The Italian Class Actions and recent European regulatory developments

In 2020, the aforementioned proceedings – provided for by Consumer Code, articles 139, 140 and 140-bis – was replaced by Law n. 31/2019, with the target of replacing the “old” class action.

 

This “new” Class Action – implemented for events occurred after 19.05.2021– is regulated by the Italian Code of Civil Procedure (articles 840-bis – 840-sexdecies) and has a more extended application in terms of subjects and matters that could be involved in it.

 
This type of lawsuit can be actioned to protect homogeneous rights in order to get money compensation, resti­tutions or to ascertain the professional’s contractual or non-contractual liability. This means that there are no actual limitations regarding the matter in dispute.

 
As for the capacity to sue, the defendant has to be the "author of the tortious conduct", i.e. only: companies, operators of public services or public utilities can be sued, with respect to acts and conduct undertaken in the course of their respective activities.

 
With reference to the capacity to sue, these proceedings can be brought in by a single person (natural or legal person), not necessarily a consumer and can also be presented by nonprofit organizations or associations whose statutory objectives include the protection of interests adversely affected by a specific conduct. How­ever, these organizations are eligible to bring the action only if they are registered in the public list established at the Ministry of Justice.

 
Access to this register is regulated by Decree No. 27 of 17 February 2022, which provides, among other things, that the association must have been established for two years. In addition to the “new” class action regulated by Law n. 31/2019, a further representative action was introduced in 2023.

 

The Legislative Decree of 10 March 2023 (in force since 25 June 2023), by transposing the EU Directive 2020/1828 introduced – in the Consumer Code – the proceedings aimed at protecting consumers through a national representative action (i.e. brought before the Italian Judge) and through a cross-border representative action (i.e. brought before the Italian Judge by qualified entities/groups/associations of other Member States or brought in another Member State by Italian entities /groups/ association). This new mechanism is added to the “new” class action provided for in the Code of Civil Procedure, without overlapping it, in order to promote injunctions and compensations measures against professionals (i.e. the subject to be sued: any natural or legal person), who violate provisions referred to rights protected by the European Union.

 
More specifically, the representative action can be raised only for cases listed in Annex II-septies, among which there is (a) unfair commercial practices, (b) misleading advertising, (c) product safety, (d) air carrier liability, (e) distance financial services, (f) energy supply and gas matters, (g) financial liability and (h) e-money business disputes.

 

The representative action finally gives the opportunity to consumer bodies and associations, who have the requirements of independence and are able to register in the special section of the list referred to in the Consumer Code, article 137, to file also cross-border class actions.

 
The aim of the representative action is to protect consumers trough “compensatory” protection (e.g. conviction to payment, price reduction, product replacement, reimbursement or termination of the contract) or “inhibitory” protection (e.g. ceasing order or prohibition of unlawful conduct by the professionals, publication of a correc­tion, etc.), without having to collect the consents of consumers in advance.

 
Furthermore, the inhibitory and compensatory protections of the representative action introduced in 2023 can be requested jointly, unlike what is foreseen for the “new” class action of the Code of Civil Procedure, in which if both actions are filed in the same proceedings, the Judge has to order the separation of proceedings.

 

This representative action can be brought up by qualified entities, even without a specific mandate from the consumers and has to be filed after having sent a letter before action, otherwise the action is inadmissible.

With the new legislation on representative action, it was decided to also regulate third party funding. The new regulation of 2023 actually provides that if a third party funding is involved, it is necessary to disclose the source of the funding received or promised by third parties. The application for the representative action is moreover inadmissible if the person who financed the action is a competitor or an employee of the defendant.

 
Given the above, in general, the last few years have witnessed a significant modernization in the field of class actions in Italy. It will be interesting to observe how Italian courts will apply the new representative action legislation, it will be especially of note to observe how cross-border representative action will be handled and how Courts will manage the relationship between new class action and representative action.