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Author: Eleonora Rajneri/ Cristina Poncibò

V. Legislation

A. General

Before the introduction of the new azione di classe, forms of collective action already existed in Italy with respect to consumer rights and labour law, but were limited to injunctive relief (they did not contemplate damages). Debates about the enactment of a means of collective redress in the Italian legal system had been going on for years. The Cirio, Parmalat, and other financial scandals in which many small investors lost substantial amounts of money catalyzed such debates. A new article was added in 2009 to the Consumer Code, article 140-bis, introducing the azione di classe.

B. Sectoral

1. Consumer Law

Art 140-bis (Azione di classe) of the Legislative Decree 6 September 2005 n. 206 (Consumer Code) states:

1. The homogeneous individual rights of consumers and users - as set forth in paragraph 2 - can be enforced through the azione di classe as provided for by this article. To this end, each class member can individually, or through the associations to which he/she grants power, or the committees in which he/she participates take action to assess liability and claim an order for payment of damages and repayments.

2. The action enforces:

a) contractual rights of a number of consumers and users who find themselves in a homogeneous situation in relation to the same company, including the rights relating to contracts underwritten in accordance with Articles 1341 and 1342 of the Civil Code concerning standard contracts;

b) homogeneous final consumers' rights concerning a given product in relation to its manufacturer, even in the absence of a direct contractual relationship;

c) homogeneous rights to the payment of damages due to these consumers and users and deriving from unfair commercial practices or anti-competitive behaviours.

3. Consumers and users who wish to avail of the azione di classe referred to in this Article can join the action without a counsel for the defence, which can be certified by e-mail or fax. Joining the action entails discontinuation of any individual restitutory action or action for damages based on the same title, except for terms indicated in paragraph 15. An adhesion contract shall indicate both the address for service and the constitutive elements of the asserted right, with its probative documentation. The claimant shall then lodge this contract at the registry by the date referred to in paragraph 9, letter b). According to articles 2943 and 2945 of the Civil Code, the prescription shall take effect on the date of service of the request and, for those who joined later, after lodgement of said adhesion contract.

4. The claim is submitted to the Court located in the capital of the Region in which the company is based; however, the courts of Turin have jurisdiction over the Region of Valle d'Aosta, the Courts of Venice over the Regions of Trentino-Alto Adige and Friuli-Venezia Giulia, and the Courts of Rome over the Marche, Umbria, Abruzzo and Molise, and the Courts of Naples over Basilicata and Calabria. The courts handle the lawsuit as a unified bench.

5. The claim is put forward with a writ of summons and notified to the office of the public prosecutor at the Court in charge, who may only intervene on the judgment on admissibility.

6. Upon first hearing, the Court shall decide by order, the admissibility of the claim. However, the court may suspend the judgment when there is an on-going investigation before an independent authority on the facts relevant to the decision, or a trial before an administrative judge. The claim shall be declared inadmissible if it is clearly ungrounded, there is a conflict of interest, the judge does not recognise the homogeneity of the individual rights which are enforceable according to paragraph 2 or if the proposing party seems incapable of adequately protecting the class's interests.

7. An appeal can be lodged against the order that determines the admissibility of the action before the Court of Appeal in the peremptory time limit of thirty days from either its disclosure or notification; whichever occurs first. The Court of Appeal decides, in a closed session, on the claim by an order no later than forty days from the lodgement of the appeal. The appeal to the Court order does not suspend the proceeding before the Tribunal.

8. In the event of an inadmissibility order, the judge settles the expenses according to Article 96 of the Code of Civil Procedure, and orders the most appropriate form of public notice, again at the expense of the unsuccessful party.

9. In the event of an admissibility order, the Tribunal sets the terms and the most appropriate forms of notices to the public, so that those belonging to the class can join promptly. Public notification is a condition for the prosecution of the claim. By the same order the Tribunal shall:

a) determine the characteristics of the individual rights involved in the action, specifying the criteria according to which the individuals seeking to join are included in the class or must be regarded as excluded from the azione di classe;

b) establish a peremptory time limit that does not exceed one hundred and twenty days from the deadline for the public notification. By this date, the claimant shall lodge the adhesion contracts at the registry. A copy of the order is sent by the registry to the Ministry of Economic Development, which is in charge of further publication, including on its website.

10. The intervention of a third party under Article 105 of the Code of Civil Procedure is excluded.

11. In the admissibility order, the Tribunal also determines the course of the procedure. In accordance with the principle of 'audi alteram partem', the fair, effective and prompt handling of the trial is ensured. In the same or subsequent order, which can be modified or revoked at any time, the Tribunal shall prescribe measures aimed at preventing undue repetitions or complications in the presentation of evidence or arguments. It burdens the parties to proceed to the forms of public notice it considers necessary to protect the members of the class; it regulates the preliminary investigation in the manner that it deems appropriate and disciplines any other procedural matter, except for any formality, which is not essential to the debate.

12. If the Tribunal grants the claim, it shall issue a judgment by which - according to Article 1226 of the Civil Code - the final amounts due to those who have joined the act, or it shall establish the homogeneous calculation criterion to pay these sums. In this case, the court assigns to the parties a period of not more than 90 days to agree on the liquidation of the damages. The minutes of the agreement, undersigned by the parties and the judge, is immediately enforceable. If the parties have not reached such agreement within 90 days, the judge, upon the request of at least one of the parties, liquidates the damages due to each member of the class. If the azione di classe concerns public services, the Tribunal takes into consideration the damages already awarded to the consumers according to the Charters of public services. The judgment becomes enforceable one hundred and eighty days from publication. Payments of the amounts due, which are issued during that period, are exempt from any right or increase, even as regards the interests of the law accrued after publication of the judgment.

13. As required by the provisions of Article 283 of the Code of Civil Procedure, the court of appeal shall take into account the total amount of the sum owed by the debtor, the number of creditors, and the related difficulties in returning undue payments if the appeal is accepted. Until judgment becomes final, the court may order that the total sum owed by the debtor should be lodged and remain bound in the manner deemed most appropriate.

14. The ruling establishes that the trial is also binding upon its members. It is made without any prejudice to the single action of those individuals who do not join collective action. No further azione di classe can be put forward dealing with the same facts and against the same company after the closing date for joining assigned by the judge under paragraph 9. Those proposals that are filed within the said deadline are automatically joined if pending before the same court; alternatively, the judge, who is next in charge, is able to order the removal of the lawsuit from the register, issuing a peremptory time limit, not exceeding sixty days, for readmission before the first judge.

15. Cancellations and transactions, which occurred between the parties, shall not affect the rights of the members who have not expressly agreed to them. These rights are reserved even in the case of extinguishment of the judgment or early conclusion of the trial.

2. Competition Law

Art. 140-bis of the Italian Consumer Code establishes that consumers with homogenous interests have the right to file the azione di classe against a private corporation with respect to unfair or anticompetitive commercial practices.

3. Financial Market Law

Art. 140-bis of the Italian Consumer Code establishes that consumers with homogenous interests have the right to file the azione di classe against a private corporation in three different cases, including breach of contracts concerning financial and banking services. Thus, please refer to the details provided under section Consumer Law.

4. Product Liability

Art. 140-bis of the Italian Consumer Code establishes that consumers with homogenous interests have the right to file the azione di classe against a private corporation in three different cases, including product liability. Accordingly, please refer to the details provided under section VI. Consumer Law.

5. Other areas: Public administration

Legislative Decree of 20 December 2009 no. 198 was issued to implement the legislative delegation contained in Law No.15 of 4 March 2009, which introduced a collective action against the inefficiencies of the public administration.