Class actions in Italy

See the Overview of the Representative Actions Directive >>

The Italian class action, regulated by Law no. 31/2019, is based on the opt-in mechanism.

Members of a class (users or consumers), individually or through associations to which they grant power, or committees in which they participate, are entitled to start a class action to seek collective redress or restitution against companies or providers of public services. 

The protected interests must be homogeneous to all members of the class. Homogeneous rights  include:

• contractual rights of consumers and users who are in the same situation against the same trader (e.g. rights arising from standard terms and conditions and mass contracts);
• identical rights arising from product liability, even in the absence of a direct contractual relationship;
• identical rights to compensation for damage suffered due to unfair commercial practices or anti-competitive behaviour.

The homogeneous rights are protected by the Italian class action without any limitation or restriction: indeed, such rights can be harmed by individual acts or by once-off or continuous behaviour, provided that such acts and/or behaviour have occurred after 19 May 2021.

Before proceedings commence, notice of the action must be advertised in the public area of the portal of digital services managed by the Ministry of Justice (Portale dei Servizi Telematici) (the “MoJ portal”).

Any further class actions relating to the same cause of action, starting within 60 days of publication, are consolidated within the advertised notice of action. Actions relating to the same cause of action started after the 60-day publication period are struck out and cancelled from the register of the court proceedings.

At the first hearing, the court decides on the admissibility of the class action. The class action can be declared inadmissible if patently unfounded, or there is a conflict of interests, or rights are not homogeneous, or the lead claimant cannot adequately protect the interests of the class.

Members of the class may opt-in:

1. after the ruling of the court on the admissibility of the action by the deadline granted by the court (ranging from a minimum of 60 days to a maximum of 150 days); or
2. after judgment is issued on the merits of the claim.

Members can join the action even without legal representation by uploading a specific application form available on the relevant portal of the MoJ website and indicating the reasons for joining the class action, along with the relevant documents and the declaration of having paid the application fee. This sum is determined by the court together with the decision upholding the action, and has to be paid by each member as a fund for the expenses of the procedure.

While joining a class action implies waiver of any individual restitution or compensation action based on the same title, individual actions brought by consumers who do not join in the class action are not affected.

Italian legislation does not provide for an opt-out system.

Any of the following is entitled to start a class action :

i) each member of the class, irrespective of the quality of consumer: thus, also professionals, companies, non-profit associations, investors, shareholders, workers are entitled to act;

ii) any non-profit organisation or association, whose statutory objectives include the protection of those whose rights have been violated, provided that such associations and organisations are registered in a public list held at the Ministry of Justice. At the time of publication, the register is not yet effective.

In order to ensure that the associations and organisations included in the register are appropriate  to represent and protect the homogeneous rights, are stable and have adequate financial resources, Italian Parliament has set up a series of requirements and criteria to be met by the associations in order to be included in such a list, namely:

• having been constituted at least two years before the submission of the application for registration;
• having its registered office in Italy or an EU Member State;
• having as a statutory objective, even if not its exclusive objective, the protection of homogeneous individual rights, without any profit-making purpose;
• the annual publication of the balance sheet and its auditing by third parties;
• the absence of funding sources (required in order to highlight its non-profit purpose);
• the compliance with the requirements of honour for members, directors or representatives;
• specific rules on the merger of associations and organisations.

A class action can also be brought against the entity ultimately responsible for illegitimate conduct and, in particular, against companies and entities managing public services, in relation to activities carried out while performing their tasks and duties.

Under the former legislation, in force until 18 May 2021, few class actions were brought. Research undertaken by the Italian Competition Observatory revealed that between 2008 and 2018, only 48 class action proceedings had been initiated out of which 23 were declared inadmissible with only four claims being upheld. These relatively low numbers were presumably due to the particularly strict requirements for bringing class actions under the former legislation.

The new legislation effective from 19 May 2021 significantly broadened the scope of the class action regime, now aimed at protecting a wider range of contractual and non-contractual rights across different sectors, including environmental law and financial services. Consequently, greater access to, and use of, the class action regime is expected.

Moreover, the implementation of the specific section “Class Action – Azioni di Classe” in the MoJ portal as from 19 May 2021 allows the monitoring of the collective actions registered and enables those who wish to join the action to file an application for joinder.

At the time of publication, the MoJ portal shows two pending class actions, both brought in 2021. 

There are no restrictions to the cause of action or type of claim that can be brought. Compensation/restitution can be claimed for any type of contractual or tort infringement without limitation, provided that requirements for protecting individual homogeneous rights, as described above, are met. 

The applicable procedural system does not vary on the ground of the area of law in which the class action is brought.

There isn’t any threshold for the damages that can be recovered, either from a single defendant or overall; the compensation is apportioned among the members on the ground of the damages actually suffered by each of them. 

In case of breach of contract not entailing wilful misconduct, only compensation for the damages which were foreseeable when the member entered into the contract can be claimed.A class action can be brought to protect various situations that may have arisen from damaging conduct, to ascertain liability and to order compensation for damages and restitution. 

The action is not limited to contractual liability, as it may also concern damages arising from tort liability.

In addition, injunctions against acts and conduct carried out to the detriment of a plurality of individuals or entities may be obtained; in particular, an order to prohibit repeated acts or omissions may be made. 

Under the Italian legal system, only compensatory damages are allowed.  Calculation of damages is made according to the principle of causality: the liable party is required to pay compensation for damages that are an immediate and direct consequence of its infringement. Therefore, compensation must be proportionate to the damages actually suffered by the claimant and the payment shall be intended to remove the negative economic effects of the infringement. 

Proper evidence of the damage, either economic and non-economic, actually suffered must be provided. 

According to the established case law of the Italian Supreme Court (Corte di Cassazione), exemplary or punitive damages are not allowed under Italian law.

The current legislation is aligned with the RA Directive with regard to the following:

• the minimum reputational criteria for legitimate entities;
• the entitlement to start the class action;
• the protection through inhibition and compensation.

Conversely, the new legislation is not aligned with regard to the costs. In particular, it provides disproportionate costs against the losing party as well as a reward system for the benefit of the claimant’s lawyer, being calculated as a percentage of the damages awarded to the class, although the court will retain some discretion over the actual percentage awarded.

In addition, there are no specific provisions for cross-border proceedings.

Thus, in order to fully meet the minimum requirements set forth by the Directive, some aspects of the Italian procedure need to be changed.

A settlement proposal can be submitted by the court to the parties until the hearing scheduled for the oral discussion. For this purpose, a draft of the settlement agreement is published on the MoJ portal and also communicated to the members of the class.

A settlement can also be reached after the judgment. In this case, a proposal is jointly drafted by the general representative of the class and the defendant. Once approved by the court, the proposal is made public on the MoJ portal and also communicated to the class members. Any member is entitled to raise objections within a 15-day term

Other than the rule identifying court having jurisdiction in the court of the place where the defendant has its registered office, there are no other specific rules on jurisdiction that apply to the Italian class action regime. 

The court rules on the admissibility of the class action after the first hearing. If the class action is deemed to be admissible, the court also sets out the opt-in criteria for the class members. 

The preliminary ruling on admissibility must be issued within 30 days from the first hearing and published on the MoJ portal. The preliminary ruling on admissibility can be challenged within 30 days and the court must make a decision within a further 30 days.

If the case is declared inadmissible, consumers can commence individual proceedings.
The class action is declared inadmissible in the following cases:

• if patently unfounded, or 
• there is a conflict of interests, or 
• rights are not homogeneous, or 
• the lead claimant cannot adequately protect the interests of the class.

The Specialised Commercial Chambers (Sezione Specializzata in materia di imprese) of the court where a given defendant has its registered offices shall have exclusive jurisdiction under the new class action regime.

The court has a high degree of discretion over the collection of evidence. Ascertainment of the defendant’s liability can be made on the grounds of statistical data, as well as rebuttable presumptions. 

Upon the claimant’s request, the court may order the defendant to submit the evidence to support the claim. In this respect, the court must specifically identify the evidence or the categories of evidence that are subject to disclosure. If such evidence consists of confidential information or documentary evidence, the court may adopt specific measures to protect confidentiality, which may include the non-disclosure obligation, the ability to redact the confidential information contained in a document, the possibility to have a closed hearing, and/or limit those permitted to access the documents. 

The defendant has the chance to make submissions to the court before it makes any decision on collection of evidence.
The party not complying with the court’s order of disclosure may be subject to a fine of between € 10,000 and € 100,000.

Differently from what is provided for unitary claims, a judgment rendered in a class action can only be appealed if it is the result of fraud, counterfeited evidence, or if it conflicts with another judgment.

Upon request of the appealing party, the court of appeal may suspend the judgment’s enforceability, taking into account the total amount due by the defendant, the number of creditors, and any prospective difficulty in recovering the amounts paid should the appeal be successful. In any case, the court of appeal may order that damages awarded at first instance be held in escrow.

Although not yet tested, we think it is unlikely that such an arbitration clause would be enforceable. 

No. As a general rule, any contingency fee agreement linking payment of fees to the achievement of a particular result is strictly prohibited under Italian law.

However, as outlined below, in the Italian class action regime, there is a form of award for lawyers based on the number of members, which is similar to the contingency fee principle.

Under Italian law, the loser-pays principle is the general rule. However, courts have a high degree of discretion in allocating costs, depending on several factors, such as the parties’ conduct in the proceedings and the nature of the dispute.

With the decree upholding the claims for opting in, the court orders the defendant to pay directly to the common representative and to the claimant’s lawyer a sum equal to a percentage – which is progressive and based on the number of the participants in the class action – of the total amount due by the defendant to the members of the class action, as per the following structure:

i.     1 to 500 members: amount not exceeding 9% of the overall amount due to all members;

ii.    510 to 1000 members: amount not exceeding 6%;

iii.   1001 to 10,000 members: amount not exceeding 3%;

iv.   100,001 to 1 million members: amount not exceeding 1.5%;

v.    over 1 million members: amount not exceeding 1%.

The relevant provision expressly states that this fee for the claimant’s lawyer is due as a bonus, thus unveiling the favor of the law toward the class action and likely to trigger recourse to class actions.

Also, there is a reward system that benefits the claimant’s lawyer, which we refer to in our response to question 9 above.

Usually, costs of class actions are funded by means of the membership fee paid by the members of the organisations or associations bringing the class action.

However, while in principle there is nothing to prevent a third party from funding litigation, direct third-party funding of litigation is not common in Italy and there is very little case law on this topic. Nonetheless, third party funding of litigation in the form of the assignment of rights to professional claimants is increasingly common, especially with regard to air passengers' claims.

Financial support from the Italian Government is available for claimants whose annual income falls below a threshold set by the law (currently € 11,493.82 per year). Any potential claimant who fulfils the income requirements must file an application with the local Bar Association.

No specific funding opportunities are available to claimants in class actions. In principle, after-the-event insurance would be allowed under Italian law, although it is not common to see ATE insurance purchased in Italy.

See the Overview of the Representative Actions Directive >>

For more information on European Class Actions, please download our annual report: 

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European Class Action Report 2023

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