Legislative Decree No. 28 of 10 March 2023 transposes in Italy Directive (EU) 2020/1828, which introduces the concept of representative action. It is defined as an action for the protection of consumers’ collective interests, brought by a qualified entity against professionals, to seek an injunctive or redress measure. Although Member States were required to comply with the Directive by 25 December 2022, only few of them have adopted such provisions. For instance, France is still at the proposal stage, the French Council of State having recently (on 9 February) given its opinion on the Bill No. 639.

The main new feature of the Directive, in line with its objective of harmonizing class action regimes across the EU, is the creation of a cross-border representative action, i.e. an “action brought by a qualified entity in a Member State other than that in which the qualified entity was designated.” It thus allows entities from other Member States to bring an action before Italian courts, and vice versa. Italian entities entitled to bring such cross-border actions will be listed in a special section of Article 137 of the national Consumer Code. Only entities or associations that meet the requirements enumerated in Article 140 quinquies paragraph 2 will be able to register. Those requirements impose to demonstrate, among other things, an actual public activity for the protection of consumer interests, a non-profit-making character, not being subject to insolvency proceedings, absence of influence by traders and appointment of a supervisory body. If it so requests, the Italian Competition Authority (“AGCM”) may also be entitled to bring cross-border representative actions.

In any case, the Italian representative action, resulting from the aforementioned Directive, should not be confused with the U.S. class action, even though they share some features. The main difference lies in the possibility for U.S. courts to award punitive damages, in addition to compensation. At this regard, the French Bill, which provides for a civil penalty if the respondent committed a willful misconduct, is at the intersection between the American and Italian systems. Such a penalty does not amount to punitive damages insofar as the money is paid not to the victim but to the French national Treasury (Trésor Public). Besides, the Directive itself, in Recital 10, recommends to avoid “the awarding of punitive damages”, in order to prevent a “misuse of representative actions”.

In addition, the U.S. class action automatically includes all members of the represented class, who can then use their ability to opt out, i.e. to choose to withdraw from the action. Conversely, the Italian representative action uses the opt-in model (in this respect, the Legislative Decree refers to the Italian Civil Procedure Code). In other words, participation in the action is based on a voluntary act of the consumers, who may join the class at any time (either before or after the hearing). This is probably the reason why class actions are more successful across the Atlantic: French and Italian consumers are only considered members of the class when and if they affirmatively opt in, whereas U.S. consumers are automatically bound by the class action unless they decline to participate. This is why some European countries prefer a mixed system between opt-in and opt-out, or even just opt-out (as it is the case in Portugal).

However, the introduction in the Italian legal framework of a representative action for consumers’ protection does not repeal the pre-existing so-called “class action,” which has a broader scope. Here are the main differences between the two Italian actions:



Azione di classe

(Legge 12 aprile 2019, n.31)

Applicable provisions in the Italian Civil Procedure Code (Title VIII-bis), hereinafter “c.p.c.”

Azione rappresentativa

(D.Lgs 10 marzo 2023, n.28)

Applicable provisions in the Italian Consumer Code (Title II.1), hereinafter “c.cons.”


– Undertakings

– Bodies managing public services

(Art 840-bis paragraph 3 c.p.c.)

“Trader”, i.e. any natural or legal person, privately or publicly owned, that acts, including through another person acting on its behalf, for purposes relating to that person’s trade, business, craft or profession.

(Art 140-ter paragraph 1.b) c. cons.)

Protected interests

Homogeneous individual rights

(Art 840-bis paragraph 1 c.p.c.)

Consumers’ collective interests

(Art 140-ter paragraph 1. c) c. cons.)

Claimant party

(qualified entity)

– Non-profit organization or association whose statutory objectives include the protection of the rights at issue (list of the said organizations available on the website of Italian Ministry of Justice)

– Each member of the group

(Art 840-bis paragraph 2 c.p.c.)

– Consumer and user associations registered in the list under Article 137 c. cons.

– The Italian Competition Authority (AGCM)

– Entities designated in another Member State, included on the list published by the European Commission

(Art 140-quater c. cons.)

Qualified entities may bring the action without a power of attorney emanating from the consumers (Art 140-septies 1 c. cons.)

Ratione materiae
Any matter

Infringements of the provisions mentioned in the Annex II-septies, including:

– Liability for defective products

– Unfair terms in consumer contracts

– Electronic commerce

– Protection of personal data

– Food safety

– Unfair commercial practices

– Misleading advertising

Redress measures

– Establishment of liability

– Award of damages and restitution

(Art 840-bis paragraph 2 c.p.c.)

– Monetary compensation

– Contract termination

– Price reduction or reimbursement

(Art 140-ter paragraph 1. h) c. cons.)

If unsuccessful, the consumer is ordered to pay the costs of the proceedings only in case of bad faith or misconduct (Art 140-novies paragraph 3 c. cons.)

Injunctive measures Measure to cease the practice at issue, by omission or commission (Art 840-bis sexiesdecies c.p.c.)

– Measure to cease or prohibit the practice at issue (by omission or commission)

– Obligation to publish the decision in one or more newspapers

(Art 140-ter 1. i) c. cons.)

The entity does not have to prove the trader’s intentional tort or negligence, nor the actual losses or damages suffered by the consumers affected (Art 140-octies paragraph 4 c. cons.)

Jurisdiction Commercial Division of the court having jurisdiction over the place where the respondent is located.

The provisions of Legislative Decree No.28 regarding representative actions will enter into force, as provided for by the Directive, as of 25 June 2023. Download our summary table here.

For more information do not hesitate to contact us at the following e-mail address: [email protected].

Marco Amorese

Jeanne Deniau