Product Liability 2009 - Arnold & Porter LLP

Lovells LLP Italy
will be awarded if the injured party was aware of the defect and the
risks connected thereto, but nevertheless tolerated and thereby
accepted exposure to the risk by continuing to use the product.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
Italy belongs to the civil law tradition which does not contemplate
trial by jury, so all civil proceedings are governed by a single judge
or panel of judges.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
Yes. A judge can appoint technical experts (CTUs) to assist him or
her in specific or technical activities (e.g. medical assessment of
certain health damages; causation). The results achieved can be
evaluated only by the judge and they do not represent a piece of
evidence. See also the answers to questions 4.8 and 4.9 below.
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
On 21st December 2007 the Italian Parliament passed an amendment
to article 140 of the Consumers’ Code introducing a collective/class
action system. Only certain consumer associations were entitled to
sue collectively for tort liability, unfair trade practice, and anticompetitive
behaviour (including antitrust violations) on behalf on
consumers and end-users. The 2007 Law provided for a collective
action system based on an opt-in mechanism and a two-steps
procedure: the first one aimed at assessing admissibility of the
collective action and the right to compensation; the second one (extrajudicial)
for the quantification of the damage. The amendment should
have entered into force on 30 June 2008. However, due to further
amendments, entry into force of the law on class actions has been
postponed until 1st July 2009. On 23rd December 2008, the Italian
Government filed with the Parliament a last draft for amending the
former proposed collective/class action system in order to address
some of the concerns expressed by stakeholders and resolve several
contradictions and gaps.
The draft proposal submitted by the Government in December 2008
shapes a new system based on the following elements:
Capacity to sue on behalf of class members is granted to a
member of the class (also through consumers’ associations
which- however - do not have an autonomous right to file the
class action and need to receive mandate to that effect). Other
consumers and users may opt-in not later than the term granted
by the Court when it rules on admissibility of the class action.
The action may relate to:
i. contractual rights of a plurality of consumers and users
placed in an identical situation vis-à-vis the same company
(including rights relevant to standard agreements);
ii. identical rights of end consumers of a product vis-à-vis the
manufacturer, irrespective of a direct contractual relationship
with the latter; and
iii. identical rights of consumers to compensation for prejudice
suffered as a result of unfair business practices or anti-trust
conducts.
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London
The two-steps procedure (judicial and extra-judicial) is
abolished: upon ruling on the admissibility of the action (which
can be denied if the action is manifestly groundless, if a conflict
of interest exists, if there is no identity in the individual rights,
or if the class representative appears not to adequately represent
the interest of the class), the Court gives direction on the
proceedings and rules on:
a) the features of the individual rights in dispute and the criteria
that must be satisfied to be member of the class;
b) the term within which opt-in is allowed; and
c) if the claim is accepted, the amounts due to the members or the
criteria to quantify them.
In deciding, the Court shall take into account the overall amount
payable by the defendant, the number of creditors and the difficulties
in recovering the amounts in the event where the defendant’s appeal is
upheld. The Court can rule that the aggregate amount due by the
defendant is deposited until the decision is final.
The decision becomes enforceable after 180 days from publication.
No other class actions for the same facts and against the same
defendant can be filed after expiry of the term for opting-in. Class
actions filed before said date, are consolidated to the one previously
commenced. Waivers and settlements between some of the parties do
not affect the right of other class members who have not expressly
consented thereto. Consumers and users who do not opt-in are entitled
to file individual claims.
The law applies retroactively to torts occurring after 1st July 2008.
Finally, as in the former draft bill on class action, unlike in the US, no
discovery, no punitive damages and no jury trial are provided for.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
Under the current regime, consumer associations are only entitled
to act on behalf of consumers and users to obtain an injunction
preventing reiteration of a conduct which prejudices consumers and
an order for corrective remedies, besides publication of the
decision. Please also see the answer to question 4.3 above.
4.5 How long does it normally take to get to trial?
The common law concept of “trial” is unknown to the Italian civil
procedure system: Italian proceedings consist of an introductory
stage when the statement of claim and statement of defence and the
subsequent briefs with specification of the claims and defences are
filed; an evidentiary stage when fact witnesses are heard and courtappointed
experts carry out their assessments; and a final stage
when conclusive briefs are submitted by the parties and the case is
reserved for decision by the court. The duration of the proceedings
depends on the complexity of the case, on the number of fact
witnesses heard and on the time devoted to court-appointed experts.
Generally, up to three years may be required to reach a first instance
decision. For the duration of collective action proceedings please
refer to the answers to questions 4.3 and 4.4 above. As the law of
collective actions has not entered into force yet, it is not possible to
assess possible duration of these proceedings.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
In principle, the court can try preliminary issues (e.g. lack of
jurisdiction) prior to examining the merits of the case. In practice,
WWW.ICLG.CO.UK 191
Italy