Italy has become one of the first European jurisdictions to allow class actions for damages. In their guide to Understanding Italy's New Class Actions Regime, Casey Halladay and Marco Amorese provide a critical analysis of the requirements and discover the unanswered questions of the new regime that will enter into force on 1 January 2009. Key issues include the definition of the conduct subject to claims, the entitlements to initiate a class action, the controversial opt-in model, and the assessment of damages. Halladay and Amorese consider herein the pros and cons of Europe's first true class action procedure for damages.
The authors write: After several years of delay and debate, class actions for damages will finally be allowed in Italy. On 14 December 2007, the Italian Governments 2007 Budget Law (Legge Finanziaria) announced the amendment of the Italian Consumer Code (Codice dei Consumatori) to create a statutory right for certain categories of plaintiffs to bring a collective damages action (azione collettiva risarcitoria) to obtain restitution and damages for certain contractual or tortious claims, or in respect of unfair commercial or anticompetitive practices. While the Budget Law proclaimed that the class action amendments would come into force on 30 June 2008, at the last moment the new Berlusconi government announced that the launch would be delayed to 1 January 2009. Businesses operating in Italy thus have an additional six months to prepare for these significant changes.
The class action amendments put Italy in the vanguard of a growing movement towards private litigation enforcement in Europe. However, the relatively cursory nature of the new regime raises more questions than it answers, and several critical interpretive gaps remain. This article explains the scope and application of the class action procedure in Italy, and analyzes the gaps and uncertainties in the new regime.
The adoption of class actions for damages places Italy at the forefront of an emerging European movement towards private enforcement of collective interests that has been backed, in part, by the European Commission since the late 1990s. In 1998, the European Union (EU) issued Directive 98/27, compelling Member States to adopt measures allowing independent public bodies or consumer organizations to seek injunctive relief for violations of certain consumer protection directives issued at the EC level (OJ 1998 L 166/51[]). So-called representative actions were subsequently adopted across the EU, although typically solely for injunctive or behavioral relief. More recently, the Commission has advocated the introduction of private damages actions for violations of the competition law provisions in Articles 81 and 82 of the EC Treaty, initiating a public consultation with its December 2005 Green Paper [] and in April 2008 issuing a White Paper [] and opening a second round of consultations. [footnote omitted]