Uproar in the Italian public
opinion as the Senate, while debating the annual financial law,
approved - on November 16th, 2007, by a two
vote's majority - an amendment (Section 53-bis) to the
bill's original draft text, meant to enforce collective
protection for consumers by introducing a class action
The amendment, if confirmed by
the Chamber of the MPs, would introduce significant
modifications to the Consumer Code in force (Legislative Decree
no. 206 of September 6th, 2005); in their key
aspects the new provisions would:
- while maintaining
individuals' right to access courts in order to defend
their rights, allow consumer protection associations to take
collective action before the court of the place where the
defendant has its residence (or legal seat) for claiming
reimbursement or damage compensation with respect: to
infringement of certain (one-sided or standard form)
contracts, to unfair commercial practices, to acts of unfair
competition (when performed by carriers/providers of
nationwide services) and to illicit conduct,
- provide that such collective
action would interrupt prescription deadlines for
- would entitle courts to
establish the criteria based on which damages compensation
awarded will have to be transferred to individuals,
- admit settlement agreements
stipulated between the parties under the court's
- entitle courts to
establishing, in case of claim acceptance or settlement
agreement, an arbitration chamber, accessible by individual
consumers, as well as to ordering broad public notice about
the judgment issued,
- specifically with respect to
one-sided or standard form contracts, imply – when
misleading information to general public is found, that all
individual contracts concluded during the period of diffusion
of the incorrect messages are automatically void,
- while confirming the general
(even if not automatically binding) principle according to
which the losing party is charged also with the winner's
legal costs, limit the winning party's attorney fees to a
maximum of 10% of the global amount awarded in damages.
The amendment's - unexpected
- approval led to a general outcry and heavy protest from many
sides and interest groups:
- Consumer Protection
Associations didn't fail to stress the importance of the
new provisions, but felt that they had to be considered just
as a first step towards even more effective enforcement
measures (say 'punitive damages').
- The National Industry
Entrepreneurs Association immediately predicted a simply
disastrous perspective for its members' competitiveness
and described the amendment as an obvious "act of
hostility" towards entrepreneurship.
- The President of a National
Lawyers Association referred to a "blitz" action,
ignoring a number of legal issues and technical concerns
flagged to the legislators' attention by legal
- The representative of the
National Association of Young Lawyers ironically referred to
wrong terminology considering the proposed "class
action" as a "false action".
- The Minister of the
Department of Justice felt that the Chamber of MPs would have
to look carefully into the issue in order to avoid national
investments being directed abroad.
- On the contrary, the
Minister of the Department for Economic Development stated
that in his view the new provisions would have a positive
- Some less involved and more
balanced commentators noted that the new bill –
though probably anticipating a common position under
discussion at EU level – actually was simply
replicating class action systems already in force in several
other European countries.
All but easy to predict how this
bill will pass the Chamber of MPs' examination. For sure
the path will be crowded with obstacles and intense
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