In Mexico, there are two important dates for the protection of collective rights to have access to justice: July 29, 2010, and August 31, 2011. The first date saw a reform to the Political Constitution of the United Mexican States, which provided for the Federal Congress to issue laws to protect collective interests, requiring that such laws be specific to the applicable matters and the judicial procedures for filing claims to enforce such rights. It was also determined that the jurisdiction to resolve collective disputes would belong to federal judges.
Based on the constitutional reform referred to above, on August 31, 2011, a Decree was published that reformed various laws to include not only judicial procedures for enforcing collective rights, but also reforms to laws in various matters to determine in which specific issues there would be a right to file a collective action and, if necessary, actively legitimize various Mexican authorities. The applicable matters for collective actions are: Environmental; consumer protection; economic competition; and protection of users of the financial system. The jurisdiction of federal judges was confirmed, and a special procedure in the matter was created.
The impacted legal regulations were:
CÓDIGO CIVIL FEDERAL
LEY FEDERAL DE COMPETENCIA ECONÓMICA
LEY DE PROTECCIÓN Y DEFENSA LA USUARIO DE SERVICIOS FINANCIEROS
LEY GENERAL DE EQUILIBRIO ECOLÓGICO Y LA PROTECCIÓN AL AMBIENTE
LEY FEDERAL DE PROTECCIÓN AL CONSUMIDOR
The respective judicial procedure can be described as follows:
Rights and interests protected by collective actions:
- Diffuse and collective rights and interests, understood as indivisible in nature, whose ownership belongs to an indeterminate or determinable collectivity of persons related by common circumstances of fact or law.
- Individual rights and interests of collective incidence, understood as divisible in nature, whose ownership belongs to the individuals comprising a determinable collectivity of persons related by legal circumstances.
Strictly collective action:
It is indivisible in nature and is exercised to protect collective rights and interests, whose ownership belongs to a determined or determinable collectivity based on common circumstances, and aims to legally claim from the defendant the repair of the damage caused, consisting of the performance of one or more actions or refraining from performing them, as well as to cover damages individually to the members of the group, which derives from a common legal relationship mandated by law between the collectivity and the defendant.
Homogeneous individual action:
It is divisible in nature and is exercised to protect individual rights and interests of collective incidence, whose ownership belongs to individuals grouped based on common circumstances and aims to legally claim from a third party the compulsory fulfillment of a contract or its rescission with its consequences and effects according to the applicable legislation.
Steps of the procedure:
a. The Federal Judge will review the following issues and facts:
- That the acts in question harm consumers or users of public or private goods or services or the environment, or that they have harmed consumers due to the existence of undue concentrations or monopolistic practices, declared to exist by a final resolution issued by the Federal Competition Commission.
- That it concerns common issues of fact or law among the members of the relevant collective.
- That there are at least thirty members in the collective, in the case of collective actions in the strict sense and homogeneous individual actions.
- That there is a coincidence between the object of the action exercised and the harm suffered.
- That the subject matter of the litigation has not been the subject of res judicata in previous proceedings as a result of the exercise of collective actions.
- That the action has not prescribed; and
- Any others determined by the applicable special laws.
b. Once reviewed, there are three ways for the procedure to follow: 1.- To admit the lawsuit and serve the defendant. 2.- To prevent the plaintiff to clarify certain issues of the lawsuit. 3.- To dismiss the lawsuit in the following cases:
- That the promoting members of the collectivity have not given their consent in the case of strict collective or homogeneous individual actions.
- That the acts against which the action is directed constitute administrative proceedings followed in the form of a trial or judicial proceedings;
- That the representation does not meet the requirements established in the Federal Consumer Protection Law;
- That the collectivity in the strict collective or homogeneous individual action cannot be determined or determinable based on the affectation to its members, as well as the common circumstances of fact or law of said affectation;
- That its resolution through the collective procedure is not suitable;
- That there is a pending lawsuit between the same type of actions, in which case consolidation will proceed; and
- That the associations that intend to exercise standing in the process do not meet the requirements established in the Federal Consumer Protection Law.
The judge may verify compliance with these requirements during the procedure ex officio or at the request of any interested party.
c. An appeal is available against the admission or dismissal of the lawsuit, which must be processed immediately.
d. The defendant will have fifteen days to respond to the lawsuit from the date the order admitting the lawsuit is served. The judge may extend this period for an equal period at the request of the defendant.
e. Once the lawsuit is answered, the plaintiff will be given a five-day period to respond.
f. A pretrial and conciliation hearing must take place.
g. If the parties do not reach any agreement in the preliminary and conciliation hearing, the judge will proceed to open the trial for a period of sixty business days.
h. Once the written evidence is presented, the legal representative must ratify it under oath before the judge.
i. The order admitting the evidence will set the date for the final hearing of the trial, in which, within a period not exceeding forty business days, the evidence will be examined and can be extended by the judge.
j. Once the evidence has been presented, the judge will give the parties a period of ten business days to argue what they deem appropriate.
k. The judge will render a judgment within thirty business days following the final hearing.