“In collective actions, the communications strategy is every bit as important as the litigation strategy.”

The European Commission has issued Spain with a Reasoned Opinion for failing to transpose the Representative Actions Directive into its domestic legal framework. Nearly four years behind schedule, following forty-four parliamentary extensions, Brussels’ patience appears to have run out.

Public debate has largely focused on the legal consequences, the possibility of infringement

proceedings before the Court of Justice of the European Union (CJEU), potential financial penalties for the Spanish State, and technical discussions surrounding the opt-in or opt-out model and third-party litigation funding. However, one dimension has received far less attention: the cost that this regulatory vacuum is already imposing on businesses operating in high-exposure sectors.

Where the legal framework governing collective actions remains uncertain and fragmented, companies lose valuable time. They cannot predict what type of claim they will face, how broad its scope may be, what funding mechanisms may be involved, or who will lead the proceedings. This uncertainty makes it considerably more difficult to prepare a coherent response, including from a communications perspective. In collective litigation, the communications strategy is just as important as the legal defence, because the public narrative takes shape long before the facts have been established.

That is precisely what distinguishes this form of litigation: public perception does not wait for judgment. As soon as a collective claim begins to emerge, even where the legal framework remains uncertain, the media frame the story, regulators begin monitoring developments, investors take note, and consumers start

reassessing their relationship with the brand. The opening weeks of a collective action are often the period of greatest reputational vulnerability for a company: at that stage, the least is known, the greatest degree of improvisation occurs, and public opinion begins to crystallise around a particular narrative.

What collective actions bring into focus

The legislative deadlock exacerbates precisely this problem. A company operating in consumer products, financial services or environmentally sensitive sectors cannot prepare effectively if it is unable to anticipate how a claim is likely to be framed, which stakeholder groups will become engaged, or how wide the gap may be between the allegations advanced and the corporate narrative it has spent years building. 

It is precisely within that gap, between a company’s public positioning and the issues raised by a collective action, that the most difficult reputational damage to reverse is created.

Meanwhile, consumer organisations are not standing still. It was a financial consumer association that lodged the complaint with the European Commission in December 2024, ultimately leading to the issuance of the Reasoned Opinion. Law firms have been exploring for months how to activate collective litigation mechanisms within the current legal framework. Litigation funders continue to assess opportunities. The ecosystem is evolving even though the legislation has stalled, and every development within that ecosystem is a signal that exposed businesses should already be monitoring.

There is another factor that should not be overlooked: exposure is not evenly distributed across sectors. Companies with large consumer bases, mass-market products or a history of previous claims face a significantly higher risk of becoming the target of a high-profile collective action.

They are also the businesses that have invested most heavily in building narratives centred on trust, responsibility and customer proximity. When that narrative collides with a collective claim, the challenge becomes twofold: defending the legal position while simultaneously managing the gap between what the company has publicly promised and what it is alleged to have done.

Litigation PR strategy in collective actions

Effective litigation PR is fundamentally about anticipation. It means understanding, before proceedings are even commenced, how the story is

likely to be told and who will shape that narrative. It means identifying which expectations created by the company itself may be exposed, and anticipating how institutional investors, many of whom have assessed companies against ESG criteria for years, are likely to react. This requires advance work: mapping exposure by sector, identifying the types of harm most likely to arise, understanding which stakeholders possess the ability to mobilise public opinion, and developing a narrative capable of withstanding sustained scrutiny, not merely the first few days of media attention.

The European framework governing collective actions is already in place. What Spain still lacks is the domestic legislation formally implementing it. However, the absence of legislation does not eliminate the risk. Legal practitioners are already identifying alternative procedural routes, litigation funders remain active, and the wider European landscape, where most Member States have already transposed the Directive, will continue to generate precedents and exert increasing pressure. By the time the new regime is fully established, the opportunity to prepare will largely have passed. In collective litigation, legal strategy resolves only half of the challenge. The other half has a name of its own: reputation.

You can read the full article published in Expansión here.