The "new" class action in Italy
23 April 2019
broadens the category of subjects who may claim damages: in fact, as a result of its inclusion in the Civil Procedure Code, the class action shall become an instrument available to anybody, whether they are consumers or not;
provides for the possibility to join the class action not only after the decision on the admissibility of the action has been made, but also following the ruling on the merits that determines the responsibility;
regulates the liquidation phase, in which the representative of the joiners and delegated judge shall take part.
The new class action shall come into force in April 2020, that is, one year after its publication.
In Italy, the class action was introduced for the first time under the 2008 Financial Law, which introduced Article 140-bis into the Consumer Code. That provision was subsequently amended in 2009 and 2012.
So far, such procedural instrument has had limited effect, in that numerous initiatives have been deemed inadmissible or, in some way, have been rejected. The new Law, according to the legislature, should allow a more extensive use of the class action, by making it an instrument of wider application and extent.
The new Law has incorporated the provisions in matters of class action, which were previously contained in the Consumer Code, into the Civil Procedure Code. The new Chapter VIII-bis “On Collective Proceedings”, which comprises 15 new articles (Article 840-bis and ff.), is included as part of Book IV on special proceedings.
We outline below some of the main new provisions introduced under the new Law:
- subjective scope: the action may be brought by registered organisations and associations, as well as by any individual belonging to the class, whether a consumer or not, who claims to have suffered injury to their “homogeneous individual rights”;
- objective scope: the new Law shall not limit the extent of application of the class action to certain predetermined cases; the class action may in fact be started in relation to any detrimental conduct in order to ascertain contractual and extra-contractual responsibilities and award compensation for damages and refunds;
- passive parties: public utility or public interest operators and commercial undertakings in connection with any conduct engaged in during the performance of the relevant activities;
- the court having jurisdiction: the court having jurisdiction is no longer the ordinary court, but the section of the court specialising in industry matters (the so-called companies’ court) in the place where the defendant undertaking or body is located;
- procedural aspects: the proceedings, to which the summary conviction (rito sommario di cognizione) shall apply, is brought by appeal and consists of three phases: (i) decision on the admissibility of the action; (ii) decision on the merits; (iii) liquidation (if any) of sums due to the joiners to the action. In this latter phase, the representative of the joiners, who drafts the homogeneous individual rights project and takes a decision on each accession, and the delegated judge, who rules on the admission of the claims and orders payment, shall take part;
- online portal: the publication of the provisions and notifications as well as the accession to the class action shall take place via an online portal managed by the Ministry of Justice;
- accession to the action (the so-called opt-in): there will be a possibility of joining the class action via the aforementioned electronic procedure, in two distinct phases: not only after the decision on the admissibility of the action has been made, but also after the ruling on the merits that determines the responsibility;
- remuneration: reward remuneration is envisaged for both the representative of the joiners and the appellants’ lawyers;
- settlement agreements in the course of the proceedings: until the oral discussion of the case, the judge may put forward a settlement or conciliation proposal, which is published on the online portal and notified to the parties; the agreement is accepted by accessing the online file. Following the decision upholding the action, a settlement agreement may be reached between the defendant company and the representative of the joiners. The publication of the draft on the online portal makes it possible to negotiate the agreement by electronic means.