Class action. On 19.4.20, the ‘
provisions on
class action
‘ introduced by Law 12.4.19 no. 31. (1) A radical reform of the class action discipline for fairer and more effective access to justice? ABC to follow.
Class action
In Italy, 10 years of flat calm
Class action to protect the interests of consumers and users, introduced in Italy by the 2008 Finance Act, is currently governed by the Consumer Code. (2) And it soon proved ineffective with respect to its stated goals due to serious substantive and procedural limitations. Amendments in subsequent years have failed to overcome application problems that have often proved insurmountable. (3)
The possibility of bringing together in a single civil proceeding a plurality of claims related to an identical fact or act harming individual and collective rights was effectively thwarted. With the result that consumer associations are discouraged from legal initiatives, too many times declared inadmissible due to procedural flaws. And when even the few admitted actions have been successful, many years after they were initiated, compensation has been unsatisfactory. Light years away from the ‘exemplary and punitive sanctions‘ of the U.S. model only paid lip service to by the Italian legislature. Flat calm.
Class action
, the new procedure
Law 31/19 transfers the discipline to collective action from the Consumer Code to the Code of Civil Procedure (4). The action may be brought either by individual citizens or by nonprofit organizations or associations registered in a special public list established at the Ministry of Justice (5). With respect to businesses as well as entities that operate public services or utilities. The jurisdiction is entrusted to the so-called business courts, specialized sections established in 2012 (Decree Law 1/12, Article 22).
The proceedings follow the rules of summary proceedings (Code of Civil Procedure, Articles 702-bis et seq.). Within 30 days of the first hearing, the court must decide by order on the admissibility of the application, with the option to suspend the judgment if an investigation is pending before an independent authority (e.g., Antitrust Authority, Privacy Authority) or a case before the administrative court on the same facts. The proceedings must be settled by judgment, within 30 days after the oral argument of the case.
The application is declared inadmissible in the following cases:
– manifest groundlessness,
– Lack of homogeneity of individual rights,
– Conflict of interest of the plaintiff against the respondent,
– Inability of the plaintiff to adequately care for the homogeneous individual rights asserted in court.
The order of inadmissibility may be appealed to the Court of Appeals within thirty days of its notice or service. It is also possible to re-litigate the action once there has been a change in circumstances, or by deduction of new factual or legal grounds.
In the order of admission, the court sets a peremptory deadline for other individuals with homogeneous individual rights to join the action through the telematics services portal. Those who join, while not assuming the status of parties, are entitled to access the computer file and receive all communications by the clerk’s office.
The ruling of acceptance or rejection is published in the public area of the telematics services portal. In the successful judgment, the court will also provide for the claims for compensation or restitution.
Class action, the main changes
1. Form of application and competence. There is a change from a writ of summons to an appeal in the exclusive context of the summary judgment procedure. The competent court is identified in the specialized business section in the court where the respondent is located.
2. Entitled parties are no longer only consumers. Indeed, the transfer of the discipline-from the Consumer Code to the Code of Civil Procedure- legitimizes the initiative of all those who wish to make claims for compensation due to the injury of ‘homogeneous individual rights.’ (6) Citizens, employees and the self-employed, businesses can take action.
3. Extent of rights protected. The action can be brought for damages (or restitution, as the case may be). Not only in cases of contractual liability (ex. Trade fraud, worker abuse, unfair trade practices). But even in the case of unjust damage caused by tortious acts (e.g., the environmental pollution).
4. Extension of protective tools, among which collective injunctive action is added. An instrument of preventive protection, through which the court can be asked to order the cessation of conduct that is detrimental to a legally important interest. That is, the prohibition of reiteration of conduct.
5. The deadline for joining the collective action is extended. Not only at the stage after the admissibility order but even after the upholding judgment. In both phases, the court sets a peremptory deadline for accession.
6. Information technology tools. The measures are published on the website of the Ministry of Justice. Applications for membership are entered directly into the computer file, with no requirement to engage the services of a defense attorney.
Class action
, U.S. and Italian models compared
In the United States,
the
class action
still constitutes a bulwark for the protection of collective interests. With extraordinary effects also in deterring the ‘Corporation‘ from carrying out acts that are fraudulent or manifestly detrimental to citizens’ rights. The giant Mondelez, for example, would never dare to make fun of the its consumers in the U.S. on the amounts of cheese in ‘Sottilette’. Instead, as he is wont to do Italy.
I ‘
punitive damages
‘, beyond the Atlantic, indeed prescind from the exact estimation of the harm suffered the function of rebalancing the economic distortions caused by unlawful and injurious conduct of the ‘Corporation‘. Where in Italy, by contrast, punishment performs a restorative function and is therefore limited to the harm actually suffered. Sometimes, in itself, totally laughable. (7)
Dario Dongo and Giulia Torre
Notes
(1) See Act April 12, 2019, no. 31, ‘
Provisions on class action’
,
https://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2019-04-18&atto.codiceRedazionale=19G00038&elenco30giorni=true
(2) See Law Dec. 24, 2007 no. 244, Article 2, Paragraph 445-449. See d.lgs. 206/05 (Consumer Code), Article 140-bis
(3) A first substantive reform of the institution came with Law 27/12, on ‘rules to make class action effective.’ Which extended protection to collective interests (in addition to individual rights) and ‘homogeneous‘ subjective rights (no longer just ‘identical‘ ones). In relation to services, as well as products
(4) See Code of Civil Procedure, Book Four, Title VIII-bis (Group Proceedings), Articles 840a et seq.
(5) To this end, an implementing decree must be issued within 180 days after the reform comes into force
(6) The ‘purpose of the procedural tool of class action introduced by the legislature in 2009‘ appears ‘evidently to protect consumers in the face of unlawful conduct that exerts its effects, in a similar manner, on a plurality of individuals‘ (Supreme Court, ruling 2320/2018)
(7) Another difference is the ‘opt-out‘ system, in force in the U.S., under which those who meet the requirements specified by the court at the preliminary hearing become part of the class action unless they choose to exclude themselves. In Italy, on the other hand, the ‘opt-in‘ system applies, according to which only those individuals who voluntarily decide to join the class action are part of it. With the real risk that some individuals may not learn of the action and thus lose the opportunity to participate in it
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in law, master in European Food Law, she deals with agro-food, veterinary and agricultural legislation. She is a PhD in agrisystem.
