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Italy

Author: Eleonora Rajneri/ Cristina Poncibò

VI. Case law

On July 2, 2013 the database of the Foro italiano (one of the most important Italian reporting system for the case-law) contained 53 cases under the key-word: "Azione di classe". Given that there is a duplication of certain cases in the database, it is possible to conclude that the relevant cases are about 45.

The vast majority of cases concerns Consumer Law and have a particular focus on banking services. With respect to procedural issues, most cases regard the interpretation of the rules of standing and the certification criteria.

A. Table

Year

Court

Subject

Keywords

2013

Corte di Appello di Napoli, 18.02.2013, n. 2195

Consumer Law - All-inclusive holiday package

Consumer association - Standing - Procedural issues

2012

Cass. civ., sez. I, 14.06.2012, n. 9772,
Codacons v. Intesa Sanpaolo,
Foro it., 2012, I, 2304, commented by De Santis,
Giust. civ., 2012, I, 1667

Consumer Law - Banking services

Consumer association - Standing - Procedural issues

2012

Corte di Appello di Napoli, 29.6.012, Banca Campania v. Assoconsum Onlus,
Foro it., 2013, I, 342

Consumer Law - Banking services

Consumer association - Standing - Public register of consumer associations - Adequacy of representation

2012

Trib. Roma, 27.04.2012,
Codacons v Univ. Cattolica Sacro Cuore,
Nuova giur. civ., 2012, I, 903, commented by Libertini and Maugeri

Consumer Law - Public Health Services

Definition of business for the purposes of the azione di classe - Italian National Public Health Service - Standing

2012

Corte di Appello di Roma, 27.01.2012
Codacons v. Soc. Bat Italia,
Foro it., 2012, I, 1908, commented by Palmieri

Consumer Law - Tobacco Litigation

Consumer Law - Tobacco - Entering into force of the azione di classe

2012

Trib. Milano, 13.03.2012, Codacons v. Soc. Voden Medical Instruments,
Foro it., 2012, I, 1909, commented by Palmieri and De Sanctis

Consumer Law - Unfair Commercial Practices

Unfair Commercial Practices - Misleading advertising - Burden of proof

2011

Trib. Torino, 07.04.2011,
De Francesco v. Banca pop. Novara,
Nuovo notiziario giur., 2011, 109, commented by Zuccarello,
Corriere giur., 2011, 1108, commented by Marinucci,
Giur. merito, 2012, 367, commented by Fiorio

Consumer Law - Banking services

Consumer Law - Banking services

2011

Corte di Appello di Torino, 23.09.2011,
Altroconsumo
c. Intesa SanPaolo
Danno e resp., 2012, 1236, commented by Frata

Consumer Law - Banking services

Consumer Law - Banking services

2011

Corte di Appello di Firenze, 27.12.2011,
De Zordo v. Soc. Quadrifoglio serv. ambientali area fiorentina,
Foro it., 2012, I, 1908, commented by Palmieri and De Santis

Consumer Law - Public Services

Services of the Municipality of Florence - Public services - Not admissible

2011

Trib. Torino, 31-10-2011, Callegari v. Soc. gruppo torinese trasp.,
Foro it., 2012, I, 1910, commented by Palmieri and De Santis

Consumer Law - Public Services

Public Services - Local transport

2011

Trib. Roma, 25-03-2011, Codacons v. Unicredit,
Foro it., 2011, I, 1889

Consumer Law - Banking services

Not applicable to facts before entering into force

2010

Corte di Appello di Torino Ordinanza, 27.10.2010

Consumer Law - Breach of contract

Consumer Contracts - Standing - Consumer associations

2010

Trib. Torino Ordinanza, 04.06.2010
Rienzi, Codacons v. Intesa Sanpaolo s.p.a.,
Giur. It., 2010, 12, 2601 commented by Ronco and Zuffi

Consumer Law - Banking services

Consumer Contracts - Standing - Consumer associations

2010

Trib. Torino Sez. I Ordinanza, 27.05. 2010,
Nuova Giur. Civ., 2010, 9, 1, 869 commented by Libertini and Maugeri

Consumer Law - Breach of contract

Consumer Contracts - Standing - Consumer associations

2010

Trib. Milano, 20.12.2010
Parti: Zacchei v. Soc. Voden Medical Instruments,
Foro it., 2011, I, 617
Resp. civ., 2011, 1096, commented by Gorgoni and Perago,
Nuova giur. civ., 2011, I, 502, commented by Libertini and Maugeri
Giur. it., 2011, 1860,
Giur. merito, 2011, 1789, commented by Gorgoni

Consumer Law - Defective products - Unfair commercial practices

Defective products - Distributor - Manufacturer - Pharmaceutical products

2009

C. Stato, sez. per gli atti normativi, 09.06.2009, n. 1943/09,
Foro amm.-Cons. Stato, 2009, 1587,
Giurisdiz. amm., 2009, I, 1010,
Foro it., 2010, III, 89, commented by Travi

Public Law - Collective action for the efficiency of the PA

Azione di classe - Collective action for the efficiency of the PA - Differences

B. Summaries of the main cases

Corte di Appello di Napoli, 18.02.2013, n. 2195

Keywords: Consumer Law, All-inclusive holiday package, Certification of "azione di classe"

On February 18, 2013, the first class action was upheld on the merits by the Court of Naples. This judgment concerned the claims brought by a group of tourists against a tour operator in respect of a purchased all-inclusive holiday package, according to which the plaintiffs were to spend a week in Zanzibar in a specific four-star resort. However, once on the island, the tourists were initially sent to a different hotel because the agreed hotel had not been fully restored. The new hotel was significantly less luxurious. Moreover, when the tourists were eventually transferred to the agreed hotel, they experienced further unexpected disadvantages, given that the pool and spa structures were not fit for use and the tourists could only use the hotel beach, which had not been decontaminated.

The court upheld the claims of the lead plaintiffs and part of the group, but rejected the claims of the remaining class members because their rights were not perfectly identical to those of the others. In this regard, the court had to apply the restrictive interpretation imposed by the 2009 version of the law; however, the same court declared in an obiter dictum that the new homogeneous rights concept introduced by the 2012 reform would improve the effectiveness of the class action tool applicable to future cases. Actually, the Italian Parliament passed the Law no. 27/2012. The reform provides that the rights actionable through class actions no longer need to be "identical" and it is now sufficient that they are "homogenous", aimed at fostering the effectiveness of this regime.

Tribunal of Milan, VIII Section, 13.03.2012, no. 98/2010, Codacons v. Voden Medical Instruments

Keywords: Consumer, Product Liability, Certification of the "azione di classe"

The lead plaintiff bought a test flue distributed by Voden Medical Instruments in reliance on the product's illustrative paper, which claimed that it could reveal, with almost no margin of error, the presence of any type of A flue. But after reading a press release published on the Voden web site, he discovered that the test could lead to false results. Consequently, he gave mandate to Codacons to file the azione di classe against Voden to seek reimbursement and damages. The consumer amended his complaint, complaining that the misleading content of the paper represented an unfair commercial practice. When successfully admitted, Codacons was ordered to publicize the decision on three of the largest Italian newspapers.

The defendant's appeal for lack of homogeneity between the interests of the plaintiff and those of the members of the class was rejected. The Court of Appeal of Milan held that the interests at issue were homogenous because they required the same solution to the same questions of fact and law. In particular, the consumers had concluded the same contract with the defendant in purchasing the test and were misled by the information contained in the illustrative paper of the product. Further, since Codacons was one of the biggest Italian consumer associations, it possessed adequate economical and organizational means to represent the class. The judge also did not find any conflict of interest and, thus, the case was admitted and remanded to the trial court to decide the merits of the case.

The Tribunal of Milan overruled the ordinances taken at the admissibility stage and held the lawsuit groundless and inadmissible. It explained that the lead plaintiff failed to prove consumer status and to show that the decision to purchase the test flue was based on the information it contained. Consequently, the court rejected the claim and asked the lead plaintiff to pay for the legal expenses. It also ordered the plaintiff to pay a compensatory damage to the defendant for a temerarious lawsuit. According to Art. 96 of the Italian Code of Civil Procedure, the judge can condemn the plaintiff, who began a "lite temeraria", to pay the defendant a penalty in the amount indicated by the judge.

This decision has raised several perplexities regarding the power of the courts of merit to overrule the decision taken at the admissibility level. It was also surprising that the plaintiff was nonetheless condemned to the payment of the legal expenses of the proceedings.

Tribunal of Naples, II Section, 16.11.2011, no. 9002/2011, Assoconsum v. Banca della Campania

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

This action was filed in the Court of Naples by the consumer association Assoconsum on behalf of two consumers who mandated it to act against the Banca della Campania. Assoconsum claimed that the lead plaintiffs held a bank account without line of credit on which the bank applied an overdraft fee that should have been considered void under Law 2/2009. The association also asked the court to declare these charges unlawful because they were imposed unilaterally in the contract by the defendant. Accordingly, the plaintiffs sought economic reimbursement and damages. The Court evaluated all the elements of admissibility of the action starting from the homogeneity requirement. They held that the class was homogenous, not only because the consumers possessed the same type of accounts, but because the fees at dispute have been applied to all of them. The Court considered the different amount of damages sought by each member of the class as irrelevant. The Court also asserted that Assoconsum could adequately represent the class since it was listed in the registry kept by the Ministry of Productive Actions as an association with power to represent consumers all over the country. Finally, since the defendant failed to prove the existence of any conflict of interest, the Tribunal of Naples admitted the action.

Court of Turin, I Section, 31.11.2011, no. 6078/11, Adoc v. Gruppo Torinese Trasporti

Keywords: Consumer, Transport Services, Certification of the "azione di classe"

This case involves a private and local train company, the Gruppo Torinese Trasporti. Two consumers using its transportation services filed the azione di classe, individually, through the consumer association Adoc. The plaintiffs claimed that the defendant breached the contract because the trains had not arrived or departed on time, the coaches did not possess the qualitative standards described in the company's chart of services, and they both considered the schedule and the chart misleading. Consequently, they sought monetary compensation for the trains' passes and non-monetary damages for breach of contract and unfair commercial practice.

First, the Tribunal of Turin analyzed the plaintiffs' standing to sue and concluded that the consumers and the Adoc could not simultaneously file the lawsuit. Therefore, the claimants decided not to take part directly in the proceeding and surrendered all their procedural powers to the association. Subsequently, the Court emphasized that the facts of the lawsuit were not homogenous since each consumer complained about damage suffered in different trips. Also, since a part of the alleged damages were non-economic and personal in nature, they needed to be evaluated on an individual basis. The plaintiffs tried to reply to these findings but the Court prevented them from doing so, worrying about the possible negative impact of a reply on the speed of the trial. Finally, the judges found the action groundless because, even if the service provided by the defendant did not possess the proper qualities, the Gruppo Torinese Trasporti nonetheless complied with his obligation by transporting the passengers to their respective destinations. Since there was neither a breach of contract nor unfair commercial practice, the Tribunal of Turin declared the action inadmissible and condemned Adoc to bear the expenses of the proceedings and the costs of the decisions publication. Adoc challenged the ordinance, but the Court of Appeal of Turin upheld the judgment although expressing a partial disagreement with the trial court's reasoning. First, the appellate body clarified that the rules of Art. 140-bis overrides the general rules of civil procedure with regard to parties' representation powers. In fact, the association receiving a mandate has a role of technical auxiliary of the consumer and does not interfere with the right at issue. Therefore, both the plaintiffs and Adoc should be recognized as having the right to participate in the proceedings. Second, the judges explained that the element of homogeneity should be evaluated on the sole basis of the commonality of the facts of the action, not on the remedy sought with the lawsuit (Court of Appeal of Turin, Adoc v. Gruppo Torinese Trasporti, Case no. 2246/2011. Decision issued on 11.01.2012).

Tribunal of Florence, II Section, 30.05.2011, Cittadini di Firenze v. Quadrifoglio

Keywords: Consumer, Taxpayer, Public Services, Certification of the "azione di classe"

This case was filed after an unusual snowstorm in the city of Florence, which caused serious problems to the city viability (pedestrians and automobiles) for several hours. A citizen filed the azione di classe on his interest and as representative of all the consumers damaged by the storm, against the cleaning company Quadrifoglio. Even though there was no direct contractual relationship, the plaintiff claimed that the defendant had breached its contract, and so sought reimbursement for the tax paid to Quadrifoglio for its services, and compensatory damages for moral distress. The company replied by stating that the interests of the class were not homogenous since they were claiming personal and non-economic damages; however, the Tribunal of Florence explained that the type and amount of remedies sought by the plaintiff were irrelevant. The Court declared the action inadmissible because the claims were groundless. The tax at issue, in fact, had not yet been collected at the time of the filing. Moreover, there was no direct contract between the consumers and the defendant, and so the lawsuit lacked any factual basis. Codacons challenged the ordinance but the Court of Appeal of Florence upheld the decision, explaining that the plaintiffs' obligations towards Quadrifoglio did not depend on a voluntary contract bargained with it, but from the law itself. The plaintiff was asked to bear the payment of the appeal expenses, and the legal expenses associated with the trial proceedings were apportioned between the parties (Court of Appeal of Florence, II Section, Cittadini di Firenze v. Quadrifoglio. Decision issued on 14.12.2011).

Tribunal of Turin, I, 24.04.2011, no. 31190/2010, Altronconsumo v. Banca Intesa San Paolo

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

The case was filed against the Banca Intesa San Paolo by three consumers on their own and through the association Altronconsumo. The plaintiffs claimed that the defendant obtained unlawful fees from their banking accounts and asked the court to declare void the contractual provisions imposing the charges. The Tribunal of Turin declared that, under the general rules of civil procedure, the association Altronconsumo and the consumers who gave the mandate could not simultaneously participate in the proceedings. Additionally, the court concluded that they could not adequately represent the interests of the class since there were only three plaintiffs. More specifically, the judges held that such an exiguous number of consumers could not possess the economic and organizational means necessary to bear the publication's costs of an ordinance admitting the action as well as the expenses of a possible merits stage. Consequently, the Tribunal of Turin declared the action inadmissible.

Altroconsumo challenged the decision. The appellate court reversed it on several grounds. Examining all the elements needed to admit the class, the Court stated that Altroconsumo and the plaintiffs had the power to file the lawsuit jointly and that the association did possess economic means to represent the class. On this issue, the fact that Altroconsumo was registered in the directory kept by the Ministry of Productive Actions greatly influenced the Court. Consequently, the appellate judges declared the action admissible for the actions occurred after Art. 140-bis came into force, and ordered the proceeding of the case in the trial court for the merits stage. The defendant was asked to pay for the legal expenses (Decision issued on 23.09. 2011).

Court of Appeal of Rome, 27.01.2012, Codacons v. British American Tobacco

Keywords: Consumer, Tobacco Litigation, Certification of the "azione di classe"

This is the first and only case of tobacco mass litigation in Italy. The lawsuit was filed by Codacons, one of the biggest Italian consumer associations, in its own name and as the representative of several consumers who claimed that the nicotine contained in the cigarettes sold by the American British Tobacco Italia (BAT) was at such a high level it caused addiction. Accordingly, the plaintiffs sought compensation for the costs of the cigarettes purchased under this dependence and for damages caused to their health by the nicotine. However, the defendant replied that the alleged facts occurred before Art. 140-bis came into force, thus no azione di classe could be filed, and that, in any case, the rights at issue were not homogeneous. The Tribunal of Rome partially agreed with BAT and held that the lawsuit was valid only for those misconducts occurred after Art. 140-bis came into force. It then examined the grounds of the case in order to discover if there was sufficient legal basis to assume that the plaintiff's right existed.

However, the Court believed that the action was groundless because every smoker was fully aware of the risks connected to the consumption of cigarettes, and the damages were consequences by their free will, rather than the addiction caused by nicotine. Moreover, the judges explained that Codacons did not have the power to file the action on its own initiative under Art. 140-bis.

Finally, the Court declared that a collective protection could be granted whenever the judge's evaluation could focus on finding a solution to the same questions of law and facts (homogenous rights). Nonetheless, since every consumer had his own smoking "history" and has been affected differently by the nicotine, the Tribunal of Rome held that the class was not homogenous and declared the class inadmissible. Codacons challenged the ordinance in the Court of Appeal of Rome. The appellate court accepted the reasoning of the trial court and affirmed the decision (Decision of Appeal issued in January 27.01.2012).

Tribunal of Rome, VIII Section, 25.03.2011, no. 50497/2010, Codacons v. Banca Unicredit

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

Codacons filed an action against the Banca Unicredit on behalf of its president who wanted to represent every consumer holding a checking account without line of credit. The lead plaintiff sought compensation for the fees paid because of an allegedly unfair commercial practice perpetrated by the bank. For the same reason, he asked the Regional Tribunal of Rome to declare null and void the contractual provisions imposing the charges at dispute. Codacons, at the same time, filed a motion for the consolidation of this action with a similar lawsuit previously filed against Unicredit on behalf of its president. In the latter case, however, the plaintiff's claim was based on the possession of an account with line of credit on which the bank allegedly applied unlawful fees for immediate availability of cash advances. The Court decided that the two proceedings could not be consolidated because they were based on different sets of facts. More specifically, the actions were related to different types of accounts and the plaintiff claimed the application of two different fees in one case and in the other.

When explaining the meaning of the "identity" requirement in the original version of Art. 140-bis, the Court held that the facts and the type of remedy sought in the lawsuit should be the same for every member of the class. The Court declared that the rights of the lead plaintiff were homogenous to those of the class. Nonetheless, not all the fees at dispute were applied to the plaintiffs' accounts; therefore, the lawsuit was partially groundless. Finally, since the fees were written into the contract before Art.140-bis came into force, the judges declared the actions inadmissible and split the legal expenses among the parties by applying art. 92 of the Italian Code of Civil Procedure. Accordingly, every party will pay the legal fees of their own lawyer.

Tribunal of Turin, 04.03.2011, no. 21733/2010, Adoc v. Banca Popolare di Novara

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

Adoc, one of the biggest Italian consumer associations, filed an action on behalf of its own members and of a consumer who gave it a mandate against the Banca Popolare di Novara. The association claimed that the defendant unlawfully applied on the plaintiffs' checking accounts without line of credit, an overdraft fee that was declared invalid by Law n. 2/2009. At the first hearing, the Tribunal of Turin explained that Adoc could not autonomously decide to act on behalf of its members but it could still represent the consumer who gave it the mandate.

The Court held that Art. 140-bis recognizes the power to act on behalf of the consumers if they provided it a specific mandate to do so. Therefore, the rule does not give the consumer association the autonomous and substantial right to file the azione di classe to protect its own interests or the interests of one of its members.

However, according to the Court, the plaintiff did not meet the "adequacy" standard imposed by Art. 140-bis since he failed to show that he could bear the proceedings' expenses and the publicity costs of a possible favourable ordinance. Consequently, the judges denied the actions' admission and dismissed the case.

Tribunal of Turin, I Section, 27.05.2011, no. 29/2010, Codacons v. Banca Intesa San Paolo

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

The consumer association Codacons received a mandate by the president of the association to file an action against the Banca Intesa San Paolo on his behalf and as the representative of every consumer with a checking account of the bank. The action was based on the assumption that the bank charged accounts, with and without line of credit, fees that deemed unlawful by Law 2/2009. The lead plaintiff sought economic reimbursement and asked the court to declare void those contractual provisions imposing the charges in dispute.

The defendant argued that the plaintiff could not act as the representative of the class because he only possessed one of the two accounts on which the claim was based. Agreeing with the Bank's argument, the Court explained that the lead plaintiff is required to possess all of the rights on which the lawsuit was based. Furthermore, in case of the azione di classe the interest of the lead plaintiff must be identical to those of the class because he is the only person who actively participates in the proceedings while the consumers, who will join the class, will not possess such procedural power. Consequently, the Court held that the president of Codacons could only represent those consumers holding the same type of account as his account. Besides the lack of standing under Art. 140 bis, the plaintiff also lacked a general interest to file the claim under Art. 100 of the Italian Code of Civil Procedure because the fees at dispute did not apply to his account, therefore he suffered no damage. Since the plaintiff had no interest in filing the claim and had no grounds to do that, the Tribunal of Turin held the action inadmissible, allocated the expenses among the parties, and ordered the plaintiff to publicize the decision on the newspaper. Codacons challenged the ordinance in the Court of Appeal of Turin. The appellate court upheld the decision of the trial court and explained that a declaratory remedy, like the nullity of contractual provisions, can never be obtained through the azione di classe, whose sole aim is to ensure economic compensation.

Other relevant case law

1. Competition law

A. Table

Year

Court

Subject

Keywords

2012

Trib. Milano, 13.03.2012, Codacons v. Soc. Voden Medical Instruments,
Foro it., 2012, I, 1909, commented by Palmieri and De Sanctis

Consumer Law - Defective products - Unfair commercial practices

Defective products - Distributor - Manufacturer - Pharmaceutical products

B. Summary

Tribunal of Milan, VIII Section, 13.03.2012, no. 98/2010, Codacons v. Voden Medical Instruments

Keywords: Consumer, Product Liability, Certification of the "azione di classe"

The lead plaintiff bought a test flue distributed by Voden Medical Instruments in reliance of the product's illustrative paper, which claimed that it could reveal, with almost no margin of error, the presence of any type of A flue. But after reading a press release published on the Voden web site, he discovered that the test could lead to false results. Consequently, he gave mandate to Codacons to file the azione di classe against Voden to seek reimbursement and damages. The consumer amended his complaint, complaining that the misleading content of the paper represented an unfair commercial practice. When successfully admitted, Codacons was ordered to publicize the decision on three of the largest Italian newspapers.

The defendant's appeal for lack of homogeneity between the interests of the plaintiff and those of the members of the class was rejected. The Court of Appeal of Milan held that the interests at issue were homogenous because they required the same solution to the same questions of fact and law. In particular, the consumers had concluded the same contract with the defendant in purchasing the test and were misled by the information contained in the illustrative paper of the product. Further, since Codacons was one of the biggest Italian consumer associations, it possessed adequate economical and organizational means to represent the class. The judge also did not find any conflict of interest and, thus, the case was admitted and remanded to the trial court to decide the merits of the case.

The Tribunal of Milan overruled the ordinances taken at the admissibility stage and held the lawsuit groundless and inadmissible. It explained that the lead plaintiff failed to prove consumer status and to show that the decision to purchase the test flue was based on the information it contained. Consequently, the court rejected the claim and asked the lead plaintiff to pay for the legal expenses. It also ordered the plaintiff to pay compensatory damages to the defendant for a temerarious lawsuit. According to Art. 96 of the Italian Code of Civil Procedure, the judge can condemn the plaintiff, who began a "lite temeraria", to pay the defendant a penalty in the amount indicated by the judge.

This decision has raised several perplexities regarding the power of the courts of merit to overrule the decision taken at the admissibility level. It was also surprising that the plaintiff was nonetheless condemned to the payment of the legal expenses of the proceedings.

2. Financial market law

A. Table

Year

Court

Subject

Keywords

2012

Cass. civ., sez. I, 14.06.2012, n. 9772,
Codacons v. Intesa Sanpaolo,
Foro it., 2012, I, 2304, commented by De Santis,
Giust. civ., 2012, I, 1667

Consumer Law - Banking services

Consumer association - Standing - Procedural issues

2012

Corte di Appello di Napoli, 29.06.2012, Banca Campania v. Assoconsum Onlus,
Foro it., 2013, I, 342

Consumer Law - Banking services

Consumer association - Standing - Public register of consumer associations - Adequacy of representation

2011

Trib. Torino, 07.04.2011,
De Francesco v. Banca pop. Novara,
Nuovo notiziario giur., 2011, 109, commented by Zuccarello,
Corriere giur., 2011, 1108, commented by Marinucci,
Giur. merito, 2012, 367, commented by Fiorio

Consumer Law - Banking services

Consumer Law - Banking services

2011

Corte di Appello di Torino, 23.09.2011.
Altroconsumo
v. Intesa SanPaolo
Danno e resp., 2012, 1236, commented by Frata

Consumer Law - Banking services

Consumer Law - Banking services

2011

Trib. Roma, 25.03.2011, Codacons c. Unicredit,
Foro it., 2011, I, 1889

Consumer Law - Banking services

Not applicable to facts before entering into force

2010

Trib. Torino Ordinanza, 04.06.2010
Rienzi, Codacons v. Intesa Sanpaolo s.p.a.,
Giur. It., 2010, 12, 2601 commented by Ronco and Zuffi

Consumer Law - Banking services

Consumer Contracts - Standing - Consumer associations

B. Summaries

Tribunal of Naples, II Section, 16.11.2011, no. 9002/2011, Assoconsum v. Banca della Campania

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

This action was filed in the Court of Naples by the consumer association Assoconsum on behalf of two consumers who mandated it to act against the Banca della Campania. Assoconsum claimed that the lead plaintiffs held a bank account without line of credit, on which the bank applied an overdraft fee that should have been considered void under Law 2/2009. The association also asked the court to declare these charges unlawful because they were imposed unilaterally in the contract by the defendant. Accordingly, the plaintiffs sought economic reimbursement and damages. The Court evaluated all the elements of admissibility of the action starting with the homogeneity requirement. They held that the class was homogenous, not only because the consumers possessed the same type of accounts, but because the fees at dispute had been applied to all of them. The Court considered the different amount of damages sought by each member of the class as irrelevant. The Court also asserted that Assoconsum could adequately represent the class since it was listed in the register kept by the Ministry of Productive Actions as an association with power to represent consumers all over the country. Finally, since the defendant failed to prove the existence of any conflict of interest, the Tribunal of Naples admitted the action.

Tribunal of Turin, I, 24.04.2011, no. 31190/2010, Altronconsumo v. Banca Intesa San Paolo

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

The case was filed against the Banca Intesa San Paolo by three consumers on their own and through the association Altronconsumo. The plaintiffs claimed that the defendant obtained unlawful fees from their banking accounts and asked the court to declare void the contractual provisions imposing the charges. The Tribunal of Turin declared that, under the general rules of civil procedure, the association Altronconsumo and the consumers who gave the mandate could not simultaneously participate in the proceedings. Additionally, the court concluded that they could not adequately represent the interests of the class since there were only three plaintiffs. More specifically, the judges held that such an exiguous number of consumers could not possess the economic and organizational means necessary to bear the publication's costs of an ordinance admitting the action as well as the expenses of a possible merits stage. Consequently, the Tribunal of Turin declared the action inadmissible.

Altroconsumo challenged the decision. The appellate court reversed it on several grounds. Examining all the elements needed to admit the class, the Court stated that Altroconsumo and the plaintiffs had the power to file the lawsuit jointly and that the association did possess economic means to represent the class. On this issue, the fact that Altroconsumo was registered in the directory kept by the Ministry of Productive Actions greatly influenced the Court. Consequently, the appellate judges declared the action admissible for the actions occurred after Art. 140-bis came into force, and ordered the proceeding of the case in the trial court for the merits stage. The defendant was asked to pay for the legal expense (Decision issued on 23.09. 2011).

Tribunal of Rome, VIII Section, 25.03.2011, no. 50497/2010, Codacons v. Banca Unicredit

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

Codacons filed an action against the Banca Unicredit on behalf of its president who wanted to represent every consumer holding a checking account without line of credit. The lead plaintiff sought compensation for the fees paid as a consequence of an allegedly unfair commercial practice perpetrated by the bank. For the same reason, he asked the Regional Tribunal of Rome to declare null and void the contractual provisions imposing the charges in dispute. Codacons, at the same time, filed a motion for the consolidation of this action with a similar lawsuit previously filed against Unicredit. In the latter case, however, the plaintiff's claim was based on the possession of an account with line of credit on which the bank allegedly applied unlawful fees for immediate availability of cash advances. The Court decided that the two proceedings could not be consolidated because they were based on different sets of facts. More specifically, the actions were related to different types of accounts and the plaintiff claimed the application of two different fees in one case and in the other.

When explaining the meaning of the "identity" requirement in the original version of Art. 140-bis, the Court held that the facts and the type of remedy sought in the lawsuit should be the same for every member of the class. The Court declared that the rights of the lead plaintiff were homogenous to those of the class. Nonetheless, not all the fees at dispute were applied to the plaintiffs' accounts; therefore, the lawsuit was partially groundless. Finally, since the fees were written into the contract before Art.140-bis came into force, the judges declared the actions inadmissible and split the legal expenses among the parties by applying art. 92 of the Italian Code of Civil Procedure. Accordingly, every party will pay the legal fees of their own lawyer.

Tribunal of Turin, 04.03.2011, no. 21733/2010, Adoc v. Banca Popolare di Novara

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

Adoc, one of the biggest Italian consumer associations, filed an action on behalf of its own members and of a consumer who gave it a mandate against the Banca Popolare di Novara. The association claimed that the defendant unlawfully applied on the plaintiffs' checking accounts without line of credit an overdraft fee that was declared invalid by Law n. 2/2009. At the first hearing, the Tribunal of Turin explained that Adoc could not autonomously decide to act on behalf of its members but it could still represent the consumer who gave it the mandate.

The Court held that Art. 140-bis recognizes the power to act on behalf of the consumers if they provided it a specific mandate to do so. Therefore, the rule does not give a consumer association the autonomous and substantial right to file the azione di classe to protect its own interests or the one of its members.

However, according to the Court, the plaintiff did not meet the "adequacy" standard imposed by Art. 140-bis since he failed to show that he could bear the proceedings' expenses and the publicity costs of a possible favourable ordinance. Consequently, the judges denied the actions' admission and dismissed the case.

Tribunal of Turin, I Section, 27.05.2011, no. 29/2010, Codacons v. Banca Intesa San Paolo

Keywords: Consumer, Investor, Banking, Certification of the "azione di classe"

The consumer association Codacons received a mandate by the president of the association to file an action against the Banca Intesa San Paolo on his behalf and as the representative of every consumer with a checking account of the bank. The action was based on the assumption that the bank charged accounts, with and without line of credit, fees that deemed unlawful by Law 2/2009. The lead plaintiff sought economic reimbursement and asked the court to declare void those contractual provisions imposing the charges at dispute.

The defendant argued that the plaintiff could not act as the representative of the class because he only possessed one of the two accounts on which the claim was based. Agreeing with the Bank's argument, the Court explained that the lead plaintiff is required to possess all of the rights on which the lawsuit is based. Furthermore, in case of the azione di classe the interest of the lead plaintiff must be identical to those of the class because he is the only person who actively participates in the proceedings while the consumers, who will join the class, will not possess such procedural power. Consequently, the Court held that the president of Codacons could only represent those consumers holding the same type of account as his account. Besides the lack of standing under Art. 140 bis, the plaintiff also lacked a general interest to file the claim under Art. 100 of the Italian Code of Civil Procedure because the fees at dispute did not apply to his account, therefore he had suffered no damage. Since the plaintiff had no interest in filing the claim and had no grounds to do that, the Tribunal of Turin held the action inadmissible, allocated the expenses among the parties, and ordered the plaintiff to publicize the decision on the newspaper. Codacons challenged the ordinance in the Court of Appeal of Turin. The appellate court upheld the decision of the trial court and explained that a declaratory remedy, like the nullity of contractual provisions, can never be obtained through the azione di classe, whose sole aim is to ensure economic compensation.

3. Product liability law

A. Table

Year

Court

Subject

Keywords

2012

Corte di Appello di Roma, 27.01.2012
Codacons c. Soc. Bat Italia,
Foro it., 2012, I, 1908, commented by Palmieri

Consumer Law - Tobacco Litigation

Consumer Law - Tobacco - Entering into force of the azione di classe

2010

Trib. Milano, 20.12.2010,
Zacchei c. Soc. Voden Medical Instruments,
Foro it., 2011, I, 617
Resp. civ., 2011, 1096, commented by Gorgoni and Perago,
Nuova giur. civ., 2011, I, 502, commented by Libertini and Maugeri
Giur. it., 2011, 1860,
Giur. merito, 2011, 1789, commented by Gorgoni

Consumer Law - Defective products - Unfair commercial practices

Defective products - Distributor - Manufacturer - Pharmaceutical products

B. Summaries

START-SUB-HEADING)Court of Appeal of Rome, 27.01.2012, Codacons v. British American Tobacco(END-SUB-HEADING)

Keywords: Consumer, Tobacco Litigation, Certification of the "azione di classe"

This is the first and only case of tobacco mass litigation in Italy. The lawsuit was filed by Codacons, one of the biggest Italian consumer associations, in its own name and as the representative of several consumers who claimed that the nicotine contained in the cigarettes sold by the American British Tobacco Italia (BAT) was at such a high level it caused addiction. Accordingly, the plaintiffs sought compensation for the costs of the cigarettes purchased under this dependence and for damages caused to their health by the nicotine. However, the defendant replied that the alleged facts occurred before Art. 140-bis came into force, thus no azione di classe could be filed, and that, in any case, the rights at issue were not homogeneous. The Tribunal of Rome partially agreed with BAT and held that the lawsuit was valid only for those misconducts occurred after Art. 140-bis came into force. It then examined the grounds of the case in order to discover if there was sufficient legal basis to assume that the plaintiff's right existed.

However, the Court believed that the action was groundless because every smoker was fully aware of the risks connected to the consumption of cigarettes, and the damages were consequences by their free will, rather than the addiction caused by nicotine. Moreover, the judges explained that Codacons did not have the power to file the action on its own initiative under Art. 140-bis.

Finally, the Court declared that collective protection could be granted whenever the judge's evaluation could focus on finding a solution to the same questions of law and facts (homogenous rights). Nonetheless, since every consumer had his own smoking "history" and has been affected differently by the nicotine, the Tribunal of Rome held that the class was not homogenous and declared the class inadmissible. Codacons challenged the ordinance in the Court of Appeal of Rome. The appellate court accepted the reasoning of the trial court and affirmed the decision (Decision of Appeal issued in January 27.01.2012).

Tribunal of Milan, VIII Section, 13.03.2012, no. 98/2010, Codacons v. Voden Medical Instruments

Keywords: Consumer, Product Liability, Certification of the "azione di classe"

The lead plaintiff bought a test flue distributed by Voden Medical Instruments in reliance of the product's illustrative paper, which claimed that it could reveal, with almost no margin of error, the presence of any type of A flue. But after reading a press release published on the Voden web site, he discovered that the test could lead to false results. Consequently, he gave mandate to Codacons to file the azione di classe against Voden to seek reimbursement and damages. The consumer amended his claim, complaining that the misleading content of the paper represented an unfair commercial practice. When successfully admitted, Codacons was ordered to publicize the decision in three of the largest Italian newspapers.

The defendant appeal for lack of homogeneity between the interests of the plaintiff and those of the members of the class was rejected. The Court of Appeal of Milan held that the interests at issue were homogenous because they required the same solution to the same questions of fact and law. In particular, the consumers had concluded the same contract with the defendant in purchasing the test and were misled by the information contained in the illustrative paper of the product. Further, since Codacons was one of the biggest Italian consumer associations, it possesses adequate economical and organizational means to represent the class. The judge also did not found any conflict of interest and, thus, the case was admitted and remanded to the trial court to decide the merits of the case.

The Tribunal of Milan overruled the ordinances taken at the admissibility stage and held the lawsuit groundless and inadmissible. It explained that the lead plaintiff failed to prove consumer status and to show that the decision to purchase the test flue was based on the information it contained. Consequently, the court rejected the claim and asked the lead plaintiff to pay for the legal expenses. It also ordered the plaintiff to pay compensatory damages to the defendant for a temerarious lawsuit. According to Art. 96 of the Italian Code of Civil Procedure, the judge can condemn the plaintiff, who began a "lite temeraria", to pay the defendant a penalty in the amount indicated by the judge.

This decision has raised several perplexities regarding the power of the courts of merit to overrule the decision taken at the admissibility level. It was also surprising that the plaintiff was nonetheless condemned to the payment of the legal expenses of the proceedings.

4. Public services

A. Table

Year

Court

Subject

Keywords

2012

Trib. Roma, 27.04.2012
Parti: Codacons c. Univ. Cattolica Sacro Cuore,
Nuova giur. civ., 2012, I, 903, commented by Libertini and Maugeri

Consumer Law - Public Health Services

Azione di classe
Definition of business for the purposes of the azione di classe - Italian National Public Health Service - Standing

2011

Corte di Appello di Firenze, 27.12.2011,
De Zordo c. Soc. Quadrifoglio serv. ambientali area fiorentina,
Foro it., 2012, I, 1908, commented by Palmieri and De Santis

Consumer Law - Public Services

Azione di classe - Services of the Municipality of Florence - Public services - Not admissible

2011

Trib. Torino, 31.10.2011, Callegari c. Soc. gruppo torinese trasp.,
Foro it., 2012, I, 1910, commented by Palmieri and De Santis

Consumer Law - Public Services

Azione di classe - Public Services - Local transport

2011

C .Stato , section VI, 09.06.2011, n. 3512

Consumer Law - Public Services

Collective action for the efficiency of the PA

2011

T.A.R. Basilicata - Potenza, Section I, 23.09.2011, n. 478

Consumer Law - Public Services

Collective action for the efficiency of the PA

2009

C. Stato, sez. per gli atti normativi, 09.06.2009, n. 1943/09,
Foro amm.-Cons. Stato, 2009, 1587,
Giurisdiz. amm., 2009, I, 1010,
Foro it., 2010, III, 89, commented by Travi

Consumer Law - Public Services

Collective action for the efficiency of the PA - Differences

B. Summaries

Of particular importance are the following judgments:

Council of State, Section VI, 09.06.2011 n0. 3512, confirming the decision n. 552

Keywords: Collective action for the efficiency of the PA - Public education - Classrooms

With this pronunciation, nicknamed by the news "sentence on the hen-pen classes", the Coordination of Associations for the Defence of the Environment and Consumers Rights (Codacons) was right to act against the Ministry of Education, University and Scientific Research (also, "MIUR") and the Ministry of Economy and Finance (also, "MEF"), for not carrying out the necessary administrative actions to resolve the overcrowding in school classrooms. The judges had verified the breach of the MIUR and the MEF for not having drawn-up the general plan of school constructions, as envisaged in article 3 of the DPR n. 81 of march 20th 2009, ordering the two Ministries, to issue the aforesaid plan within, and not over, 120 days from the communication, or notification, of the sentence. Moreover, both the TAR Lazio, before, and the State Council, accordingly, have welcomed the motivations of the Codacons, believing that "(...) direct, concrete and immediate damage of their own interests" resulting "from the violation of terms or from the absent issuing of obligatory general administrative acts and not having normative content to obligatorily issue within and not over a deadline set by a law or regulation".

T.A.R. Basilicata, Potenza, Section I, 23.09.2011, no. 478

Keywords: Collective action for the efficiency of the PA, Certified E-mail

The ruling originated from the collective action filed by the Italian Radicals political party and from an association called Digital Agorà to censor the passive behaviour of the Basilicata Region (the "Region") for not publishing on its website the address of the administration through certified mail (hereinafter "PEC"), as provided by article 54, paragraph 2-ter, Decree No. 82 of March 7th, 2005 ("Digital Administration Code" also "C.A.D."), despite warnings aimed at guaranteeing the possibility for users to communicate with the PEC. The Court condemned the Region to publish the request of the claimants, thus making effective the right of its users to communicate by the information medium earlier mentioned. The previously mentioned sentence has defined better the concept of standing to act against the P.A., by introducing a distinction between the case where individual citizens establish the action and that in which the same one is filed by the associations. The TAR stated that if the claimants are individual citizens, they should limit their case to proving injury suffered, in practice or potentially by the P.A., with respect to their own specific personal interest and in relation to those of a certain class of users or consumers. Conversely, if an association initiates collective action, it is necessary to carry out an assessment on the degree of representativeness of the legal entity and of its statutory purposes. In other words, the legitimation of the Associations recognized or not, should always be verified in relation to the nature and type of the interest that has been damaged, to determine whether the claimant is empowered to the protection of the specific interest that he intends to protect. In this case, the TAR confirmed the standing of the Association Agorà Digitale that was representing the specific interest damaged by the inefficiency of the Region.

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