Date of the last update: January 18, 2024.
The institution of class action was introduced into the Italian legal system in 2007 as a result of an amendment to the Consumer Code (Codice del consumo) implemented by the virtue of the new Article 140 bis. This provision allowed consumers to pursue precisely determined claims against entrepreneurs (azione di classe). The Article 140 bis of the Consumer Code entered into force on 1st January 2010 and was subsequently amended in 2012. In 2021, the indicated regulations were replaced by the amendment introduced by Law No. 31/2019 – new group proceedings were regulated by the Articles 840(2)-840(60) of the Italian Code of Civil Procedure (Codice di procedura civile) and they apply to events which occurred after the 19th May 2021. The new regulation significantly expanded the scope of cases which may be heard in group proceedings, i.a. allowing class actions to be brought on behalf of entities other than consumers and removing restrictions on subject matter of group proceedings.
Further significant changes in the scope of group proceedings were introduced by the Legislative Decree No. 28 of 10th March 2023 (Decreto legislativo n. 28), which implements the Directive 2020/1828 into the Italian legal order. The decree introduced new regulations in the Italian Code of Consumer Law (Codice del consumo). Currently, therefore, collective proceedings are regulated by the following two legal acts: Code of Civil Procedure (classic group proceedings) and the Consumer Code (proceedings involving representative actions).
The class action is based on the opt-in model. Consequently, only those who join the action may participate in the proceedings, while it is possible to join the case also during the proceedings.
The group members are not parties to the class action and their rights in the proceedings remain limited.
The judgement issued in the case is binding for all who brought forth the class action or joined the group at the further stages of the proceedings. Those who did not join the group may pursue their claims individually, however are not entitled to bring a subsequent equally-based class action against the same entrepreneur.
Class actions are examined by special commercial divisions of the courts (Sezione Specializzata in materia di imprese) with a local jurisdiction according to residence of the defendant.
Under new regulations being in force since 2021, there are no limitations regarding subject matter of cases which may be examined under the procedure. However, the condition for admissibility to examine the case remains unity of rights being asserted, which means that the aforementioned rights must be based on the same basis. The unity of rights is examined taking into account factual and legal grounds of the claim.
The legal standing in the proceedings is granted to any member of the class, both to consumers and entrepreneurs. The action may also be brought by an authorized social organization or association included on the list of the Minister of Justice, whose statutory activities include protection of interests violated by actions of the defendant. In turn, the condition for entry on the list is, i.a., operating by the organization for at least 2 years.
The first phase of the group proceedings includes an admissibility test. It begins with posting an information on filing of a class action on the portal run by the Minister of Justice (Portale dei Servizi Telematici), which aims at encouraging potential parties to join the proceedings. Subsequently, the court sets a hearing and examines the admissibility of the proceedings. A claim is admissible when it jointly meets the following conditions:
Italian law does not provide for any requirements regarding the minimum number of group members.
The court shall determine whether the proceedings are admissible at the first hearing or within 30 days thereafter. The decision on admissibility is appealable. In the decision on admissibility of the group proceedings, the court sets a period of 60 to 150 days to join the group. That information is published on the website of the Minister of Justice. The regulations allow joining the proceedings later, even after the court has ruled on the merits of the case.
The second phase of the proceedings involves evidentiary proceedings. In the next phase, the court issues a ruling on the defendant’s liability. Here there occurs the next possibility of joining the group. In the final phase the court makes an award of claims and decides on costs of the proceedings.
An important change introduced in 2021 is the emphasis on amicable dispute resolution. Both the court and the parties may propose settlements.
In case of allowing the statement of claims in group proceedings, the court may award damages, may also establish liability, or prohibit certain actions.
Italian law does not allow for so-called punitive damages.
In general, the losing party is obliged to reimburse costs of the winning party. However, the courts have a relative discretion in awarding costs and rule depending on several factors, such as behaviour of the parties and the nature of dispute.
The court shall award the defendant directly to the representative (and their attorney) costs representing a percentage (which varies depending on the number of class members) of the amount that is owed to the class members by the defendant. This mechanism is a sort of bonus, specific for group proceedings, which aims at additional encouragement to use the procedure.
It is possible, although rarely used in practice, to finance proceedings by third parties. In addition, the regulations implementing Directive 2020/1828 explicitly introduced third-party-financing of representative actions.
Generally, it is the representative who is obliged to bear costs of the proceedings, although they may demand so-called “fees for joining in” from the group members.
Under the old regulations being in force before 2021 amendments, between 2008 and 2018 only 48 class actions were filed, of which 23 were declared inadmissible and only 4 were admitted. The unpopularity of the group proceedings was due to the restrictive conditions for admissibility of group proceedings.
The closure of group proceedings with a decision on the merits has therefore been, to this date, a rarity. The judgement of the Tribunal in Naples of February 2013 – rendered in case against organiser of tourist services which did not meet the agreed conditions – had a substantial significance due to the fact that in this judgment, the Tribunal in Naples allowed claims of just a part of injured consumers and dismissed the remaining claims because they did not meet the premise of “identicalness”. Simultaneously, the Tribunal indicated that the amendment of 2012, which changed the premise of admissibility of group proceedings from the condition of “identicalness” to the condition of “homogeneity” of pursued claims, should improve effectiveness of class action mechanism in the future. An (only) partial admission of the consumers’ claims was also the case in the judgement of the Tribunal in Turin of March 2014., file ref. no. 32770/2011.
Group proceedings in Italy gained more publicity in connection with issuance of the decision on allowing consumers’ class action against the Volkswagen Group for consideration by the Court of Appeals in Venice in June 2016. In this action, consumers demanded damages on the grounds of perpetration of unfair commercial practices by Volkswagen Group consisting in manipulating carbon dioxide rates in cars manufactured by Volkswagen.
The 2021 legislative changes are intended to make it easier to pursue claims in group proceedings. What is more, the number of class actions brought will probably also be affected by the new regulations in the field of representative actions. The website of the Ministero delle Imprese e del Made in Italy published an information about the filing of six representative actions in 2023 by the Consumer Movement Association (L’Associazione Movimento Consumatori). Five of these proceedings have been brought against car rental companies and involve declaration of invalidity of prohibited clauses in contracts with consumers. In contrast, one proceeding was brought against a bank – also subject to a declaration of invalidity of prohibited clauses in contracts with consumers.
The Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC was implemented by Italy through Decree Legislative Decree No. 28 of March 10, 2023 (Decreto legislativo n. 28). The decree introduced changes to the Consumer Code. The implementation includes regulations on bringing domestic and cross-border lawsuits. The new regulations have been introduced alongside existing regulations of the new group proceedings regulated by the Italian Code of Civil Procedure and do not overlap with them. The purpose of the new regulation is to promote legal measures against entrepreneurs who violate rights protected by European Union law.
The representative action is intended to provide consumer protection through claims of an adjudicatory or prohibitory in nature, without the need to first collect consents from consumers. Both types of claims may be pursued together in a single proceeding – unlike in the existing class proceedings, where it is required to separate these claims into different proceedings.
A requirement for admissibility of a representative action is to first address a summons to the defendant.
The 10th March 2023 Legislative Decree also introduces regulations for financing of proceedings by the third parties. The plaintiff is required to disclose the source of funding they received, or is expected to receive, from a third party. In addition, the recognition of a representative action is inadmissible, shall the lawsuit be funded by a competitor or by an employee of the defendant.