Italy

A. Brief Overview and History

B. Types of Claims and Scope of Lawsuits That Can Be Filed

C. Class Representatives and Standing to Sue

D. Key Procedural Requirements

E. Binding Others

F. Remedies Available

G. Settlements and Financing

H. Other Key Class Action Issues

Section Authors: Lamberto Schiona " Margherita Farina

A. BRIEF OVERVIEW AND HISTORY

Italy-based class actions provide unique litigation opportunities as they build on an ad hoc multi-layered and ever-evolving system of legal norms. The general notion of "class actions" indeed encompasses three legal tools, which coexist as they serve distinct scopes of application and pursue different goals: (1) (Private) Class Actions; (2) Representative Actions; and (3) Administrative Class Actions. In sum:

  1. (Private) Class Actions1 aim at protecting the homogeneous individual rights of the members of a certain class against enterprises/undertakings or entities in charge of public services or public utilities, with respect to misconducts that occurred from May 19, 2021, onward2 while rendering their respective activities. Today, this is considered the very "general" class action tool (lex generalis) in that it establishes the key collective redress principles under Italian law and features a broad scope of application. This is consistent with the legislative choice to make it part of the Italian Code of Civil Procedure.

  2. . Representative Actions3 aim at protecting consumers' collective interests arising from the violation of certain EU regulations and directives (as implemented in Italy), effective June 25, 2023.4 Today, this is considered a subset of the (Private) Class Action (lex specialis), which is included in the Italian Consumer Code. (Private) Class Actions and Representative Actions together form a "double track system."

  3. Administrative Class Actions5 aim at protecting collective rights against public administrations and concessionaires of public services that deviate from certain pre-set qualitative and economic standards, or violate the rules governing their operations, effective January 15, 2010. Today, this is considered a self-standing redress, with limited interplay with the "double track system," if at all, as it embodies the constitutional principle of "quality performance" and "impartiality" that the Public Administration must ensure (Art. 97 of the Italian Constitution).

All the above tools provide for opt-in mechanisms.

B. TYPES OF CLAIMS AND SCOPE OF LAWSUITS THAT CAN BE FILED

Each class actions tool is designed to pursue specific claims.

(Private) Class Actions. Art. 840-bis of the Italian Civil Procedure Code stipulates that individual homogeneous rights, in contract and/or in tort, may be judicially enforced by means of class actions governed by the new Title VIII-bis. While the law-maker did not elaborate on the notion of "individual homogeneous rights," generally these are rights arising from the very same contractual breach or tortious event, which may give rise to a harm-type across the class that may be determined via uniform criteria. Virtually, any right may form, under the circumstances, a homogenous right eligible for (Private) Class Action protection, unless a special tool (such as the Representative Action or the Administrative Action if pre-conditions are met) governs that specific case. The redress tools comprise damages or restitution claims to remedy a homogenous right violation, and injunctions to impede the (further) perpetration of unlawful conducts.

Representative Actions. Pursuant to Art. 140-ter of the Italian Consumer Code the collective interests of a number of consumers who were or may be harmed by a violation of certain legal provisions devised to govern the subject matters listed in Annex II-septies thereof—i.e., certain EU Regulations and/or EU directives, as implemented—may be pursued via Representative Actions. "Collective interests" echo the wellestablished notion of "diffused interests," which indicate interests that belong collectively, rather than individually only, to anyone part to a certain category or community and may potentially include all the citizens and residents of Italy. When collective interests are at stake, the scope of application of Representative Actions strictly hinges on Annex II-septies, as incorporated in the Italian Consumer Code, which covers, i.a., the following: unfair trade practices, consumer goods warranties, misleading advertising, transportation, electricity, gas, tourism, e-commerce, digital services, data protection, product and food safety, insurance and investment funds. The redress tools comprise injunctive relief to inhibit the continuation of an unlawful conduct, compensatory damages, and restitution claims to remedy a collective interest violation.

Administrative Class Actions. According to Art. 1, paragraph 1 of Legislative Decree no. 198 / 2009, administrative class actions seek to restore "the correct course of the administration's duty or the correct provision of a public service" when a direct, tangible, and current violation of identical material interests occurs. These actions are indeed also known as "collective actions for the effectiveness of the action of government entities and the providers of public services."

C. CLASS REPRESENTATIVES AND STANDING TO SUE

Each class actions tool may be invoked by and against specific persons.

(Private) Class Actions. The standing to sue is especially broad as in principle anyone holding an individual homogenous right that may form a class, may bring a (Private) Class Action, be they consumers and/or users, professionals, enterprises, trade associations, etc. Associations or organizations, whose statutory objective includes the protection of homogeneous rights, may also initiate (Private) Class Actions, provided that they are enrolled in a specific public register established by the Ministry of Justice. As to the standing to be sued, (Private) Class Actions may be brought against business entities or entities providing public services or public utilities limited to conducts put forth in the course of their activities. It is debated whether professionals may be sued under this tool.

The redress tools comprise injunctive relief to inhibit the continuation of an unlawful conduct, compensatory damages, and restitution claims to remedy a collective interest violation.

Representative Actions. The standing to sue is significantly limited compared to (Private) Class Actions. Pursuant to Art. 140-quater of the Italian Consumer Code, only: (i) nationally representative consumer and user associations (included in a special register held by the Ministry of Enterprises and Made in Italy); (ii) independent public bodies in charge of the application of European Union rules on the protection of consumer interests; and (iii) public and private bodies representing the interests of consumers in another Member State (enrolled in a special register held by the European Commission), may file Representative Actions before Italian courts (aka "Domestic Representative Actions"). Pursuant to Art. 140-quinquies the same entities, if they meet specific experience, resources, independence, and transparency requirements and are registered in a special section of the register held by the Ministry of Enterprises and Made in Italy, may bring crossborder Representative Actions before the competent courts of another Member State (aka "Cross-Border Representative Actions"). This means that these entities only may bring Representative Actions on behalf of consumers, irrespective of having received any specific power or mandate from consumers, while consumers themselves do not have an individual right to seek redress via this tool. However, consumers may in any case bring individual actions, i.e., the (Private) Class Action (this may cause a risk of overlapping between judicial tools). As to the standing to be sued, Representative Actions may be filed against any "professional person," defined as any natural or legal person, public or private, acting, including through another person, for purposes relating to his or her trade, business, craft or profession in order to obtain injunctive or compensatory relief. This is a particularly broad notion, which comprises any enterprise, public or private, including entities operating public services or utilities.

Footnotes

1. Law no. 31 dated April 12, 2019, introducing a new framework for class actions, i.e., the (Private) Class Action, by adding Title VIII-bis, named “On collective proceedings,” to the Italian Civil Procedure Code, which comprises the legal provisions from Art. 840-bis to art. 840-sexiesdecies.

2. Conducts occurred before May 19, 2021, (“Cut-Off Date 1”) may instead be pursued under the former class action governed by Article 140-bis of the Italian Consumer Code, which was first introduced in the Italian legal system by the Italian Budget Law no. 244 dated December 24, 2007, supplementing the Legislative Decree no. 206/2005 or Italian Consumer Code, as later amended and supplemented (several times) (“Surviving Old Regime”). To the extent the applicable statute of limitations for violations occurred before May 19, 2021, runs, the Surviving Old Regime, albeit formally repealed, will survive and apply. Disputes as to applicable law for conducts that occurred across the Cut-Off-Date 1 are thus expected. For an overview of the Surviving Old Regime we refer you back to our former class actions publications.

3. Legislative Decree no. 28 / 2023 transposing the EU Directive 2020 / 1828 on representative actions, amending the Italian Consumer Code.

4. It is debated whether conducts occurred before June 25, 2023, (“CutOff Date 2”) may be pursued under the Surviving Old Regime or if they can be pursed at all under the Representative Actions regime.

5. Legislative Decree no. 198/2009, as amended and supplemented from time to time.

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