed in a broader and more systematic way is, without a doubt, Colombia. There, popular actions are the means through which collective interests in a diffuse sense or super-individual interests are protected. That is how they are defined in Article 2 of Law 472 of 1998:

Popular Actions are the procedural means for protecting collective interests and rights.

Popular Actions are employed to avoid contingent damage and cease the danger or threat upon collective rights or interests, or to restore things to their previous condition.

According to the transcribed legal precept, popular actions have the following objectives: a) to avoid contingent damage; b) to cease the danger or threat upon collective rights or interests, and c) to restore things to their previous condition. The first aim is of a preventive nature, the second aims at the cessation of acts that endanger collective interests, and the third aims to restore the infringed collective right.

Which are the collective interests and rights protected through popular actions? Article 4 of Law 472 of 1998 lists many such rights and interests, of which we will highlight the following: a) the right to the environment; b) administrative morality; c) the enjoyment of public space and the use and defense of public property; d) the defense of public assets; e) the defense of the nation’s cultural heritage; f) public health and safety; g) free trade; h) access to efficient and prompt public services; i) the prohibition of manufacturing, importing, owning or using chemical, biological or nuclear weapons, as well as introducing nuclear or toxic waste into the country; j) the right to security and the prevention of technically foreseeable disasters; k) proper urban development; l) the rights of consumers and users.²²

Popular action had been originally established in Article 1005 of the Colombian Civil Code, which remains in force and states:

The municipality and any of its inhabitants shall have the same rights to use its roads, squares or other public places, and to pass along or through them in safety, as those enjoyed by the owners of states, properties or private buildings.

And always when as a consequence of an action of the people it should be necessary to demolish or repair a construction or to compensate for any injury suffered, the actor shall be recompensed, at the cost of the defendant, by a sum of not less than a tenth, nor more than a third part of what the demolition or repair or compensation for the injury cost; this is without prejudice to the fact that, if pecuniary punishment of the infraction or negligence is imposed, one half of such payment shall be made to the actor.

The Civil Code itself grants popular action in all cases of contingent damage, which, as a result of any imprudent act or negligence, threatens unidentifiable persons (Article 2359). Similarly, Law 9 of 1989 concedes popular action for the defense of public space and the environment (Article 8). Decree 2303 of 1989 confers popular action to defend in court the rural environment and renewable natural resources of public domain (Article 118).²³

In regards to the legitimacy of exercising public actions, Article 12 of Law 472 of 1998 grants it to all people, an individual or legal entity, which is enough to consider this legitimacy granted with the broadest possible scope. However, this precept adds specific categories of people, of which we will highlight the following: a) non governmental institutions, grassroots or civic organizations or those of a similar nature; b) public bodies that carry out the work of control or oversight, such as superintendents’ offices, as long as the threat or violation of the collective interests did originate through their actions or omissions; c) the nation’s Attorney General, the people’s counsel, as well as district and municipal representatives, in that which corresponds to their official jurisdiction; and d) mayors and other public officials who, because of their functions, must promote the protection and defense of these rights and interests.²⁴

It is clear that for the punishment in these proceedings involving collective interests to be effective, preventive measures that ensure or anticipate said efficiency preventively need to be pronounced while processing the procedure. In this way, Article 25 of Law 472 of 1998 authorizes the judge to issue, ex officio or ex parte, the steps deemed necessary to prevent imminent damage or to stop any damage that may have been caused.

Specifically, the same precept authorizes the judge to decree the following measures: a) to order the immediate cessation of the activities that could originate the damage, that have already caused it, or that could continue to cause it; b) to order that the necessary actions be carried out when the potentially harmful or damaging behavior is the result of an omission on behalf of the defendant; c) to obligate the defendant to post a guaranty to ensure compliance with any of the above mentioned measures; d) to order, at the expense of the Fund for the Defense of Collective Rights and Interests, the studies needed to establish the nature of the damage and the urgent measures necessary to mitigate it.²⁵

The judgment of appraisal issued as a result of a popular action could contain an order to do or not to do, as well as the punishment to pay for damages when damage has been inflicted upon a collective interest. Said payment must be made to the non-guilty public body responsible for the collective right. The judgment could also sentence carrying out the necessary conducts to restore things to their previous state before the damage was caused to the collective or right, whenever physically possible.

The order to do or not to do must accurately define the necessary actions to be carried out in order to protect the threatened or violated collective right or interest and to prevent the actions or negligence that brought about the popular action from occurring again. It must also set the amount for the compensation for the popular figure.

The punishment to pay for damages must be paid in genere and settled according to that which is established in Article 307 of the Code of Civil Procedure, as all orders and other punishments must be carried out. Once the proceeding is concluded, the corresponding sentence will be added to the corresponding final ruling, which must include the additional compensation for the popular figure.

In the case of damage to natural resources, the judge must procure the restoration of the affected area, assigning for this purpose one part of the compensation.

In the sentence, the judge must establish a prudent period of time, depending on the scope of his decision, in which compliance to said ruling must begin. In the case of non-compliance, the judge will order the execution of the sentence. During said period of time, the judge will retain the power to carry out the necessary measures to execute the sentence, and can order the creation of a committee to verify the fulfillment of the sentence. In addition to the judge, this committee will be composed of the interested parties, the public body in charge of protecting the collective interest or right, the Public Prosecutor’s Office, and a non-governmental organization whose activities are related to the case.

The judge must also inform the different administrative bodies and authorities of the sentence so that they can contribute to the fulfillment of the ruling, within the scope of their jurisdictions.²⁶

It should be pointed out that the sentence is open to appeal in terms of the suspensive effect. Once the remedy of appeal has been exhausted or has not been filed in due time, the sentence will have the authority of res judicata, which has the effects of erga omnes.²⁷

2. Group actions

As pointed out earlier, group actions are regulated along with popular actions. By means of group actions, a group of people that have suffered the same types of damages by the same cause can demand reparation of their individual interests so that the damage done to each one is acknowledged and the corresponding compensation is paid (Article 3 of Law 472 of 1998). We are referring to actions for the protection of homogeneous individual interests, as they are called in Brazil.

In general terms, group actions are the means through which it is possible to "protect private interests of identified sectors of the population", as pointed out by the Constitutional Court of Colombia.²⁸ They can even be used to defend collective rights (like those of consumers), when a number of people feel the individual damages resulting from a violation of those rights.²⁹

The requirements for the admissibility of group actions, according to the jurisprudence of the Colombian State Council, are the following:

a) That the affected group be made up of at least twenty people, which must be acknowledged in the complaint (Article 46 of Law 472 of 1998).

b) That each of those persons, whether an individual or a legal entity, belong to a group and has suffered individual damage, which does not necessarily have to affect collective rights (Article 48).

c) That the group of persons share the same conditions in terms of the origin of the damage, understood as a common situation in which these people have been placed, which allows them to be identified as a group before the damage that resulted in damage to all of them took place.

d) That the same conditions also exist in terms of the elements that outline the responsibility (Articles 3 and 46).

e) That the action be carried out for the exclusive aim of having the damage acknowledged and compensation paid.

f) That at the moment of filing the complaint, no more than two years have elapsed as of the event that caused the damage or since the cessation of the "damaging action".

g) That the group action be carried out by a lawyer.³⁰

The legitimization to employ group actions logically corresponds to the individuals or legal entities that suffered the individual damage (Article 47). However, the people’s counsel and the municipal and district representatives are also authorized to exercise group actions in the name of anyone who requests it or finds themselves without protection or defense. In this case, the defense and the representatives will be party to the process along with the aggrieved party.

In a group action, the representative, who represents the other people that were individually affected by the illicit acts, without having each of the interested parties separately exercise their own action, or grant powers of representation.³¹

In the court order that admits the complaint, the judge will order a summons for the accused, whom will be granted a period of ten days to respond. The members of the group will be informed through the mass media or any other efficient mechanism.

How is the group formed? When the complaint originates in the damage done to a number of people due to a single action or claim of negligence, or various acts or claims of negligence, derived from the violation of collective rights or interests, those who suffered damage can become party to the process, before the admission of evidence, by presenting a document that states their name, the damage caused, its origin, and their willingness to adhere to the final decision and to belong to the group of individuals that filed the complaint as a single unit.

The people that have not appeared during the proceedings can take part in the ruling, within twenty days of its publication, providing the above information. They cannot, however, request extraordinary or exceptional damages to obtain a larger compensation nor can they benefit from the order to pay the costs of the proceedings. The admission of new members into the group after the sentence has been given does not increase the amount of compensation established therein.

The individual actions related to the same facts can adhere themselves to the group action if the interested party so requests. In this case, the individual representative becomes a part of the group, completes the processing of the individual action, and submits to the results of the group action.

Within five days following the expiry of the summons, any member of a same group can petition to be excluded from the group, and therefore not be associated with the settlement or resulting sentence (Article 56). Those who did not participate in the process can also request their exclusion from the group, by proving, within five days after the sentence has been issued, that their interests were not properly represented by the group representative or that their were serious errors in notification.

Those excluded from the group can attempt an individual action to receive compensation for damages.³²

The judgment of appraisal given at the end of the process must order the payment of a collective compensation, containing the sum considered for individual compensations, and stipulating the requirements that those absent from the process must meet in order to claim their corresponding compensation (Article 61).

In the sentence, the judge must order that an extract of said sentence be published in a national newspaper, within a month after it has received final and conclusive judgment, instructing all interested parties who were equally damaged by the same facts and that were not present in the process, to present themselves before the court, within twenty days of the publication, to claim their compensation.

The amount of the compensation will be given to the Collective Rights and Interests Defense Fund, ten days after the final and conclusive judgment, which will be administered by the people’s counsel. The total amount will cover payment for both individual compensations of those who were part of the process as members of the group, according to the percentages agreed upon during the proceedings, as well as the corresponding compensations to requests of the interested parties that present their claims on time, even though they did not participate in the process, having met all the requirements established by the judge in the sentence.³³

The sentences pronounced as a result of group actions can be contested through a writ of review or cessation. The authority of a final and conclusive judgment becomes effective for all those who were party to the process and with those who, belonging to the interested party, did not make known their express desire to be excluded from said group and from the results of the proceeding in a timely manner.³⁴

As mentioned earlier, Article 11 of the Law of Civil Procedure of 2000 recognizes the legitimization of legally constituted consumer and user associations to defend the rights and interests of their associates and association members in court, as well as the interests of consumers and users in general.

The complete text of this article is as follows:

Article 11. The Legitimization for the Defense of Consumer and User Rights and Interests

1. Without prejudice towards the individual legitimization of the injured parties, legally constituted consumer and user associations are legitimized to defend in court the rights of the association, as well as the interests of consumers and users in general.

2. When the parties injured by a damaging fact are a group of consumers and users whose members are perfectly and easily determinable, the legitimization to aim at the protection of those collective interests corresponds to the consumer and user associations, the legally constituted bodies whose purpose is to defend and protect them, as well as the affected groups themselves.

3. When the injured parties are a number of unidentifiable, or hard to determine, consumers and users, the legitimization to sue in court for the defense of these diffuse interests corresponds exclusively to the consumer and user associations that, according to law, are representative.

As Lorena Bachmaier Winter points out, the distinction between collective interests and diffuse interests, as established in Article 11 of the Law of Civil Procedure for regulating the legitimization for the defense of consumer and user rights and interests, is based exclusively on the criteria of the degree of determinability of the affected persons: if the affected persons are perfectly determined or easily determinable, their interests are considered collective (paragraph 2); if the affected subjects are a number of people who are unidentifiable or hard to determine, the interests are considered diffuse (paragraph 3).³⁵

However, the author herself points out that legislators occasionally use the word collective in a wider sense, and collective action includes not only that which seeks to defend collective interests in a strict sense, but also those actions that affect a number of people, regardless of their degrees of determinability. Thus, the concept of collective action in a broad sense is only contrasted by that of individual action, because collective actions contain those actions that defend diffuse interests (for which it is not accurate or common to use the term "diffuse actions"), as well as those that defend collective interests in a strict sense.

Although in the Spanish Law of Civil Procedure a distinction is made between collective interests and diffuse interests, and both are protected through collective actions, like what occurs with popular actions in Colombia, it does not, however, establish a specific regulation for group interests or homogeneous individual interests.

When defining collective interests, Bachmaier Winter includes group interests. The author states:

Strictly speaking, we can speak of the existence of a collective interest or interests when a group finds itself in the same legal situation or when a number of people find themselves affected by the same fact and the members of the group or those affected are determined or easily determinable, for example: a group of parents of a school’s alumni, or a group of clients that signed up for a certain bank’s mortgage plan in a specific year.³⁶

The author recognizes that the Law of Civil Procedure does not distinguish when one is before a collective interest in the strict sense and when one is in the presence of a number of homogeneous individual interests.³⁷

As for legitimization, Article 11 differentiates the legitimized individuals according to the type of interest: a) for the defense of collective interests (the number of those affected determined or easily determinable), consumer and user associations, the affected parties, and the legally constituted entities for their defense, are legitimated, b) for the defense of diffuse interests (the number of those affected undeterminable or difficult to determine), only the consumer and user associations that, according to law, are considered to be representative, are legitimated.³⁸

Bachmeir Winter points out that one of the principal innovations of the Law of Civil Procedure is the provision that the collective rights and interests of consumers and users can be protected not only by consumer associations or specifically legitimized entities, but also by the affected parties. The novelty does not lie in the legitimization conferred upon the group, since generically, this legitimization was already found in Article 7.3 of the 1985 Organic Law of the Judicial Power. Instead, she states, the necessary conditions have now been established to allow the affected party itself to act as party to the process. Before the Civil Procedure Law of January 7, 2000, was enacted, the main obstacle that impeded the procedural participation of the groups was their inability to be party to said procedure.

By including Article 6.7 of the Law of Civil Procedure, which grants the group the capacity to be party to the process, as long as it is made up of a majority of the affected individuals, this problem is solved. Aside from this last requirement, the Law of Civil Procedure does not condition legitimization or the group’s participation with any other requirement.³⁹

Aside from the legitimization set forth in Article 11 of the Law of Civil Procedure, other rules concerning these issues are found in the General Law for the Defense of Consumers and Users (Article 20), the Law for the General Conditions of Hiring (Article 20), the General Publicity Law (Article 25), and in the Law on Disloyal Competition (Article 18).

As far as provisional remedies, the Law of Civil Procedure does not set forth a type of provisional remedy for processes in which collective actions are fought. The only peculiarity that is revealed on this issue is derived from the exercised action and the effectiveness of the protection sought. For example, in suspension proceedings or those prohibiting the occurrence of a purportedly disloyal act, the typical provisional remedy is that of issuing a court order to provisionally cease said activity or temporarily abstain from the reputedly illicit behavior.⁴⁰

As to the process, Bachmeir states that the Law of Civil Procedure has not created a special process for the protection of the collective interests of consumers and users, but it has established numerous specializations in the declarative processes. The motives contained in the Law of Civil Procedure points out the inclusion of precepts on summoning those who, though not among the claimants, may be directly interested in participating; on the accumulation of actions and processes, regarding the sentence, and matters of its execution. Taking into account the number and entity of the specializations set forth for the processes of collective protection of consumers and users, it could lead one to believe that the Law of Civil Procedure has designed a truly distinctive process. However, legislators do not label it as such, and for processing it remits to one of the two declarative processes regulated by the new Law of Civil Procedure: ordinary proceedings or oral proceedings, depending on the amount demanded in the complaint.⁴¹

In order to determine whether the consumers and users affected by an injurious fact are determined or impossible to determine, the Law of Civil Procedure allows the future claimant to request that preliminary proceedings be carried out to effect that subjective identification made by those affected. In both cases, a wide publicity system of the complaint is foreseen to ease participation in the collective process of each one of those affected individually (Articles 15 and 13 of the Law of Civil Procedure). But, regardless of whether they have participated or not, one can apparently deduce from Article 222 of the Law of Civil Procedure that the effectiveness of the sentence regarding collective and diffuse interests is extended ultra partes, even for those who did not litigate.⁴²

As to the consolidation of the groups, the Law of Civil Procedure does not establish the way to constitute the class, category or group of those affected. It does not provide the criteria used to consider specific consumers and users included or excluded. The only criteria appear indirectly when regulating legitimization in Article 11 of the Law of Civil Procedure, in which "those injured by a damaging fact" are alluded to. The objective fact of having been affected by the same fact that has caused damage to the consumer or user automatically places that individual within the group, category, or class of those affected. The Law of Civil Procedure does not regulate a means for the affected consumer or user to request his exclusion from that group in order to avoid being affected by the contents and effects of a sentence.⁴³

Article 221 of the Law of Civil Procedure regulates the content of the sentences issued in processes filed by consumer associations, pursuing collective actions. If the collective action sought a punishment (monetary, to do or not to do, or giving something specific or generic), the judgment of appraisal must determine the consumers and users benefited by the punishment individually (collective interests). When individual determination is not possible, the sentence will establish the information, characteristics and requirements necessary to demand payment, or, if the case, instigate its execution or intervene in said sentence if this demand is put forth by the claimant association (diffuse interests). If, as implied by the punishment or as the consequence of a principal or sole result, a certain activity or behavior is deemed illicit or not in accordance with the law, the sentence will determine whether, according to the legislation for the protection of consumers and users, the ruling should have unlimited procedural effects on those who have been party to the corresponding process.

Bachmeir Winter observes that the Law of Civil Procedure does not provide a special rule for the contents of a sentence that ends a process brought about by a group of consumers and users in defense of those damaged by a single injurious fact. Also, in principal, that which is set forth in Article 221 of the Law of Civil Procedure, as the heading for this precept expresses, is only applicable to the sentences issued in processes filed by consumer associations.⁴⁴

According to the author, the need to individually determine the consumers and users that will be affected by the sentence, exists in all ancillary claims in which a group action is carried out, regardless of who pursues it. Because of this, there seems to be no reason to limit sentences issued in processes filed by consumer and user associations, as contained in Article 221 of the Law of Civil Procedure. In the author’s opinion, it might be convenient to leave behind the literal tone of Article 221 of the Law of Civil Procedure, in such a way that it does not limit its use to processes filed by consumer and user associations.⁴⁵

The extension of the authority of res judicata in sentences pronounced in the processes filed by collective actions, is established in Article 122, paragraph 3 of the Law of Civil Procedure that states: "The res judicata will affect the parties of the ruling process, and their heirs, and their beneficiaries, as well as the non-litigating individuals that have the rights that ground the legitimization of the parties in accordance to that which is set forth in Article 11 of this Law".

Bachmeir Winter points out that this precept does not determine whether the sentence was issued in a process filed for the defense of collective interests or diffuse interests. The author believes that in processes filed by consumer associations, non-litigating individuals are understood as those who, although within the category or class of affected consumers and users, have not made use of the possibility to appear in court as an individual and participate in the collective process.⁴⁶

On the other hand, in the processes filed by the affected party, in principal, the litigating party is the group, and not only the one that is made up of a majority of those affected, but the one comprised of all the affected. In this case, the author asks, who is the non-litigating individual? One could consider the non-litigating individual as the one who manifests his express desire to remain outside of the group, to exercise the corresponding actions individually. However, the author speculates that Article 222 of the Law of Civil Procedure does not refer to the member that has expressly excluded himself from the group when alluding to the non-litigating person. Rather, she believes, in regards to collective actions, the reach of the res judicata must be understood as extending to all the individuals that form the group, even though they may not have appeared before the court individually.⁴⁷

In Mexico, Article 26 of the Federal Consumer Protection Law of 1992, regulates group actions, which have the same meaning as in Colombia, differing only in that Mexican law grants legitimization for pursuing these types of actions only to the Federal Consumer Protection Agency, and not the groups of directly affected consumers.

Article 26 establishes that, through group actions, Federal Consumer Protection Agency can demand the competent courts to declare, through a sentence, that one or various person have acted in a way that has caused damages and lost profits to the consumers and make the accused provide the corresponding redress. In one ancillary claim, the interested consumers will establish their status as the injured party as well as the amount of damages for which they are entitled to receive compensation (Section I).

For the federal agency to act in this case on behalf of the consumers, the law states that it must first have an order conferred by them. This is not legally required for the filing and development of the initial proceedings during which the providers are pronounced as having caused damages and lost profits to a group of consumers and is sentenced to redress them. The requirement of the order, as stated in the final part of Section I, will only be fulfilled when the federal agency presents the case before the court to establish nature of injury of certain consumers, who can also present themselves before the court, in which case the order would not be necessary.

The fundamental assumption from which these group actions are derived is that, having acquired a good or contracted a service, a considerable number of consumers suffer the same damage or lost profits caused by one or more providers.

The group actions set forth in Section I have a two-fold nature: they are declarative because they intend that the judge declare that one or more providers, through the sale of goods or services, have caused damage or lost profits to the consumers in whose name the group action is being exercised; and they are actions seeking compensatory damages and loss of future earnings because through them the federal agency asks the judge to order the providers responsible to compensate the interested party who have established their status as affected consumers in an ancillary claim, as well as setting the amount of said compensation.

In the initial proceedings, it is enough for the federal agency to show that the provider being sued caused some consumers damages and lost profits in order to ask the judge to pronounce a declarative sentence and a judgment. All the consumers who have been affected by the same damages and lost profits, having established their status as the injured party and the amount of damages suffered, can appear before the court for the ancillary proceeding for the settlement and execution of the sentence.

Moreover, Section II establishes a preventive measure for it empowers the Federal Consumer Protection Agency to demand a order from the corresponding courts to hinder, suspend, or modify behavior that causes or could possible cause damages and lost profits to consumers. To request this preventive measure, the previous order is not required, for the simple reason that these rulings are not aimed at preventing, hindering, the behavior that causes or could cause damage and lost profits to consumers, who for the same reason, cannot be determined beforehand.

According to what is stated in Article 26 of the Federal Consumer Protection Law, the exercise of group actions by the Federal Consumer Protection Agency is discretionary. Therefore, the law does not confer it the right to demand that the federal office exercise group actions.⁴⁸

Although it is true that Article 20 of the Federal Consumer Protection Law establishes that the Federal Consumer Protection Agency is a decentralized social service body, with legal capacity and its own assets, and should therefore exercise its powers with autonomy, it is also true that since 1977, the federal agency has been under the control of the then Ministry of Commerce (now the Ministry of Economy), which contradicts its possible autonomy and makes it practically a branch of said ministry.

This situation explains why, in the more than nine years that the Federal Consumer Protection Law has been in force, the Federal Consumer Protection Agency has not exercised a single group action.

If it is desired that this type of group actions can be exercised, it would be necessary to change the federal agency into a truly autonomous agency. But it is also indispensable to recognize the legitimization of not only the groups of directly affected consumers, but also the associations that are legally constituted for their defense. In any case, it would be necessary to strictly regulate the integration or exclusion of consumer groups, the applicable procedure, provisional remedies, the sentence and the scope of the res judicata, among other issues.

The need for procedural law to offer more adequate solutions to social conflicts is ever more evident. The actions for the protection of the individual rights have always played, until now, an essential role in resolving private disputes, but they cannot give an adequate response to disputes in which collective interests are expressed.

On this subject, Brazil has provided a clear distinction between collective or super-individual interests in a broad sense and homogeneous individual interests. Collective interests in a broad sense are transindividual and indivisible and require a unit discipline and the same solutions. Individual interests belong to determined people, and are therefore divisible by nature, but are dealt with collectively in light of their common origin.

Collective interests in a broad sense, or super-individual interests, can be collective in a strict sense or diffuse. The latter belong to a community of undetermined people among which there is no basic juridical relationship, while in collective interests the community of persons is determined or determinable, in as much as said persons establish a group, a category or a class, and in which, additionally, there is a basic juridical relationship among these people, or among these and a third party.

In Spain, with the Law of Civil Procedure of 2000, the distinction between collective interests and diffuse interests lies only in the degree of determinability of the affected individuals: if those affected are determined or easily determinable, their interests are considered collective; if those affected are undeterminable or difficult to be determined, then their interests are considered diffuse.

In Colombian law, collective interests and diffuse interests are included within collective interests, and a distinction is made between these and group interests, which correspond to the homogeneous individual interests in Brazilian law. In Mexican law, only group actions are considered. There are projects to regulate this type of actions in both Costa Rica and Guatemala.

Recent experiences in Colombia and Spain, in which legitimization has been granted to these actions in very broad terms, fully confirm the prediction made in 1977 by Mauro Capelletti, who though gone is always present, when he said that:

Outlined here is that which comparative research seems to indicate is the most efficient type of solutions to our problem: compound solutions, articulated, flexible, the only ones capable of giving an adequate response to the complex problem of the protection of the new, emerging and vital collective interests.⁴⁹

Notes
* General paper presented during the 7th Seminario Internazionale su Formazione e Caratteri del Sistema Giuridico Latinoamericano e Problemi del Processo Civile [International Seminar on Formation and Characteristics of the Latin American Legal System and Problems of Civil Proceedings] organized by the Centro Studi Giuridici Latinoamericani [Latin American Legal Studies Center] of the Consiglio Nazionale delle Ricerche [National Research Council], the "Tor Vergata" University of Rome, the Istituto Italo-Latinoamericano [Italian-Latin American Institute] and the Instituto Iberoamericano de Derecho Procesal [Ibero-American Institute of Procedural Law], in Rome, from May 16 to 18, 2002. Translated by Camilo Montenegro and Carmen Valderrama Ramos.
**Researcher at the Legal Research Institute and Professor at the National Autonomous University of Mexico (UNAM).
1 Vigoriti, Vincenzo, Interessi collettivi e processo. La legitimazione ad agire, Milan, Giuffrè, 1979, pp. 42-44.
2 Pellegrini Grinover, Ada, "A problemática dos interesses difusos", A tutela dos interesses difusos, São Paulo, 1984, pp. 30 and 31.
3 Barbosa Moreira, José Carlos, "La iniciativa en la defensa judicial de los intereses difusos y colectivos, un aspecto de la experiencia brasileña", Revista Uruguaya de Derecho Procesal, no. 2, 1992, p. 235.
4 Idem.
5 Cfr. Pellegrini Grinover, Ada, "O novo processo do consumidor", O processo em evolução, Rio de Janeiro, 1996, p. 140.
6 Cfr. id., "Significato sociale, politico e guiridico della tutela degli interessi diffusi", Rivista di Diritto Processuale, no. 1, January-February 1999, p. 21.
7 Bachmaier Winter, Lorena, Informe de España sobre "Acciones populares y acciones para la tutela de los intereses colectivos", 2001, unpublished, p. 5.
8 Ibidem, p. 6.
9 Idem.
10 Parra Quijano, Jairo, Colombian report on "Acciones populares y acciones para la tutela de los intereses colectivos", PP. 2 and 11.
11 Cfr. Bachmaier Winter, Lorena, op. cit., note 7, p. 5.
12 Barbosa Moreira, José Carlos, "Tutela jurisdiccional dos interesses coletivos ou difusos", Temas de direito processual (Terceira Série), São Paulo, Saraiva, 1984, p. 196.
13 Ibidem, pp. 196 and 197. This same distinction between collective interests in a broad sense and group or homogeneous individual interests can be found in European law. In this sense, Catherine Kessedjian holds that there are two types of lawsuits consumer associations and other organizations that represent collective interests can present: those that tend to "represent an actionable category within individual suits, such as class actions in US law, or like the actions en represéntation conjoint in French law"; but they can also be "destined to promote the general interest, which is the case of what is now called actions en cessation". Cfr. "L’action en justice des associations de consommateurs et d’autres organisations représentatives d’intérêts collectifs en Europe", Rivista di Diritto Internazionale Privato e Processuale, no. 2, April-June 1997, pp. 282 and 283.
14 Ovalle Favela, José, Comentarios a la Ley Federal de Protección al Consumidor, Mexico, McGraw-Hill, 1995, p. 68.
15 Aguirre Godoy, Mario, Informe nacional sobre el tema "Acciones populares y acciones para la tutela de los intereses colectivos", 2001, unpublished, pp. 7 and 8.
16 Cfr. Artavia Barrantes, Sergio, La protección de los intereses de grupo en el proyecto del Código Procesal General de Costa Rica, 2001, unpublished, pp. 1 and 2.
17 Guillermo Cabanellas defined popular action in the following terms: "This name was given, in the procedural sense, to what any citizen or group of citizens could exercise, whether to their own benefit or in the common interest". Diccionario enciclopédico de derecho usual, Buenos Aires, Heliasta, 1979, vol. I, p. 85.
18 Aguirre Godoy, op. cit., note 15, pp. 3 and 4.
19 Ibidem, p. 5.
20 Guerrero Mayorga, Orlando, Informe nacional de Nicaragua sobre "Acciones populares y acciones para la tutela de los intereses colectivos", 2001, unpublished, p. 1.
21 Aguirre Godoy, op. cit., note 15, pp. 5 and 6.
22 Parra Quijano, op. cit., note 10, pp. 2, 3 and 9.
23 Ibidem, pp. 4 and 6.
24 Ibidem, pp. 6 and 7.
25 Ibidem, pp. 9 and 10.
26 Ibidem, pp. 18-20.
27 Ibidem, pp. 23 and 24.
28 Ibidem, p. 12.
29 Ibidem, p. 14.
30 Ibidem, pp. 12 and 13.
31 Ibidem, pp. 15 and 16.
32 Ibidem, pp. 16 and 17.
33 Ibidem, pp. 20 and 21.
34 Ibidem, p. 23.
35 Bachmaier Winter, op. cit., note 7, p. 6.
36 Ibidem, p. 5.
37 Ibidem, p. 6.
38 Ibidem, p. 8.
39 Ibidem, pp. 8 and 9.
40 Ibidem, p. 15.
41 Ibidem, p. 7.
42 Idem.
43 Ibidem, p. 15.
44 Ibidem, pp. 16 and 17.
45 Ibidem, p. 17.
46 Ibidem, p. 19.
47 Ibidem, pp. 19 and 20.
48 Ovalle Favela, op. cit., note 14, pp. 68 and 69.
49 Cappelletti, Mauro, "Formazioni sociali e interessi di gruppo davanti alla giustizia civile", Revista di Diritto Processuale, no. 3, July-September 1995, p. 383.