On March 24, 2023, Legislative Decree no. 28/2023 transposing and implementing Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers was published in the Official Journal. Its provisions will begin to apply from June 25, 2023.
The legislative decree will include, as part of the Italian Consumer Code, the concept of national representative action and, as an entirely new element, cross-border representative actions, which may be brought before an Italian court by one or more qualified bodies from other member states, or brought in another member state by a qualified body also jointly with other qualified bodies from different member states.
Representative actions under the legislative decree may be brought for violations of the provisions contained in the numerous EU directives listed in Annex II-septies of the legislative decree, including, but not limited to, those relating to product liability, consumer goods warranty, unfair trade practices, misleading advertising, e-commerce, and digital services.
However, this special concept will affect the so-called class action introduced by Law no. 31 of April 12, 2019 and regulated by Articles 840-bis et seq. of the Italian Code of Civil Procedure, since the legislative decree provides that, in the event of a breach of the provisions set forth in Annex II-septies, the qualified bodies will only be able to act through the representative action provided for by this decree, thus precluding the possibility of resorting to the class action provided for by Articles 840-bis et seq. of the Italian Code of Civil Procedure.
National representative actions may be brought, without having to collect consumers’ agreement to participate in advance, by (i) consumers’ and users’ associations included in the list referred to in Article 137 of the Italian Consumer Code; (ii) bodies designated in another member state and included in the list drawn up and published by the European Commission; (iii) national independent public bodies referred to in Article 3(6) of Regulation (EU) 2017/2394.
Cross-border representative actions may be brought by bodies and associations of consumers as well as users, provided they meet the requirements for registration in the special section of the list referred to in Article 137 of the Italian Consumer Code, kept by the Ministry of Enterprises and Made in Italy.
Bodies wishing to be registered in the list must include in their bylaws (i) rules to ensure the association’s independence and the absence of influence from professionals who have an economic interest in bringing representative actions, as well as (ii) measures to prevent and resolve conflicts of interest that could arise between the association, its funders, and the interests of consumers. Particular attention is paid to the issue of third party funding—plaintiffs must indicate the financing received or promised by third parties, and applications will be declared inadmissible if the party that financed the action is a competitor of the defendant or an employee of the same.
Representative actions may be brought against professionals, meaning any natural person or legal entities acting—including through another person acting in its name or on its behalf—for purposes relating to its trade, business, craft, or professional activity.
Types of remedies available
By means of representative actions, it will be possible to request either compensatory measures to remedy the prejudice suffered by the consumer, including through payment of money, repair, replacement, price reduction, contract termination or reimbursement of the price paid, or injunctive measures, such as an order to cease or prohibit the repetition of the professional’s unlawful conduct, and/or an order to publish the measure in one or more national or local newspapers or the publication of a correction.
A significant new element concerning representative actions aimed at obtaining injunctive measures is the provision by virtue of which such actions may be brought only after 15 days have elapsed from the date on which the qualified entities have requested the professional, by registered letter with return receipt or by certified electronic mail or other qualified electronic delivery service, to cease the conduct prejudicial to the interests of consumers or users.
If an injunction is applied for, the plaintiff does not have to prove fault or intent on the part of the professional, nor the actual loss or damage suffered by the individual consumers concerned. If there are justified reasons of urgency, the plaintiff must obtain precautionary measures in accordance with Articles 669 quater, sexies, octies, decies, duodecies and terdecies of the Italian Code of Civil Procedure.
Having thus outlined the main new elements of the decree, we just have to wait for its effective implementation.