Collective Redress & Class Actions 2023 Comparisons

Class actions were introduced into Law No 19.496 of the Protection of Consumers’ Rights (the “Consumer Law”) in 2004, through Law No 19.955.  Since then, the procedure for these actions has undergone several amendments.

Specifically, the requirements for admissibility of class actions have been revised several times (Law No 20.543 and Law No 21.081). All these amendments are designed to expedite the processing of class actions. Now, the only prerequisites are that the action must be initiated by a party with legal standing and meet the requirements applicable to lawsuits as set out in the Code of Civil Procedure (Article 52(1) in conjunction with Article 51(1)(1) of the Consumer Law). 

Key reforms introduced to the Consumer Law by Law No 21.081 include:

• Compensation in class actions may now be extended to moral damages, but only where the physical or psychological well-being or dignity of consumers has been affected, which must be proven. For its assessment, the court may set a minimum compensation level, often necessitating a special expert opinion to be paid by the offender. A fast and expeditious registration system via the National Consumer Service (SERNAC) is established so that potentially affected consumers can access this compensation.
• Suppliers are obligated to provide requested documents, failing which they are assumed to concede to the opposing party’s claims (Article 51, final paragraph of the Consumer Law).
• Affected consumers are no longer permitted to participate in the trial but can appear to reserve their rights (Article 51(1)(3) of the Consumer Law).
• A new provisional measure halting disputed charges is introduced (Article 51(1)(10) of the Consumer Law).

Law No 20.945 explicitly allows class actions seeking damages for violations of Decree Law No 211 on the Defence of Competition, which must be brought before the Antitrust Court (Tribunal de Defensa de la Libre Competencia or TDLC) (Article 51(2) of the Consumer Law).

Previously, class actions were focused on the financial sector but have since expanded to virtually all markets, including those governed by special laws, sparking both doctrinal and jurisprudential debate.

Finally, it should be noted that the Chilean government recently presented to the Congress a new bill to reform the Consumer Law titled “SERNAC Protects You”. Among other things, the bill seeks to give SERNAC powers to impose fines on suppliers who violate the law (Reform No 16.271-03).

The inclusion of class actions in Chile in the 2004 reform of the Consumer Law was based on Rule 23 of the Federal Rules of Civil Procedure. 

Thus, Article 52 of the Consumer Law established a strict admissibility test for the purpose of verifying:

• the existence of a collective interest affected by an infringement of the Consumer Law;
• the need to use the collective procedure for the defence of consumers’ interests; and
• the adequate representation of the consumers’ interest by one of the parties with legal standing to act.

However, the admissibility test has been amended on several occasions to expedite the processing of class actions. This stage is now condensed to a formal examination of two criteria:

• the legal standing of the party filing the class action, as stipulated in the Consumer Law; 
• compliance with the formal requirements that must be verified before any action can move forward.

In addition, the Chilean legislature relied on Spain’s Law 26/1984, General for the Defence of Consumers and Users, as a model for delegating the representation of collective consumer interests to consumer associations. Article 20 of Law 26/1984 – now repealed – established that consumer associations were responsible for “representing their members and exercising the corresponding actions in defence of their members, the association or the general interests of consumers and users”. A similar provision exists in Chile, enabling consumer associations to act as legal representatives for the collective interest of consumers in court.

There is no applicable information in this jurisdiction.

The third paragraph of Title IV of the Consumer Law regulates the procedure for the defence of the collective or diffuse interests of consumers (collective action or class action) (Article 51 and subsequent articles of the Consumer Law).

Article 2 of the Consumer Law lists the legal acts that are subject to this law. In general terms, it applies whenever there is a business exchange between a consumer and a supplier.

Consumers are defined as natural or legal entities who acquire, use, or enjoy goods or services as end-users through any form of legal transaction. Suppliers, whether natural or legal entities and either public or private, are those who regularly engage in the production, manufacturing, import, construction, distribution, or sale of goods, or provision of services to consumers, in exchange for a price or fee.

Therefore, in general terms, the Consumer Law applies to all types of mass consumption industries. In addition, the Consumer Law contemplates certain rules directed at specific suppliers: financial product and service providers, parking service providers, continuous service providers, and airlines, among others.

Article 2 bis provides that the Consumer Law shall not apply to the activities of production, manufacture, import, construction, distribution and marketing of goods or provision of services regulated by special laws, with the exception of:

• matters not covered by these laws;
• matters relating to class actions, and the right to seek compensation through such procedure; and
• matters relating to the consumer’s right to seek individual redress for compensation, provided that there are no compensation procedures in such special laws.

Based on the exceptions contemplated in this rule, SERNAC and other parties with legal standing, have brought class actions against suppliers regulated by special laws. This has sparked extensive doctrinal and jurisprudential debates on the scope of the speciality principle.

Law No 21.398 incorporates into the Consumer Law a new Article 15 bis, which establishes that the provisions contained in Articles 2 bis (b), 58 and 58 bis of the Consumer Law “will be applicable with respect to the personal data of consumers, within the framework of consumer relations, unless the powers contained in said articles are within the scope of the legal powers of another body.” This means that class actions can be initiated against suppliers who violate rules on personal data processing.

Finally, the Consumer Law establishes that the rights of all consumers are those established by laws, regulations and other rules containing provisions relating to the protection of their rights (Article 3, final paragraph of the Consumer Law). Therefore, the infringement of these rights would also give rise to the filing of a class action.

The Consumer Law regulates the Procedure for the Defence of the Collective or Diffuse Interests of Consumers (Class Actions), in the third paragraph of Title IV (Article 51 and subsequent articles of the Consumer Law).

Article 50 of the Consumer Law establishes that actions may be brought either on an individual basis or for the benefit of the collective or diffuse interests of consumers.

“Individual interest actions” are solely for defending the rights of an individual consumer.

“Collective interest actions” are for defending the rights of a specific group of consumers linked to a supplier contractually.

Finally, “diffuse interest actions” are for defending the rights of an undefined group of affected consumers.

Class actions are heard by the ordinary courts of justice, in accordance with the general rules (Article 50 A(1) of the Consumer Law) – ie, the court with civil jurisdiction (Article 134 and subsequent articles of the Organic Code of Courts).

Exceptionally, class actions for damages for violations of Decree Law No 211 on the Defence of Competition must be brought before the TDLC (Article 51(2) of the Consumer Law).

As indicated in 1.1 History and Policy Drivers of the Legislative Regimeand 1.2 Basis for the Legislative Regime, Including Analogous International Laws, class actions must comply with the following admissibility requirements:

• the claim must have been filed by a party entitled to do so; and
• the claim must comply with the requirements set forth in Article 254 of the Code of Civil Procedure (Article 52(1) of the Consumer Law).

Article 254 of the Code of Civil Procedure states: “The complaint must contain: 1) the designation of the court before which it is filed; 2) the name, address and profession or trade of the plaintiff and of the persons representing him, and the nature of the representation, as well as a means of electronic notification of the sponsoring attorney and of the legal representative if not designated; 3) the name, address and profession or trade of the defendant; 4) a clear statement of the facts and legal grounds on which it is based; and 5) the precise and clear statement, recorded in the conclusion of the petitions that are submitted to the court’s decision”.

The procedure for class actions is the same throughout the country, being heard by the competent ordinary court.

The class action is filed before the competent ordinary court, which conducts an admissibility test (Article 52(1) of the Consumer Law) (Sections 1.1, 1.2 and 4.1).

Once the action has been deemed admissible, the defendant supplier has ten days to reply (Article 52(2) of the Consumer Law). In addition, the court will order the publication of a notice in the media so that consumers who may have been affected by the conduct in question may take part in the class action (Article 53 of the Consumer Law).

Once the claim has been answered, the parties are summoned to a conciliation hearing (Article 52(9) of the Consumer Law). If no agreement is reached, the court will issue a resolution with the substantial, pertinent, and disputed facts, and an evidentiary period of twenty days commences (Article 52(12) of the Consumer Law).

At the end of the evidentiary period, the court must issue its judgment, accepting or rejecting the class action. The judgment accepting the class action must comply with a series of requirements (Article 53(C) of the Consumer Law, in accordance with Article 170 of the Code of Civil Procedure).

An appeal may be filed against the final judgment, which is heard by the corresponding Court of Appeal (Article 53(C)(3) of the Consumer Law). An appeal may also be made to the Supreme Court against the judgment of the Court of Appeal.

Finally, it should be noted that the enforceable judgment declaring the liability of the defendant will have an erga omnes effect (Article 54(1) of the Consumer Law).

Class actions may only be initiated by a party entitled to do so, namely:

• SERNAC;
• a consumer association established at least six months prior to the filing of the class action, and acting with the approval of the board of directors; or
• a group of at least 50 consumers with the same interest in a claim (Article 51(1)(1) of the Consumer Law).

The enforceable judgment declaring the liability of the defendant(s) will have an erga omnes effect (Article 54(1) of the Consumer Law). However, an exception exists for those reserving their rights under Article 53, for whom the erga omnes effect does not apply.

The judgment will be made public, allowing others affected by the same issue to seek compensation or appropriate redress (Article 54(2) of the Consumer Law).

Interested parties have 90 calendar days from the last notice to exercise their rights before the same court that processed the trial (Article 54(C)(1) of the Consumer Law).

Within this 90-day period, interested parties may reserve their rights to pursue civil liability for both financial and moral damages in a separate trial. Importantly, the existence of the infringement, already established in the initial judgment, cannot be contested in this new trial. The judgment from the first case serves as conclusive evidence of both the infringement and the plaintiff’s entitlement to damages. Therefore, the focus of the new lawsuit is solely on determining the amount of such damages (Article 54(C)(2) of the Consumer Law).

Whoever exercises his rights under Article 54(C)(1) of the Consumer Law shall not be entitled to bring another action based on the same facts. Likewise, those who do not reserve their rights shall not be entitled to initiate another action based on the same facts (Article 54(C)(3) of the Consumer Law).

As such, there is an opt-out mechanism for joining an action.

Class actions are heard by the ordinary courts (Article 50(A) of the Consumer Law in connection with Article 76 of the Political Constitution of the Republic and Article 1 of the Organic Code of Courts). In particular, class actions are heard by the civil courts corresponding to the domicile of the defendant supplier (Article 134 of the Organic Code of Courts).

Plaintiffs who are parties to a class action may not subsequently file an individual action based on the same facts (Article 51(1)(5) of the Consumer Law).

Once the class action has been declared admissible, and the appeals filed against the resolution declaring it admissible have been dismissed, a notice must be published in the media. After such publication, no person may file another lawsuit against the defendant based on the same facts (Article 53(3) of the Consumer Law). In such case, the parties entitled to bring an action may only be joined as third-party interveners of the plaintiff.

Those class actions filed prior to the publication of the aforementioned notice, which have been filed against the same supplier and are based on the same facts, will be joined to the oldest lawsuit.

In this regard, SERNAC has stated that “with respect to the accumulation of proceedings, it is a good practice that, regardless of the ex officio actions that may be taken by the judges and the defendant’s own actions, those parties with legal standing other than the SERNAC that bring class actions for the same facts against the same supplier, should notify this agency in a timely manner and request, when appropriate, that it decree the accumulation of proceedings, to decree the joinder of proceedings, so that the controversy may be resolved through the issuance of a judgment, or through a single alternative mechanism, safeguarding the effectiveness in the protection of consumer rights, the speed of judicial proceedings and the strengthening of the class action system” (Exempt Resolution No 71 of 5 February 2021).

Finally, the SERNAC may not initiate a Collective Voluntary Procedure (Procedimiento Voluntario Colectivo or PVC) (paragraph four of Title IV of the Consumer Law) once class actions have been brought in respect of the same facts and while such actions are pending.

On the other hand, once a PVC has been initiated, no one may bring a class action with respect to the same facts while the proceeding is pending (Article 54(H)(4) of the Consumer Law).

The Consumer Law does not establish special rules on this matter.

See 3.1 Scope of Areas of Law to Which the Legislation Appliesand 4.2 Overview of Procedure.

There are no general procedural mechanisms to expedite processing times, with two exceptions: the preferential hearing of appeals and limitations on appeals in small claims cases.

Article 51 of the Consumer Law mandates a faster resolution for appeals filed in cases concerning the collective or diffuse interests of consumers, compared to those in ordinary proceedings.

Article 50(H) of the Consumer Law establishes that individual actions for an amount of less than UTM25 (UTM = Unidad Tributaria Mensual or Monthly Tax Unit) will be processed in single proceedings, and the decisions issued in such proceedings will not be subject to appeal.

There is no special provision in the Consumer Law.

The general rule provided for in Article 144 of the Code of Civil Procedure applies, according to which the losing party in a lawsuit will be ordered to pay the procedural and personal costs incurred.

See 1.1 History and Policy Drivers of the Legislative Regime, 1.3 Implementation, 4.1Mechanisms for Bringing Collective Redress/Class Actions, and 4.3Standing. 

First, violations of the Consumer Law are punishable by fines of up to UTM300, unless a different sanction has been established (Article 24(1) of the Consumer Law). For example, false or misleading advertising will incur a fine of up to UTM1,500 (Article 24(2) of the Consumer Law). Failure to comply with the obligations established with respect to products whose use is potentially dangerous, or the provision of high-risk services, is punishable by a fine of up to UTM2,250 (Article 45, final paragraph of the Consumer Law).

In cases where violations affect multiple consumers, the court may apply a fine for each consumer affected (Article 24(A)(2) of the Consumer Law and Article 53(C)(1)(b) of the Consumer Law), but it may not exceed 45,000 Annual Tax Units.

Second, class actions may request compensation for damages, including pecuniary damage, and may also extend to moral damages provided that the physical or psychological well-being or dignity of consumers has been affected (Article 51(2)(2) of the Consumer Law).

Finally, the Consumer Law provides, among others, the following remedies:

• the suspension of advertising broadcasts (Article 31(1) of the Consumer Law);
• the declaration of annulment of clauses that have been qualified as abusive (Articles 16 and 16(A) of the LPC); and
• in accordance with the provisions of Title V of Book II of the Code of Civil Procedure, in qualified cases and only once the lawsuit has been admitted for processing, the judge may order as a precautionary measure that the supplier provisionally cease the collection of charges of which the origin is being disputed in court (Article 51(1)(10) of the Consumer Law).

The PVC is an alternative dispute resolution mechanism for consumer disputes. The PVC is defined as a procedure that “aims to obtain an expeditious, complete and transparent solution in cases that may affect the collective or diffuse interest of consumers”, which is achieved through an agreement (Article 54(H) of the Consumer Law).

In class actions, the parties may reach an agreement to terminate the lawsuit at the conciliation stage. This stage must be decreed prior to the beginning of the evidentiary period. Here, the judge acts as mediator, striving for a full or partial resolution (Article 52(19) of the Consumer Law). In any case, the judge may call for conciliation as many times as he/she deems necessary (Article 53(B) of the Consumer Law).

Both agreements reached in the framework of a class action, or a PVC, must have subsequent judicial approval.

In the case of PVCs, it is established that the judge may reject the erga omnes effect if the agreement does not comply with the following minimum criteria: “1. The cessation of the conduct that could have affected the collective or diffuse interest of the consumers. 2. The calculation of the respective refunds, compensations, or indemnities for each of the affected consumers, when applicable. 3. A solution that is proportional to the damages caused, that extends to all the affected consumers and that is based on objective elements. 4. The way in which the terms of the agreement will be enforced and the procedure by which the supplier will make refunds, compensate, or indemnify the affected consumers. 5. The procedures through which compliance with the agreement will be enforced, at the expense of the supplier” (Article 54(Q)(2) of the Consumer Law in relation to Article 54(P)(2) of the Consumer Law).

In the case of class actions, it is stated that “[a]ny settlement, conciliation or transaction must be submitted to the judge for approval”. It goes on to state that “[i]n order to approve it, the judge must verify its conformity with the rules for the protection of consumer rights. The approval shall be without prejudice to the possible application of fines in case of violations of this law. However, the court shall consider the reparation of the damages caused by the supplier to reduce the amount of the fine up to 50%” (Article 53(B)(4) of the Consumer Law).

Further, in the case of class actions: (i) while there is no stipulated minimum content for these agreements, they must adhere to consumer protection rules; and (ii) even if an agreement is reached, the supplier may still face penalties in the proceedings.

The judgements serve both punitive and civil functions: they declare how the collective or diffuse interests of consumers have been affected and establish the liability of suppliers, and also declare the appropriate compensation or reparations (Article 53(C)(1)(a), (b) and (c) of the Consumer Law).

If the judge determines that the supplier has the necessary information to identify the consumers, he/she may order that the indemnities, repairs, or refunds be made without the need for the interested consumers to appear in the process.

Additionally, the judge has the authority to impose upon the supplier the responsibility of appointing a third party to disburse the appropriate amounts.

Each year, SERNAC publishes an Annual Audit Planoutlining its focus areas for the upcoming year. The key focus areas of the 2023 plan are outlined below.

Regional Approach and Territorial Deployment

SERNAC aims to tailor its enforcement activities to the specific needs of consumers based on their location, their environment and the functioning of the different markets in their territory. This involves extending enforcement beyond regional capitals, requiring a significant institutional effort and transfer of powers to effectively deploy enforcement activities nationwide.

Gender Focus

SERNAC is committed to tackling discriminatory conduct that perpetuates gender stereotypes, sexism, and violence across various platforms like media, advertising, and social networks.

Multitask Integrated Enforcement

SERNAC promotes collaborative work with other public services to create synergies that enhance consumer protection. Partners include the Ministry of Transport and the Undersecretary of Telecommunications.

Oversight of Practices Affecting Vulnerable Groups

The oversight of commercial practices affecting vulnerable groups is a focus for SERNAC. Through this approach, SERNAC aims to address and reduce imbalances in consumer relations that particularly impact vulnerable groups, including the elderly, individuals with limited mobility or physical disabilities, and children and adolescents.

Regarding the framework for the exercise of collective actions, the most relevant change to be introduced by Reform No 16.271-03 is the elimination of the need to prove a contractual link between the group of affected consumers and the supplier in order to claim damages through this type of procedure.

Currently, Article 50 of the Consumer Law requires a contractual link between the consumer group represented in a collective action and the supplier against whom the action is brought. This has led to the dismissal of lawsuits aimed at protecting the collective interests of consumers against companies that have violated various regulations, particularly those related to fair competition under Decree Law No 211. Courts have dismissed these cases due to the absence of a direct contractual link between the offending supplier and the affected consumers. As a result, companies involved in illicit activities like collusion, but who are upstream in the production/distribution chain and lack a direct relationship with consumers, have been exonerated from paying damages in class actions.

The government’s proposed amendment aims to rectify this issue by eliminating the need to prove a contractual link between the consumer group and the offending supplier, thereby broadening the scope for collective actions.

Given that Chile is not a member of the European Union, Brexit has had no impact on the issues outlined in other sections.

One of the proposed amendments under Reform No 16.271-03 is the incorporation of a new Article 28(C), which seeks to prohibit sexist advertising and advertising that promotes gender stereotypes, based on the following wording: “Anyone who, through any type of advertising message, uses or promotes stereotypes that justify or naturalise relations of subordination, inequality or discrimination based on sex, gender or sexual orientation, commits an infringement of the provisions of this law”.

This amendment is in line with the implementation of ESG criteria in consumer protection regulations. Importantly, the rule proposed by the bill extends beyond the traditional scope of consumer rights. Unlike Article 28 of the Consumer Law, which focuses on misleading advertising, this amendment addresses the broader societal issue of perpetuating gender stereotypes and inequality through advertising.