Class actions in Italy

  1.  Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.
  2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.
  3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.
  4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
  5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.
  6. What types of relief are available, i.e., damages and/or injunctive relief? 
  7. On what basis are damages calculated i.e., compensatory and/or some other basis?
  8. Are punitive or exemplary damages recoverable?
  9. Will domestic law need to be changed to comply with the Representative Action Directive?
  10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
  11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?
  12.  Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?
  13. Do you have specialist courts for these procedures?
  14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
  15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
  16. Can arbitration clauses lawfully contain class action waivers?
  17. Are contingency fee agreements permissible?
  18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?
  19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.

Under the Italian legal system, class actions are based on the opt-in mechanism. Under this mechanism, any member of a class is entitled to start an action.  

Before proceedings commence, notice of the action must be advertised in the public area of the website for digital services managed by the Ministry of Justice (Portale dei Servizi Telematici) (the “MOJ Website”). 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 starting after the 60-day publication period are struck out and cancelled from the register of the court proceedings. 

At the first hearing, the court will decide on the admissibility of the class action. Once a claim is declared admissible, members of the class may opt-in: (i) 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 (ii) after judgment is issued on the merits of the claim.

Members can join the action without legal representation by uploading a specific application form (available on the portal of digital services) and indicating the reasons for joining the class action, accompanied by the relevant documents along with the declaration of having paid the expense fund (i.e., the application fee).

2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.

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

3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.

Pursuant to Italian legislation, individual users or consumers are entitled to bring a class action to seek collective redress or restitution against companies or providers of public services.  

National consumer associations and representative entities are also entitled to seek collective redress, on the basis that the class action is to protect “individual homogeneous rights” (i.e., claims that are sufficiently common to one another) that are being violated by companies or public services providers. In particular, the entitlement to act is available to: (i) each member of the class; (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.

4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?

Under the former legislation, in force until 18 November 2020, few class actions were brought. Research undertaken by the Italian Antitrust Observatory revealed that between 2008 and 2018, 42 class action proceedings had been initiated. Of these, 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. 

New legislation came into force on 19 November 2020, which significantly broadened the scope of the new class action regime now aimed at protecting a wide range of contractual or noncontractual rights across different sectors, including environmental law and financial services. As a result, wider access to the class action regime is expected.

However, at the time of writing, the Ministry of Justice has not yet implemented the Portal of Digital Services – the digital dashboard where class actions must be advertised. This is a substantial obstacle in the implementation of the new legislation. 

5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.

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 are met for protecting individual homogeneous rights, as described above. 

6. What types of relief are available, i.e., damages and/or injunctive relief? 

The court has the power to:

  1. rule on the defendant’s liability;
  2. rule on claims for compensation for damages and claims for refunds;
  3. define the characteristics of homogeneous rights for the inclusion of other members in the class;
  4. grant a term of between 60 and 150 days from the date of the judgment for other members to opt-in.

7. On what basis are damages calculated i.e., compensatory and/or some other basis?

As a general rule, in the Italian legal system compensatory damages are determined according to the principle of causality: the liable party is required to pay compensation for damage that is an immediate and direct consequence of the infringement. Therefore, compensation must be proportionate to the damage actually suffered by the claimant who shall receive a payment suitable to remove the negative economic effects of the infringement. 

Damage must be demonstrated. 

8. Are punitive or exemplary damages recoverable?

Exemplary or punitive damages are not provided for under Italian legislation.

9. Will domestic law need to be changed to comply with the Representative Action Directive?

Italian class actions are currently regulated under Law no. 31/2019, repealing the former legislation that was in force since 2008.

The new class action legislation is aligned with the directive in the following ways: (i) the minimum reputational criteria for legitimate entities; (ii) the entitlement to start the class action;  (iii) and protection through inhibition and compensation. In other respects, the new legislation is not aligned. For example, the new legislation has a wider scope of application, contains a provision to award disproportionate costs against the losing party, and boasts a reward system that benefits the claimant’s lawyer. Also, the role of litigation funders is not regulated under the current Italian legislation. In addition, there’s no specific regulation for cross-border proceedings.

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

10. Are there special rules for settlement of class actions, e.g., requirement for court approval?

A settlement can be reached before the final decision. The court will issue a proposal that will be made public on the MOJ Website and communicated to the class members.

A settlement can be reached after the judgment. In this case, a proposal is jointly drafted by the general representative of the class and the defendant and made public on the MOJ Website. It will also be communicated to the class members. Any member is entitled to raise objections within a 15-day term. Upon authorisation of the court, the settlement is enforceable.

11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?

Other than the rule that stipulates the court will have territorial jurisdiction over 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. 

12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?

In order to receive certification, the class action must be aimed at the protection of collective homogeneous rights or individual rights (restricted to consumer and user rights) arising from the abusive conduct of companies or public service operators.

The class action will be declared inadmissible if: (i) the claim is clearly not grounded; (ii) the claimed rights are not homogeneous; (iii) the claimant has a conflict of interest with the defendant; (iv) the claimant is clearly not able to protect the claimed individual homogeneous rights.

13. Do you have specialist courts for these procedures?

The Specialised Business Division (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. 

14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?

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. If such evidence consists of confidential information, 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.

15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?

Where the court has ruled on the defendant’s liability, or on claims for compensation or damages, members of the class can appeal these decisions. The appeal will be heard by a second instance court, and will only be permitted if the judgment is a result of fraud, falsified evidence, or is in conflict with another judgment.

Any party can oppose a court's decree ordering the payment of compensation or restitution to any member.

The rules for the appeal/opposition are not the same as for unitary actions, since a class action is grounded in specific procedural rules from the code of procedural law, which only apply to class actions. 

16. Can arbitration clauses lawfully contain class action waivers?

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

17. Are contingency fee agreements permissible?

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

18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?

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.

In the Italian class action regime, legal costs are awarded to the general representative of the members, according to the following structure: 

  1. 1 to 500 members: amount not exceeding 9% of the overall amount due to all members; 
  2. 510 to 1000 members: amount not exceeding 6%; 
  3. 1001 to 10,000 members: amount not exceeding 3%; 
  4. 100,001 to 1 million members: amount not exceeding 1.5%; 
  5. over 1 million members: amount not exceeding 1%.

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

19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

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

There are, however, no specific rules regulating litigation funding.

See the Overview of the Representative Actions Directive >>
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Paola Ghezzi
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