CLASS ACTION INJUNCTION OR ACTION, IN ART 3 OF LAW 281 (ARTICLE 140 OF THE CODE OF CONSUMPTION )
report Simone Filonzi
The debate over class action has produced numerous projects over the two terms, finally realized in the Budget Law 2008 (Act No 244 of 12.24.2007, art. 2, 446 second paragraph), which introduced initially in the new Consumer Code Art. 140-bis, entitled "Collective action for damages."
Although the provisions were to be made applicable with effect from 1 July 2008 (pursuant to Art. 2, 447 second paragraph of the Budget Law), the Government decided to shift the entry into force on 1 January 2009 to the first , then to July 1, 2009 Finally, after having radically altered the text of old art. 140-bis, on 1 January 2010.
It was introduced by the institute. Law 49 of July 23, 2009, No 99, which amended Article 140-bis of Consumer Code, referred to in Legislative Decree 6 September 2005, No 206. It 'been so outlined the action of the Italian class, starting in January 2010, will allow consumers access to the institution in order to enforce their rights.
The law has determined what are the rights can be protected :
a) the contractual rights of a plurality of consumers and users who pay in respect of any one firm in the same situation, including the rights relating to contracts concluded under articles 1341 and 1342 of the Civil Code (contracts through a form or forms). Thus the law makes explicit reference to a liability contract.
b) the identical rights of the consumer end of a product against its manufacturer, even without a direct contractual relationship. Responsibility to be regarded as pre-contract or tort.
c) the rights identical to the rest of the resulting injury to the same consumers and users from unfair business practices or anticompetitive behavior. Non-contractual liability that may arise from tort, resulting in damages.
The same legislation has also given the subject standing to sue :
1. Any consumer (even one) component of the reference class, individually or through associations which it participates. The complete transformation of the rules on class action has thus led to a contortion of the bodies empowered to act. Before only the consumer organizations, now you damaged, in person, possibly also through groups they belong to.
2. Subsequent accession of persons who are in the same situation as the proposer. Such participation involves relinquishment of all (restitution or compensation) based on the same individual title. The instrument of accession, which, over the election of domicile, the name of the constituent elements of the law relied on the documentary evidence, shall be deposited at the Court, including but not necessarily, by the plaintiff, and within the period specified by the court. The proposition of the class has its effects on the demand and requirement of notification for those who joined later, by depositing its instrument of accession.
holes competence
Another new law is represented by the exclusive setting of holes for the class action is brought. In fact, the law established the general principle that the action class must be submitted to the Ordinary Court established in the capital of the region in which the enterprise. In addition, courts have been established specific expertise in some regions. The prediction of setting a single criterion of competence, so as to subject matter for the country, is to be appreciated. In fact, all proceedings may be brought forward a single judicial office, and this can allow both to meet the needs of decision related to the concentration of shares, or to allow a kind of unique and specialized training of competent judges.
Introduction of the
The action is brought by writ of summons, and sent also to the office of Chief Prosecutor at the Court hearing the case, which may intervene, but only to admissibility. These estimates innovative compared to the original wording of Article. 140 bis of Consumer Code.
filter
In the first hearing by order of the Court decides on the admissibility or otherwise of the application, but may stay the proceedings when the facts relevant to the decision before an investigation is under way to an independent authority, or a trial before an administrative court. The application shall be declared inadmissible as manifestly unfounded if there is a conflict of interest, or when the judge does not see the identity of individual rights be protected in accordance with paragraph 2, and when the applicant is not able to treat adequately the interests of class.
complaint against the order of eligibility or otherwise of the trial
against the ordinance which shall decide whether or not the action may be brought complaints before the Court of Appeals, within thirty days of its notice or notification, whichever is earlier (deadline). If the complaint is brought against an order of the eligible, it is not already stayed the proceedings before the Court hinged.
rating
The judge decides on the admissibility or otherwise of the order. If the same issue ordinances for rejection, are also regulated expenses, and order appropriate forms of publicity at the expense of the losing party. But when the judge issues the order by which admits the action, the court sets the terms and conditions for the most appropriate advertising, for the timely accession of belonging to the class. Running advertising is a condition of admissibility of the application.
If the judge permits the assessment of class:
a) defines the character of individual rights covered by the court, specifying the criteria according to which those seeking membership are included in the class or to be considered excluded from the measure;
b) establishes a mandatory, not exceeding one hundred and twenty days from the expiration of that for the execution of advertising, by which acts of accession, even by the actor, must be lodged with the Registrar .
copy of the order shall be sent by the Registry, the Ministry of Sviluppo Economico che ne cura successive forme di comunicazione, anche mediante la pubblicazione sul relativo sito internet. È stato escluso l'intervento di terzi ai sensi dell'articolo 105 c.p.c.
Con l'ordinanza con cui ammette l'azione il Tribunale determina, altresì, come dovrà svolgersi il procedimento assicurando, nel rispetto del contraddittorio, l'efficace e sollecita gestione dello stesso. Non sono proponibili successive azioni di classe per i medesimi fatti e nei confronti della stessa impresa dopo la scadenza del termine per l'adesione assegnato dal giudice ai sensi del comma 9. Quelle proposte entro detto termine sono riunite d'ufficio se pendenti davanti allo stesso tribunale; altrimenti il Giudice, after hearing, order the removal from the register, giving a deadline not exceeding sixty days for the resumption before the first judge.
process definition :
The ruling
If the Court accepts the application, a preliminary verdict in which liquid, in accordance with Article 1226 of the Civil Code (equitable evaluation of damage), the final amounts due to those who have joined the action or set the homogenous standard calculation for the settlement of such sums. In case of acceptance of a class action brought against the operators of public services or public utility, the Court takes into account the recognized benefit of users and consumers damaged in its service cards may be issued. The sentence becomes enforceable expiration of one hundred and eighty days of publication, and it was also against the members, subject to the individual action of those who do not adhere to collective action.
The appeal
In that case the Court of Appeal if the request is made for suspension of the enforceability of orders or execution of sentence of First Instance (Article 283 CCP), held account the overall amount charged to the borrower, the number of creditors, as well as the difficulties of recovery in the event of acceptance of the appeal. The Court may in any case provide that, until the court decision becomes final step, the total sum owed by the debtor is filed and remains bound in the manner deemed most appropriate.
retroactivity
The law, as mentioned above, also introduced the (controversial) principle of retroactivity. Indeed, the class action provisions apply only to illegal conduct after the entry into force of Law July 23, 2009, No 99 , and then after the day Mid-August of 2009 . This legislative clarification is to be understood as a reference point for taking the time at which the company held its detrimental conduct, even if the damage may have occurred at a later date. Therefore, the new class action will therefore apply to any damage, even if occurring after the date of August 2009, resulting from defective products placed in commercial distribution before that date.
Top law enforcement and critical
According to the associations, the class action is certainly one more tool available to consumers, but the law could be concepita in maniera più adeguata. Proprio il principio della mancata retroattività della legge è stato fortemente criticato. Come detto, l’azione di classe non è proponibile per tutti gli illeciti precedenti all’entrata in vigore della legge. È quindi esclusa la possibilità di ottenere un risarcimento del danno per tutti gli scandali finanziari degli ultimi anni, come ad esempio Cirio, Parmalat, Lehman Brothers. Tale limitazione, secondo i detrattori, è priva di presupposto giuridico in quanto il generale principio d’irretroattività della legge dovrebbe valere per le norme di diritto sostanziale che introducono nuovi diritti, e non per quelle processuali che non introducono nessun nuovo diritto. In addition, consumer groups will not be able, as provided in the initial drafting of the legislation, as promoters of the shares, but only to receive the mandate from damage. Also according to the critics of class action, is also disputed the notion of identical claims in addition to appearing very limiting. If we take, for example, defective products, such as a drug, the rights that individual consumers can rely on are almost never identical. In fact, any disruption could have taken the drug in different situations, manifest different ailments, have been damaged uniform. If you were to impose a strict interpretation of the identity of rights, would difficult to identify in which cases would be very applicable to the class action.
Final
tool of the class can be viewed as a whole only after the first cases taken
appear evident, however the considerable obstacles placed by the legislature making it very difficult ' access to that institution, in fact, now the action may be brought by consumers and users, alone or in combination.
Indeed: "The judge must assess the person's ability to manage the class action. (How could an individual citizen to bear all the burdens that require the class action) In addition, if the claim is deemed admissible, the court must indicate the appropriate form of advertising of the action and may order a number of commercials on TV and out on national newspapers, with prohibitive costs. In practice it may happen that in order to give a little satisfaction, as the cost of shipping bills, we should anticipate significant sums of money.
It 'clear that the individual consumer groups could find themselves in trouble before this economic burden.
addition, the system for the membership and exclusivity of the first course of action may cause further difficulties. In practice, those who share the same loss suffered by the promoter of the action can join (opt in) to a class action within 120 days of the closing date of advertising. Who does not do is cut off: it can not join or promote a new appeal. This means that if you brought a lawsuit against a company based in Turin and a victim finds out too late, because he lives far away and not read the papers on which the action was publicized, it can not retaliate.
At this point you may re-evaluate the traditional way recourse to the justice of the peace or a multiple use even after an injunction Contained in Article 3 of Law 281 (Article 140 of the Code of consumption), as a form of collective legal protection.
fact, based on art. 140 of the Consumer Code, the list of registered associations in art. 137 of the Consumer Code has the power to take legal action to protect the collective rights of consumers with the ability to request the competent court
1) to inhibit the acts and conduct prejudicial to the interests of consumers;
2) to take all appropriate measures to eliminate the harmful effects of violations;
3) to order the publication of a court order on or more national or local newspapers, where the publication can help to correct or eliminate the effects of violations.
The provision of this instrument in favor of a recognition of the interests of consumers is important because it is released from any injury suffered by the individual consumer: the action it can be started directly in advance by consumer associations to protect their collective interests, regardless of reports of individuals and therefore the need to protect a single individual situation.
In addition, consumers, individually, they hold only for their own individual rights, mentre compete alle associazioni l’inibitoria per i comportamenti lesivi o la rimozione degli effetti di quelli già posti in essere in quanto mettono in pericolo o producono effetti dannosi in relazione ad interessi riconducibili alla generalità della categoria dei consumatori.
Pertanto, le due possibilità di tutela restano autonome ed i relativi casi sono nettamente separati e non intercambiabili, non trasferendosi gli effetti del giudicato dell’azione collettiva direttamente ed immediatamente nella sfera giuridica del singolo consumatore.
Tuttavia, questi potrà innestare la propria azione individuale sulla sentenza risultante dall’esercizio dell’azione inibitoria collettiva. E viceversa, l’ottenimento of a favorable ruling on an individual level for a consumer, may, relevant conditions are met, the subject of an injunction to protect the collective interests pursued by the associations entitled.
It is noteworthy that there is no link between the class action with the injunction that would in any case, rather than diminish or cease its function to be always kept in mind for its quick application and not burdensome.
a concrete example: CLASS ACTION
INJUNCTION OR ACTION, IN 3 OF THE LAW IN ART 281 (ART 140 of the Consumer Code)
The investigation published by a German magazine (Auto Motor und Sport) is shown in 'Repubblica.it article on the returns do not correspond to reality made by car, on the CO2 emissions from cars on the market, opens the face of initiatives that consumer groups will inevitably have to put in place for the protection of consumers.
ADOC is reviewing possible actions against car manufacturers such as class actions or the injunctions of Article. 140 of the Code of consumption.
