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Class action

By Lawlinguists In Word of the week

“A lawsuit in which a single person or a small group of people is authorised to represent the interest of a larger one in which the convenience either of the public or of the interested parties requires that the case be settled through litigation by or against only a part of the group similarly situated” [Black’s Law Dictionary]. It is a concept imported from common law into continental law.
In Italy, actions by an association in the interests of a larger group, or where individuals with a similar claim against the same company/entity could initiate a claim, are enshrined in Article 140-bis of the Consumer Code. This is the closest comparable in Italian law to class action, and it is a concept known as “azione di classe”. Members of the class can seek redress for a violation of the following rights:

— Contractual rights of a class of consumer against the same tortfeasor. These may be, for instance, unfair contract terms in a standard contract (140 bis (2)(a))
— Rights arising from product liability (140 bis (2)(b))
— Damages as a result of unfair commercial practices (140 bis (2)(c))

However, “azione di classe” is more akin to collective action. For example, the association in bringing an action for the group as a whole and the mechanism that allows for members of the group to “opt-in” the claim, make collective action a more suitable translation (see collective action under the Fair Labour Standards Act, 29 U.S.C. § 206). For the mechanism under Article 140 bis, we have also opted for a more explanatory definition when warranted by the context: “action for injunction to protect the collective interests of consumers in unfair contracts”, here using collective as the operative term that is also used in the European context. Therefore, where collective actions may be suitable for “azione di classe” we choose to leave “class action” in its English form as it is somewhat distinct from the relevant provisions in the Italian Consumer Code.

Regarding French law, firstly, class action could be a false friend for a non-professional. The word “action” does not mean “share” but “lawsuit”, and class does not refer to the word “classe” but “groupe”. Thus, the translation that has been adopted in French law is “action de groupe” instead of “action de classe”. This legal procedure has been introduced only recently into French law. Scholars have argued for a long time about its introduction into civil procedure to prevent the “dommage de masse” and “micro prejudice”, which are identical damages caused to a large group of individuals. The notion took a long time to be accepted in French law and the comparison with Quebec and Italy was necessary before its introduction. French law was reluctant at least for two key reasons: firstly, because the philosophy of the French civil procedure is strongly grounded in the individual right to claim in Justice; secondly, the fear existed that the class action could have a negative effect on a company’s business because of the high costs and the damage to its image and reputation.