As of June 25, 2023, the provisions contained in legislative decree no. 28/2023 have become applicable within Italian legal system. The decree transposes the EU Directive 2020/1828 on representative actions for the protection of collective consumer interests, as an addition to the Consumer Code (articles 140 ter to 140 quaterdecies).
The objective of the European directive is to consolidate consumer trust in the internal market by ensuring effective and uniform protection, while avoiding distortions of competition.
Unlike the class action outlined by the legislature in 2019, which aimed to protect the homogeneous individual rights of class members, the new representative action is defined as an action for the protection of collective consumer interests. According to the definition provided by the decree (taken from the European directive), these interests arise from violations of regulations and directives explicitly listed in Annex II of the legislative decree (see here). Furthermore, the new regulation differs in that the representative action is exclusively brought by authorized entities, specifically listed in a register to be maintained by the Ministry of Enterprises and Made in Italy, even in the absence of individual “represented” mandates.
Another element of novelty is the expansion of the range of potential defendants: the representative action can be brought not only against businesses and public entities, but also against any professional, natural or legal person, public or private, engaged in activities related to their commercial, entrepreneurial, artisanal, or professional endeavors.
The representative action, which can be national or cross-border, aims at obtaining injunctive measures (article 140 octies) – cessation or prohibition of the repetition of the conduct, either omission or commission, that violates consumer protection rules, and publication of the measure in one or more newspapers – and/or compensatory measures (article 140 novies) – compensation, repair, replacement, contract termination, price reduction, or refund.