A bill to amend the Consumer Protection Law - Is free Justice the same as the benefit to litigate without costs?

On September 6, bill No. 6442-D-2010 was introduced to the House of Representatives at the Federal Congress which, among other amendments, proposes to replace existing Articles 53 and 55 of the Consumer Protection Law (“CPL”), with the term “Free Justice” for “Benefit to Litigate Without Costs”.

The bill removes the defendant’s opportunity of disclaiming the benefit when it is given to plaintiffs with enough resources to afford trial costs, and adds that only in the case of “plus petitio” by the plaintiff, may the judge impose court costs on the plaintiff, assessing the proportion between the amount of the claim and the financial capacity of the parties, which is not the same as the opportunity given with the current article. Furthermore, it is only given for individual claims (Section 53), not for collective actions (Section 55)

It is worthwhile making a brief overview of the different interpretations made by legal authors and jurisprudence related to the concept of Free Justice.

On the one hand, part of legal opinion and several cases like “Adecua v. Banco BNP Paribas” (Commercial Court of Appeals,  Tribunal D, dated 12/04/2008, published en La Ley 2009-A, 554) argue that the term “Free Justice” cannot be understood as a synonym of “Benefit to Litigate Without Costs” contained in procedural law. Even though both recognize a common principle, “Free Justice” is free access to justice as a public service, which must not be restricted for financial reasons. Beyond that, plaintiff has to meet court costs like everyone else, unless he or she had a ruling giving him or her the benefit of litigating without costs.

This position is based on the parliamentary debates before the last amendment to the CPL was passed in 2008, when the discussion was focused only on the Court Tax instead of other costs. Furthermore, “Benefit to Litigate Without Costs” requires the plaintiff to prove lack of financial resources, while in “Free Justice” poverty is presumed. Hence, the burden of proof is switched and the plaintiff must produce the evidence.

On the other hand, legal opinion considers that “Free Justice” contained in Sections 53 and 55 of the CPL has the same scope as “Benefit to Litigate Without Costs”, as in the “San Miguel Martín Héctor y otros v. Caja de Seguros S.A.” case (Commercial Court of Appeals, Tribunal F, dated 06/29/10 published in elDial.com – AA62BA 09/09/2010).

This judgment states that Section 53 literally provides an entire free trial, analyzed above the purpose of protection of the law, intended to ensure the wide use of consumer rights.

Therefore, it sustains that “Free Justice” is the solution chosen by our legislation to remove barriers to consumers in their access to justice, not given only for financial reasons, but also for lack of information and the disproportion between the amount of the claim and the minimum court costs.

Likewise, the defendant has the opportunity to disclaim this request when it is given to plaintiffs with enough resources to afford the costs of the process, because this is reasonable when is promoted to avoid the payment of the court costs, but not just to make the plaintiff pay the Court Tax.

It is clear that the bill under analysis incorporates the last position mentioned above.

It is worth considering whether Representatives will take into consideration all the principles, rights and guarantees of all the parties involved, beyond the important principle of consumer protection. Also, it is important to consider the possible consequences that this new amendment should bring to the overloaded judicial system, with many actions that could be filed, even for almost no reason, because there is no judicial cost.