The necessary conceptual and definitional hurdles are herein tackled, in order to clarify the different notions relevant for the discussion: e.g., ‘access to justice’, ‘class actions’, ‘representative actions’, ‘collective redress’, ‘injunctive’ or ‘compensatory’ relief, and the different enforceable positions. Furthermore, in light of the considerations from the previous Chapters, a twofold trend is highlighted—of emerging substantial power asymmetries, which increasingly widen practical enforcement gaps, and of emerging ‘meta-individual’ positions, at times unaccountable and unclaimable by a single individual holder. The consequences on the concrete enforcement of rights are thus stressed, with a focus on the principle of effective judicial protection under Italian constitutional and European supranational law (and case law). As argued, the necessary atypical and public character of the right to action, ‘one of the fundamental principles of any democratic society’ demands a collectivisation of the way of enforcement in order to fill the abovementioned gaps. In this perspective, class actions emerge as an atypical procedural form of intermediate bodies, although their potential impact requires a fundamental reconsideration, and adaptation, of fair trial guarantees, too—which, after all, constitute the other side of access to justice.

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Constitutional Foundations of (Collective) Access to Justice in Italy and Concepts

  • Ander Maglica

摘要

The necessary conceptual and definitional hurdles are herein tackled, in order to clarify the different notions relevant for the discussion: e.g., ‘access to justice’, ‘class actions’, ‘representative actions’, ‘collective redress’, ‘injunctive’ or ‘compensatory’ relief, and the different enforceable positions. Furthermore, in light of the considerations from the previous Chapters, a twofold trend is highlighted—of emerging substantial power asymmetries, which increasingly widen practical enforcement gaps, and of emerging ‘meta-individual’ positions, at times unaccountable and unclaimable by a single individual holder. The consequences on the concrete enforcement of rights are thus stressed, with a focus on the principle of effective judicial protection under Italian constitutional and European supranational law (and case law). As argued, the necessary atypical and public character of the right to action, ‘one of the fundamental principles of any democratic society’ demands a collectivisation of the way of enforcement in order to fill the abovementioned gaps. In this perspective, class actions emerge as an atypical procedural form of intermediate bodies, although their potential impact requires a fundamental reconsideration, and adaptation, of fair trial guarantees, too—which, after all, constitute the other side of access to justice.