It was dismissed due to procedural inadequacy

FACUA and the Prosecutor's Office appeal the file of Movistar Fusion case

The judge did not analyse the illegality of the tariff increase and just said that the association should had notified each one of the four million clients of its intention of suing Telefonica.

FACUA and the Prosecutor's Office appeal the file of Movistar Fusion case
The judge has not taken into consideration if the increase was illegal. | Picture: flickr.com/sergiosf (CC BY-NC 2.0).

FACUA-Consumers in Action and the Prosecutor's Office have appealed the file of the Movistar Fusion class action submitted by the association against Telefónica de España (Movistar) in response to the company's illegal increase of the Movistar Fusión deal tariff, that was launched and advertised for years with the promise of keeping them "forever".

Last 21 of March took place the preliminary hearing, but the presiding judge of Madrid's Commercial Court Number 8 decided to cancel it to decide if he admitted Telefónica's appeal. The company argued that FACUA should had notified each one of the four million clients of Movistar Fusion that it was to sue the company so they could join the class action. On 5 April, the judge ruled in favour of the company and ordered the dismissal of the case for "procedural inadequacy", without even considering the illegality of the company.

In the decree, the judge shows his doubts and reservations about his own decision, and even suggests FACUA, as the plaintiff, to appeal to Madrid's Provincial Court. The appeal has been filed both by the association and the Prosecutor's Office itself, who had already joined in ex officio and called "illegal" and "disloyal" the tariff increase.

Unfair and disproportionate requirement

FACUA and the Prosecutor indicate in their corresponding appeals that it would be unfair and disproportionate having to inform all the possible consumers affected by the tariff increase of their intention to go to trial against Telefonica. This requirement would make it impossible to file class actions to protect collective interests like this one, with about four million customers affected all around Spain. Obviously, the association does not have the contact details of such a number of people as to make a reliable communication and, even if Movistar provided them, the costs would skyrocket.

If these appeals are admitted, the trial would restart and therefore it would allow the judge to find out whether Movistar’s tariff increase is abusive and illegal. FACUA represents more than 4,000 associates. The association proposes the company should be forced to nullify the increase and go back to prior prices, and remedy the negative impact on consumers by refunding the additional amounts already charged as a result of the increase since 2015.

FACUA also submitted a series of complaints against Telefónica Movistar for misleading advertising and unfair terms to the 17 regional consumer protection authorities. Andalusia and Madrid have decided to fine the company. In the first case, with 6.23 million Euros, an amount far from the 70 million irregularly charged to Andalusian consumers with the first increase. Madrid only fined with the ridiculous amount of 30,000 Euros.