Tuesday, March 9, 2010
Posted by D. Daniel Sokol
Alberto Martinazzi (Labaton Sucharow) explains Developments in Private Enforcement of Italian Antitrust Law.
ABSTRACT: As from January 1, 2010, a new procedural tool for the protection of consumers, the class action, is now available in the Italian legal system. Class actions constitute a new instrument consumers can rely on for the safeguard of certain individual rights already enforceable with individual lawsuits before courts. Thus, class actions are an alternative, rather than a substitute, to the existing judicial remedies available to consumers, which are by no means affected by the entry into force of the class action.
The Italian legislation on class actions was initially sketched out in the 2006 Codice del Consumo (hereafter “Consumer Act”) and then largely reshaped in July 2009 by Law n. 99/09 amending the Consumer Act. While the new rules apply from January 1, a partial retroactivity regime allows for class actions to be brought forward in respect to events occurred on or after August 16, 2009 (the actual date of entry into force of Law n. 99/09).
The matters which can trigger a class action are: i) contractual liability of an undertaking stemming from application of disproportionate obligations excessively bearing on the consumer party; ii) tort liability for damages caused to consumers by defaulting products; and iii) liability for damages suffered by consumers as a consequence of an undertaking’s unfair commercial practices or anticompetitive conducts.
Pursuant to the new regime, a single complainant is now entitled to lodge, on behalf of a group of individuals sharing an identical position and the same interest vis-à-vis a given undertaking, a civil lawsuit against the same undertaking for compensation of damages caused as a consequence of unlawful conducts impacting on consumers.
It is important to note that, according to general rules, class actions can only aim to recover actual damages suffered by consumers, punitive damages being expressly non-pursuable in the Italian legal system.