Italian representative actions: a year in review

Martina Rossi

A&O Shearman, Milan

martina.rossi@aoshearman.com

the landscape of European legal systems, collective redress mechanisms have been a topic of significant interest and development over the past decade. Italy has seen a considerable evolution in this area with the introduction of a substantial reform of Italian class action rules in 2019, as well as of representative actions in 2023 with the implementation of the Directive (EU) 2020/1828. As we mark the first anniversary of Legislative Decree No 28/2023 (the ‘Italian Representative Action Decree’ or the ‘Decree’[2]), it is a good time to reflect on the state of Italian representative actions and their impact on the Italian legal landscape.

In 2023, the Italian Representative Action Decree introduced a fresh suite of regulations into the Italian Consumer Code (Artt 140-ter and ff). These regulations supplemented and, to some extent, recalled the Italian Class Actions provisions outlined in articles 840-bis and ff of the Italian Code of Civil Procedure, especially with respect to procedural aspects (eg, formalities of the petition, competent courts, etc).

The scope of application of the Italian representative actions is broad. It aims at protecting consumers against breaches of European provisions, ranging from defective products to data protection, from health to tourism, unfair contract terms and e-commerce. The scope might gradually expand as new EU provisions for consumers’ protection are issued, or upon initiative of the Italian legislator. Claims can be brought for both injunctive relief (to stop the unlawful behavior) and compensatory damages (to redress the harm caused).

The representative actions are exclusively available to qualified entities acting in consumers’ interests. In particular, domestic actions (ie, brought before an Italian court) could be started by an association of consumers or users (registered in the list under Article 137 of the Italian Consumer Code) or by independent public bodies. The defendants of a representative action could encompass a broad range of entities, both individuals and organisations. This includes any natural person or legal entity, whether operating in the public or private sector, engaged in activities connected to their commercial, business, professional or trade pursuits, even where another entity operates in their name and/or on their behalf.

One year after the introduction of the Decree, Italian representative actions have just begun to take root. Based on available data published on an ad hoc web platform held by the Italian Ministry of Justice[3], to date approximately ten representative actions have been brought before Italian courts. Also, so far, any representative action lawsuit filed within the Italian judicial system has been started upon initiative of a sole consumer association (ie, Associazione Movimento Consumatori) against financial entities or car rental companies. The purpose of these claims is to get a declaration of illegitimacy/nullity of specific contractual clauses and/or the corresponding commercial conduct that is detrimental to consumer interests.

While the number of representative actions is currently low, and thus the journey still seems challenging, the Decree has opened up new possibilities for collective redress and has the potential to significantly enhance consumer protection in Italy. As more cases are brought to court, judicial interpretations of the new set of rules will play a crucial role in shaping its practical application and effectiveness. Consumer awareness might also play its role. Indeed, the success of representative actions depends on consumers being informed about their rights and the availability of relevant means of redress. Likewise, the recent expansion of litigation funding in our jurisdiction could be a booster for the development of collective claims. In any case, as the representative actions system matures, it will certainly become a key part of the Italian legal framework.