There is no general collective redress procedure in Italy, instead, the ordinary civil procedure rules in respect of joinder are used to obtain redress in cases where there are multiple victims. In addition, there is a sector specific collective redress regime for consumer cases as well as a specific action in administrative proceedings.
Over the last twenty years or so the typical route used by plaintiffs to obtain compensation in mass harm situations was to join criminal proceedings against the defendants. Despite the introduction of class actions, claimants continue to lodge damage claims in criminal actions and this, along with the other traditional methods remain the preferred method of obtaining redress.
The collective regime in consumer cases is set out under Arts 139 -140bis of the Italian Consumer Code (ICC). Principally there are two distinct types of action that can be brought: the azione inibitoria, or injunctive action (Arts 139-140 ICC); and the azione di classe or compensatory action (Art 140bisICC). The azione inibitoria allows certified consumer organisations to bring an action seeking to prohibit conduct in defence of the interests of consumers in general. On the other hand, the azione di classe is more limited in scope and can only be brought for a) breach of contract; b) unfair or anticompetitive commercial practice; and c) product or service liability.
With respect to the azione inibitoria standing is granted to:
- The associations of consumers and users registered on the official register pursuant to Article 137, to act to protect the collective interests of consumers and users.
- Independent Italian public organisations and organisations recognised in another MemberState of the European Union, registered on the list of entities entitled to take action for an injunction to protect the collective interests of consumers, published in the EU Official Journal, which is damaging to consumers in that country, affecting allor part of a Member State.
With respect to the azione di classe standing is granted to:
- each member of the class
- associations and committees to which the class has granted the power to act.
At the first stage in the proceedings the court will consider whether the proposed representative has a conflict of interest and whether it is able to adequately represent the interests of the class.
Collective proceedings follow an opt-in model which is regarded as protecting the due process rights of the participants. At the first hearing, the court prescribes a time limit, not exceeding 120 days during which participants may opt-in.
Obtaining funding for collective proceedings is one of the biggest challenges in bringing collective proceedings in Italy, the burden of funding substantially falls on the claimant organisation itself. Whilst third party funding is allowed it is almost never used, and the consumer organisations themselves are poorly funded. The only other funding option is through the state which will provide funding to plaintiffs whose income falls below a set threshold.
Plaintiffs may obtain be assisted by entering into a success fee agreement with their lawyers, which are permitted. However, since lawyers are prevented from entering into a fully conditional agreement it is impossible to fully fund a claim this way.
Italian law also provides for a collective administrative proceeding. The action, introduced by the Legislative Decree 20 December 2009 no. 198, is aimed at remedying inefficiencies in public administration and ensuring public bodies' compliance with the standards set out for them. Persons with a direct interest and associations and committees representing them have standing to bring an action. No compensation is available but public bodies are bound to comply with any judgment.
The key inconsistencies with the Recommendation are:
• Lack of regulation of funding and fee agreements.
• The lack of access to funding
• Strict rules on standing.
BIICL has recently worked with the German public body, the Gesellschaft fur internationale Zusammenarbeit (GIZ) on a collective redress project....