On December 21, 2007, the Italian Parliament passed the Budget Law 2008, which finally introduced into the Consumer Code a specific statutory provision (Article 140-bis) giving certain associations the capacity to sue collectively for tort liability, unfair trade practice, and anti-competitive behavior. The new law will become effective on July 1, 2008.
Under the new class-action law, bodies acting on behalf of consumers or investors will be able to obtain a declaratory judgment of the right to obtain compensation and the refund of sums due.
Standing to bring such a claim to protect consumers' interests has been granted to a few entities, namely:
- Consumer associations with a nationwide presence;1 and
- Any other consumer group, investor group, or association sufficiently representative of collective interests (as assessed by the judge).
Those consumers and users who intend to benefit from the protection afforded by the class-action proceedings must notify the promoter of the class action (the "Plaintiff") as described below.
1. First Phase
At the first hearing, the court, having heard the parties and gathered brief information (to the extent necessary), will examine the claim to assess admissibility.
- The claim is declared inadmissible when it is clearly groundless, when there is a conflict of interest, or whenever the judge does not ascertain the existence of any collective interest deserving protection pursuant to this article.
- Should the judge declare the admissibility of the claim, the Plaintiff is ordered to duly advertise the content of the claim, in order to enable consumers to opt into the action and take part in the proceedings; actions are also taken for the continuation of the proceedings.
Consumers may opt into the collective action by a simple written notice (without any particular formality) to the Plaintiff, which must be sent no later than the hearing for conclusions (i.e., the post-trial hearing). The consumers will be bound by the result. The final decision shall also produce legal effects on the consumers and users who have joined the class action. On the other hand, individual consumers or users who have not joined the class action or intervened in the proceedings shall maintain the right to bring individual actions.
2. Second Phase
The second phase of the proceedings will consist of a trial to obtain the substantive declaration and the criteria for calculating loss. The judge shall set the criteria to be used to calculate the amount to be paid or given back to the individual consumers and users who have joined the class action or intervened in the proceedings. The judge shall also establish the minimum amount to be paid to each consumer or user, if this is possible, on the basis of the documents at his or her disposal.
Within 60 days of the service of the decision, the company shall make its offer for payment, by way of a written deed to be served upon any entitled party and to be filed with the clerk's office. Any form of proposal accepted by the consumer or user shall be enforceable.
If the company fails to make its offer within 60 days, or if the offer is not accepted during that time, the president of the court shall appoint a Camera di Conciliazione (conciliation committee) to set the amounts to be paid or given back to the consumers and users who have joined the class action or intervened and who so request. The Camera di Conciliazione is composed of a lawyer duly indicated by the Plaintiff and a lawyer indicated by the summoned company, and it is chaired by a lawyer appointed by the president of the court.
1. These will be listed on a register maintained at the Ministry of Productive Activities (now called the Ministry of Economic Development) pursuant to Article 137 of the Consumer Code, which indicates the requirements that have to be met.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.