Italy
Implementation of the European Directive on representative actions
Which national regulations transpose the Directive into national law?
The Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (the “Directive”) was implemented in Italy by Legislative Decree no. 28 of 10 March 2023 (the “Decree”). The Decree added twelve new articles (Articles 140-ter to 140-quaterdecies) to Legislative Decree no. 206 of 6 September 2005 (the “Consumer Code”).
The new provisions are applicable from 25 June 2023.
The new provisions are in addition to those provided for in Law no. 31 of 12 April 2019, which introduced into the Code of Civil Procedure a new discipline on class action (Articles 840-bis to 840-sexiesdecies) and entered into force on 19 May 2020 (the “Class Action”).
Who is entitled to bring a representative action?
The representative action can be either domestic or cross-border.
The domestic representative action may be brought before an Italian court by either (ii) an association of consumers or users included in the list referred to in Article 137 of the Consumer Code or (ii) national independent public bodies.
The cross-border representative action may be brought either (i) before an Italian court by one or more qualified entities of other EU Member States and included in the list referred to in Article 5(1)(2) of the Directive, or (ii) in another EU Member State by a qualified entity registered in the special section of the list referred to in Article 137 of the Consumer Code, also jointly with qualified entities of other EU Member States.
The action is brought against professionals, i.e., any natural or legal person, public or private, acting for purposes relating to their trade, business, craft or profession and may be commenced by filing a recourse without any specific power of representation being granted by the consumers concerned.
What can be the subject matter of a representative action?
The representative actions may be brought against infringements by professionals of the provisions of Union law listed in annex II-septies of the Decree, that reflects the provisions of Union law listed in Annex I of the Directive, as transposed into national law, that harm or may harm the collective interests of consumers.
Which individual consumers are represented in a representative action?
Individual consumers are entitled to participate in a representative action aimed at obtaining redress measures, through an opt-in model as that provided for in the Class Action.
What will be the outcome of a representative action?
The representative action may be brought to seek redress measures, i.e., to provide the consumers concerned with remedies such as compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate and as available under Union or national law.
The representative action may also be brought to seek injunctive measures in the form of measures to cease a practice or to prohibit a practice, where that practice has been deemed to constitute an infringement to the law provisions listed in annex II-septies of the Decree.
Until the oral discussion of the case, the parties may jointly file with the court a settlement proposal, or the court may invite the parties to reach a settlement. The court shall verify that the settlement proposal does not conflict with mandatory rules and does not contain unenforceable clauses or obligations taking into account the rights and interests of all parties and, in particular, those of the consumers concerned. Approved settlements shall be binding upon the parties.
Are there particular rules for the disclosure of evidence?
The rules for the disclosure of evidence in the representative actions are those provided for the Class Action (Article 840-quinquies of the Code of Civil Procedure).
In particular, upon a reasoned request by the claimant, containing facts and evidence reasonably available to the other party sufficient to support the reasonableness of the claim, the court may order the respondent to disclose relevant evidence available to it.
The court shall specifically and in a restricted manner identify the evidence or relevant categories of evidence covered by the request or order for disclosure.
The court shall order the disclosure to the extent that it is proportionate to the decision, and in particular shall consider (i) the extent to which the request is supported by available facts and evidence justifying the order to produce it, (ii) the relevant scope and costs, (iii) whether the evidence whose disclosure is requested contains confidential information. Where the request relates to confidential information, the court may order specific measures of protection.
The party against whom the request for disclosure is addressed has the right to be heard before the court takes action.
The confidentiality of communications between the lawyers appointed to assist the party and the client remains unaffected.
Is third party funding possible?
Third party funding appears to be permitted although it is not expressly regulated by the Decree. Under the Decree, the representative action is rejected, inter alia, when it is brought in conflict of interest, in particular if it is brought against a defendant that is a competitor of the funding provider or against a defendant on which the funding provider is dependent. In this case, the court shall also raise the issue ex officio and grant the entity a time limit within which to make changes in respect of the relevant funding.
Conclusion
The Decree introduced in Italy the representative action, which can be brought by certain qualified entities included in special lists, and which is in addition to the Class Action, already specifically regulated by the Italian legal system.
This is without prejudice to individual actions that consumers may bring.
In any event, the rules governing the collection of evidence in the representative action are the same as those provided for in the Class Action.
Contact
Renato Fiumalbi
T: +39 289 287 656 E: renatofiumalbi@eversheds-sutherland.it
Deborah Borghi
T: +39 02 892 871 E: deborahborghi@eversheds-sutherland.it
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