LA «ANTESALA» CONCEPTUAL DE LA AZIONE DI CLASSE. UN APORTE AL ANÁLISIS COMPARATÍSTICO SOBRE LA TUTELA DE LOS ASÍ LLAMADOS ‘DERECHOS SUBJETIVOS HOMOGÉNEOS’.

The study analyses the linguistic usages dominant in the discourses of Italian and American legal doctrine on the nature of the situations of advantage protected in the normative context of collective procedural actions. The aim of the analysis is to specify certain features of the conceptual «antechamber» (conceptual premises) of azione di classe as envisaged by article 140bis of the Italian Consumer Code. Rather than analyse the legal doctrine on azione di classe, the thesis deals mainly with the discourses and assumptions implicit in the normative prescription of this institute within a legal culture characterized, especially since the 1970s by (i) the constant use of locutions such as ‘general interest’, ‘collective interest’, ‘collective right’, ‘supra-individual interests’, etc., on the basis of (ii) a conceptual (or purportedly such) premise according to which the collectivity is a rights holder. Instead, as the fundamental argument of the study, the author maintains that in a normative legal system every situation of advantage is always and only a subjective right. Hence, the collectivity is not, nor can be, a rights holder. Consequently, expressions such as general interest, collective interest, collective right, supra-individual interests, etc., always and only denote a set of subjective rights characterized, at most, by the fact that their object is the enjoyment of a collective good (a good which, as such, does not admit to its exclusive enjoyment nor rivalry in its consumption). That is to say, they always denote homogeneous subjective rights. Having argued for the erroneousness conceptual «antechamber» governing the discourse on collective action in Italy, the thesis explores the development, purposes and, above all, consequences of the permeability of doctrinal (and subsequently jurisprudential and legislative) discourse to the collectivist ideology in Italian legal culture, which is also influenced by a specific perception of the American class action. To this end, part of the thesis is also devoted to establishing, by means of the same methodological analysis, whether American legal culture comprises an analogous phenomenon in relation to the procedural mechanism of class action. The analysis shows that there is evidence of a collectivist conception also in American legal culture, particularly in light of the justificatory arguments adduced for the ‘Private Attorney General’ and the consequent meaning attributed by doctrine to the expression ‘public interest’. Then, the influence of the collectivist ideology in American procedural doctrine in regard to collective action is analyzed, highlighting its effects in relation to the justificatory discourse on class action. In this regard, the thesis emphasises marked differences from, but also important similarities with, the Italian context. The most striking similarity is the employment of collectivist discourses in both countries (in Italy also as a consequence of EC policy) in normative and doctrinal statements intended to protect market rules.