On April 3, 2019 the Italian Senate definitively approved bill of law S.844, aiming at a radical reform of class actions.
The draft law has gone through quite a troubled path. It had been already submitted to the Italian Parliament four years ago, in a text substantially identical to the one which has now been approved. Its examination had reached a standstill at the Senate, until the draft had lapsed at the end of the previous parliamentary term. During such procedure, moreover, Prof. Ruffolo had been heard by the Senate’s joint Commissions on Justice and Industry, Trade and Tourism as an expert on the topic (http://www.studioruffolo.it/news/articolo_403.htm).
During the summer of 2018 the bill of law was submitted once again to the Parliament. In this second instance, the procedure has been significantly shorter and reached its end in less than a year, with the definitive approval of the Senate on April 3, 2019. Following its promulgation by the President of the Italian Republic, the new rules will enter fully into force 12 months after the publication of the law in the Official Journal.
The reform will introduce several modifications, which have been met by significant criticism by entrepreneurs, who highlighted, in particular, the risks of a substantial “unbalance” in the treatment of the parties to the litigation, to the detriment of businesses and possible abuses of this procedural tool.
First of all, the new class action does not entail any limitation concerning its subject matter and its scope of application. While the current version of Article 140-bis of the Italian Consumer Code (which has now been repealed) defines the class action as aimed at the protection only of “homogeneous individual rights of consumers and users”, the new rules do not entail such a limitation: not only consumers will be able to resort to class action, but everyone deeming to have suffered a violation of “homogeneous individual rights”. The new class action will, therefore, apply not only to consumer protection, but to all possible areas of action of a business. Accordingly, the rules on class action will be “moved” from the Consumer Code to the Code of Civil Procedure, which demonstrated that class action will be considered as a general procedural remedy.
Many criticisms have been addressed to the new rules on the “opt-in”. It will be possible to opt in the class action also in a quite advanced stage of litigation, i.e., not only after the judge has declared the action admissible, but even after the decision granting the petitioner’s requests.
Furthermore, specific attention should be paid to the institution of a new “profession”, i.e., the common representative of the members of the class who have opted in the action, who will be tasked with representing them in the stage following the decision granting the request, so as to manage the procedure aimed at obtaining compensation of the damage suffered by any class member.
The new law has also reformed the collective inhibitory action, which can now be brought not only by consumers’ associations, but by anyone having an interest in obtaining a inhibitory ruling from the court. Also individuals will, therefore, be able to sue to ask the judge to order the respondent business to stop unlawful behaviors put in place to the detriment of a series of individuals or entities.