Class action, 50% aim to block illegal clauses and practices

According to the classification carried out by Cleary Gottlieb compensatory actions are 42, while injunctive actions are 39. For injunctive actions based on Law 31/2019, there is no obligation to publish online: many are therefore not recorded. Then there are 19 mixed actions (injunctive and compensatory).

Seven class actions were accepted on the merits, 44 were declared admissible and 16 inadmissible. On the other hand, 33 proceedings were terminated (often after the declaration of admissibility) and this was probably due to settlements being reached. "The rush to compensatory class actions hoped for by the promoters of the 2019 reform has not taken place," explains Carlo Santoro, partner of the Cleary Gottlieb firm, "so much so that, in this area, the so-called litigation funds have not yet set in motion. "The procedure," Santoro continues, "is very complex, especially in the phase of determining damages (the process traces the bankruptcy one and has not yet been tested), and this may have made injunction initiatives 'preferable', which have strongly increased after the passing of Legislative Decree 28/2023, which introduced representative actions."

In addition, for injunctive actions it is not necessary the homogeneity of the positions of the adherents (a requirement that often determines the inadmissibility of class actions), but the enactment of conduct that is harmful to a plurality of individuals. Nor is the adherence of the injured parties necessary, since the action can only be brought by consumer associations.

"It is a very effective tool," says Alessandro Mostaccio, president of the Consumers' Movement, "because it aims to make the conduct cease. And once the unfairness of a practice or a contractual clause has been declared, one can try to reach settlement agreements or consider starting a compensatory action. But having provided for the express adherence of the injured parties (the reform opted for the opt-in) lengthens the time and complicates the procedure'.

In order to join, one must always go through the portal, and the consumer associations in a letter to the Ministry of Justice asked to be included among the legal representatives, the possibility of uploading memberships in a mass manner (and not only individually), and the extension of the publication obligation to all actions for injunctions.

"The growth of class actions does not measure the ability to protect: the test bench is to transform the assessment into refunds - says Federico Cavallo, head of external relations at Altroconsumo -. Results like Dieselgate (tens of thousands of consumers compensated thanks to a settlement agreement) were achieved on the basis of the regulations prior to the 2019 reform and would probably have been impossible with the current rules. The portal cannot just be a showcase of appeals: it must become a management infrastructure with a recognised operational role for associations and more transparency on outcomes, settlements and payments."