Short article by Fabio De Dominicis

Title: The Evolution of Class Action in Italy: from a Consumer tool to a broad legal instrument with growing strategic potential

Italy introduced class action proceedings on January 1, 2010, through Article 49 of Law No. 99 of July 23, 2009, which inserted Article 140-bis into the Consumer Code. From its inception, the class action was conceived exclusively as a tool available to consumers.

As is often the case with innovative legal mechanisms, the implementation of this new tool was gradual. It required time for all stakeholders to become familiar with its procedures and potential. The class action is inherently multidisciplinary, intersecting law, economics, sociology, behavioral psychology, management, and marketing. It also calls for an entrepreneurial approach – something not typically embedded in the traditional skill set of European lawyers. Even in the United States – the place where the class action has had the most success – it took nearly a century of legal development and institutional refinement, from its embryonic stage in 1842 to full maturation in 1966, for class actions to become the powerful legal instrument they are today.

Consequently, within the European context, it is unrealistic to expect similar outcomes within a mere ten or twenty years. Nonetheless, and particularly in light of the recent reforms discussed below, the overall status of collective redress mechanisms in European countries is decidedly positive. These mechanisms present substantial opportunities for those prepared to leverage them strategically.

The First Phase: The Initial Italian Class Action (2010–2021)

Under the initial regime of Article 140-bis of the Consumer Code (in force from January 1, 2010, until May 19, 2021), the following figures summarize the tool’s application:

• Cases Filed: 93
• Admissibility Granted: 35
• Admissibility Denied: 47
• Judgments in Favor of Consumers: 6
• Settlements: 12 (including the landmark VW Dieselgate case—In 2024, Altroconsumo, a member of Euroconsumers, and the VW Group reached a groundbreaking settlement providing over €50 million in relief to more than 60,000 Italian consumers impacted by the emissions fraud scandal).

The Reform: from Consumer Code to Civil Procedure Code

Law No. 31/2019 reformed the class action mechanism by relocating it from the Consumer Code to the Code of Civil Procedure,by inserting articles 840 bis to 840 sexisdecies of the Code of Civil Procedure.  The reform came into effect on May 19, 2021, and applies only to violations occurring after this date. The reform introduced significant changes and broadened access to collective redress.

Key Innovations:

• Expanded Eligibility: The action is now available to all parties – individuals, companies, and employees alike.
• Scope: Applicable to both contractual and tortious claims.
• Increased Utility: Particularly impactful in the area of antitrust litigation.
• Digital Infrastructure: Introduction of an official Ministry of Justice portal that publicly lists all class and representative actions (https://servizipst.giustizia.it/PST/it/pst_2_16.wp?d-8032343-p=1).

Structure of the New Class Action

The revamped class action under the Civil Procedure Code follows a structured three-phase model:

1. Admissibility Phase

• Judicial Review: the judge assesses the homogeneity of claims, absence of conflicts of interest, adequacy of the representative party, and whether the claim is manifestly unfounded;
• Certification: if the criteria are satisfied, certification is granted. Class members may then join during this early opt-in phase;

2. Judgment Phase: the court adjudicates the rights of the lead plaintiff only. This ruling does not address the rights of other class members.
3. Adhesion and Compensation Phase

• Following the judgment, other class members may join the class.
• Compensation is then determined based on a dual opt-in system:
  • Early Opt-In: Immediately after the admissibility order(the judge sets the deadline between 60 and 150 days from the publication of the admissibility order).
  • Late Opt-In: After the liability ruling(the judge sets the deadline between 60 and 150 days from the publication of the decision).
• Joining the class is streamlined: no attorney is required, and the entire process takes place online via the Ministry of Justice portal.

Incentive Mechanisms and Financial Dynamics

The new system incorporates several incentives aimed at promoting the use of class actions:

• Advance Payment of Expert Costs: the defendant generally bears the cost of court-appointed experts (CTU), barring specific exceptions.
• Reward fee:The general rule on costs in Italy is the so-called English rule, the losing party is ordered to reimburse the prevailing party’s legal costs (including lawyers and expert fees), as per ministerial fee schedules. Moreover, only for successful class (and now also representative) actions, additional reward fees are granted to the lead plaintiff’s legal team and counsel for other joined actions. Article 840-novies of the Civil Procedure Code stipulates the following percentage-based reward fee structure:

• €1 – 500 (class members): 9% of total compensation
• €501 – 1,000: 6%
• €1,001 – 10,000: 3%
• €10,001 – 100,000: 2.5%
• €100,001 – 500,000: 1.5%
• €500,001 – 1,000,000: 1%
• Over €1,000,000: 0.5%

This regime represents a powerful incentive for pursuing B2B class actions in Italy. While application has so far been limited – primarily because major cartel infringements occurred before May 19, 2021 – the potential is substantial. For example, in a future cartel case akin to the European truck cartel or the Italian corrugated cardboard cartel (where companies suffered damages individually ranging from €10/15 million), a collective legal action with 100 claimants and a case value of €1/1.5 billion could yield legal fees of €90/135 million in reward fees, in addition to standard legalfees.

The Representative Action and Double Track Post 2023

Italy also transposed EU Directive 2020/1828 through Legislative Decree No. 28/2023, introducing a consumer representative action. While similar in structure to the general class action, it presents key differences.

As of now, Italy offers two parallel class redress mechanisms:

1. General Class Action (Articles 840 bis et seq., Civil Procedure Code)

• Introduced by Law No. 31/2019 and effective from May 19, 2021.
• Class action now available to any plaintiff (including companies and workers).
• Applicable for claims of damages under contract or tort law.
• Previously limited to consumers/users, enhancing its impact on antitrust class actions.
• Applicable to violations of homogeneous individual rights across any area of law.

2. Consumer Representative Action (Articles 140ter et seq., Consumer Code)

• Introduced by Legislative Decree No. 28/2023, effective from June 25, 2023.
• Limited to qualified consumer associations listed by the Ministry of Enterprises and Made in Italy.
• Applicable only to specific sectors listed in the annex to the Decree.
• Allows for compensatory and injunctive relief.

A Promising Future: Data and Trends

The effectiveness and attractiveness of the new system are evidenced by actual developments. In 2024, a transnational compensatory class action was filed before the Milan Court on behalf of over one million individuals across Italy and Europe. The fact that such an action, involving parties from multiple EU countries, was initiated in Italy reflects the credibility and strategic value of the Italian system.

Moreover, the momentum continues to grow. Between 2024 and the first quarter of 2025, more than 50 collective actions (both class and representative) were filed via the Ministry’s portal – a number that continues to rise.

Final Reflections and Outlook

To conclude, I would like to share a few observations on the current and future landscape of class actions – offering a forward-looking and optimistic perspective. Europe, and particularly Italy, is well-positioned to make the most of this evolving system.

While class actions remain relatively new in Europe, several factors indicate a clear trend toward “Americanization” of the mechanism and convergence with U.S. practices:

1. RAD (Representative Action Directive) is encouraging harmonization and more efficient domestic procedures.
2. Opt-out mechanisms and late opt-in models are emerging (as seen in Italy).
3. Third-party litigation funding is increasingly accepted.
4. Contingency-style fee systems are being adopted (notably in the Italian model).
5. The concept of cross-border cooperation (“Stronger Together”) is yielding results, as demonstrated in the Euroconsumers vs. HP case.
6. Major U.S. law firms are establishing a presence in key European cities, bringing with them a more entrepreneurial legal culture.

All these trends point to a profound shift: “The wind is changing in Europe.” As the saying goes, “There is no bad weather, only bad equipment.” For European lawyers, judges, consumer associations, and litigation funders, this is the time to be creative, proactive, and ready to seize the growing opportunities in the field of collective redress.