I INTRODUCTION TO THE CLASS ACTIONS FRAMEWORK
Class actions analogous to those in the United States did not exist in the French legal system before 2014, when a 'group action' mechanism was created by the French legislature.2
Prior to the creation of group actions, various other procedural means, which are still in existence, could be relied upon to bring joint claims, namely:
- joint actions brought by way of a single writ of summons by multiple claimants having a common interest against the same defendants;3
- a third party's voluntary interventions in existing proceedings;4
- consolidations of different, coexisting proceedings;5
- legal actions undertaken by associations in the name of their members (but solely in relation to the members' collective, rather than individual, interests);6
- specific proceedings brought by accredited consumer associations in the collective interests of consumers7 (such as, for example, proceedings relating to consumer contracts containing clauses that are deemed to constitute unfair terms);8
- joint representative actions brought by accredited associations when instructed by individual claimants to seek damages in matters regarding consumer law, financial law and environmental law;9 or
- specific proceedings brought by labour unions on behalf of employees who have been dismissed on economic grounds.10
The above-listed recourses, however, lacked efficiency, especially when dealing with mass disputes (among other things, because of the strict conditions limiting the ways in which associations can communicate publicly in relation to the proceedings they bring).11
Before the creation of group actions in 2014, the creation of a French class action type mechanism had been discussed on and off for about 30 years by the legislature. Indeed, as early as the mid-1980s, two draft bills seeking to create a French version of class actions were debated but ultimately failed to be enacted (although they did lead to the creation of the above-mentioned joint representative actions).12 Discussions were renewed, once again, in 2003 and the project had the support of the government in place at the time.13 The following government, however, did not view it as a priority and legislation establishing a class action mechanism was not passed, despite the fact that several draft bills were debated and public opinion was overwhelmingly favourable.
Finally, thanks in part to the resolve of the sitting minister for consumers, Mr Benoît Hamon, group actions became part of the French legal landscape on 17 March 2014, when Law No. 2014-344 was enacted. The group action mechanism created by this Law was quite different from its north American inspiration, as, under the new, French mechanism, such actions could only be initiated by a limited number of consumer associations (accredited at national level), rather than individual claimants. Furthermore, claims brought by way of group actions could only relate to financial losses and were initially limited to disputes falling under consumer law and competition law. However, the 17 March 2014 law was but the first of a series of steps, as additional laws extending the scope of group actions or creating new types of group actions have been enacted at a steady pace since then. French law now also provides for group actions in relation to health issues,14 data protection, discrimination, environmental matters and administrative law.15
Although the various group actions created since 2014 differ slightly from one another, they do share certain, essential characteristics, namely that they are:
- brought by accredited legal entities16 acting in the name and interests of individual victims (rather than by the individuals themselves); and
- all organised according to a two-step process, with a judgment on liability being handed down, followed by a post-judgment opt-in mechanism for the indemnification of the individuals represented in the group action at issue.
In December 2016, the French legislature passed a law17 creating a dedicated fund, intended to support claimants initiating group actions. The fund was intended to be financed thanks to the fines handed down against defendants to group actions brought before French criminal courts (but no similar fines would be handed down before French civil jurisdictions). The creation of the fund was postponed, however, following a request from certain French MPs that it first be the subject of constitutional scrutiny. This constitutional scrutiny was carried out and the envisaged fund was never created as the Constitutional Council held that it was unconstitutional18 in that it violated the constitutional principle of equality, because defendants before civil jurisdictions would not be treated in the same fashion as defendants before criminal jurisdictions.
Although only a limited number of group actions have been initiated since 2014, group action case law has already started to take shape, which has, in turn, influenced the French legislature: decisions handed down in November 201719 and May 201820 held that claims relating to residential leases fell outside the scope of consumer law group actions (contrary to the initial objective of the legislature when it created this type of group action), as a result of which Law No. 2018-1021 was enacted on 23 November 2018, modifying the relevant provisions to include residential leases in the scope of consumer law group actions.21
To date, 19 group actions have been brought before civil jurisdictions (some are still ongoing, while others have settled or been rejected) regarding, among other matters, housing, financial services and mobile telecommunications.
ii THE YEAR IN REVIEW
i Recent statutory developments
Decree No. 2019-1333 of 11 December 2019 (the 11 December 2019 Decree) reforming civil procedure was published on 12 December 2019, came into force on 1 January 2020 and will impact the French group action regime.
Indeed, the provisions of the Code of Civil Procedure apply to class actions as claims made under this regime are brought, administered and judged in accordance with the provisions of the Code, as would be the case with claims brought by individual claimants.
The most significant change introduced by the 11 December 2019 Decree, for the purposes of French collective redress claims, relates to changes to the prerogatives of the case administration judge (i.e., the judge who oversees the case-administration phase, during which parties exchange their submissions, before the dispute is finally heard by the judge (or judges) who decides the case on the merits).
Before the 11 December 2019 Decree, although the case-administration judge had jurisdiction to hear procedural incidents and objections that could lead to proceedings being dismissed, the judge who heard the case on the merits could also later rule on whether claims were inadmissible in certain instances (i.e., lack of standing or interest, time limitations, res judicata).
Since the 11 December 2019 Decree came into force (and amended the relevant sections of the Civil Procedure Code), however, the above-described regime has been modified, and the case-administration judge now has sole jurisdiction to hear procedural objections and arguments intended to have the proceedings dismissed.
These changes to case-administration judges' jurisdiction constitute an important development in the French legal landscape, especially so in the context of group actions, which inherently give an important role to the case-administration judge.
ii Recent court decisions and current proceedings
In a decision handed down on 19 June 2019, the Court of Cassation ruled that residential leases, governed by the Act of 6 July 1989, could not fall within the scope of the group actions governed by Article L423-1 of the Consumer Code, as such leases do not constitute service contracts,22 contrary to the position held by the consumer association that had initiated the group action in question.
The scope and effects of this decision were, however, rather short-lived as Law No. 2018-1021 modifying Article L423-1 of the Consumer Code has since come into force and created a legal regime that is specifically intended to allow the sort of group claims that were considered and dismissed by the Court of Cassation in its above-discussed 19 June 2019 decision.
Moreover, in June 2019, the UFC-Que Choisir association initiated a group action before the Paris Tribunal de Grande Instance against Google Ireland and Google LLC to 'put an end to the insidious exploitation of the personal data of its users, particularly those who have Android equipment with a Google account, and to compensate them, up to €1,000'.
According to the UFC-Que Choisir association, when it comes to geolocation and advertising targeting, Google must obtain the express consent of its users, leading them to take a clear action: check a box. By not asking for the user's consent, Google would be acting in violation of the General Data Protection Regulation.
Over the course of the previous calendar year, three decisions were handed down by French courts in group action proceedings and, towards the end of the year, an association formally declared that it would likely be initiating a data protection group action in the first half of 2019.
Several recent developments that occurred before 2019 are also worth noting. On 27 June 2018, the French supreme court, the Court of Cassation, rendered its first decision regarding a group action.23 The decision was on a procedural point, but it is noteworthy as it is a procedural point that is common to all group actions, namely the necessity that the writ initiating a group action contain a (non-exhaustive) list of individual claimants who are deemed to be representative of the types of claimants who would join the group action at the opt-in phase. In this case, the appellant argued that, upon initial analysis of the writ, the case-administration judge had the legal obligation to scrutinise the list of representative claimants contained in the writ to verify that its members were indeed capable of constituting a list of people who had suffered identical or analogous prejudices that had allegedly all been caused by the defendant. The appellant further argued that, as the inclusion of such a list was an imperative requirement for any group action writ, any defect with the list would render the writ null and void. The appellant therefore argued that, in the case at hand, the case-administration judge should have inspected the list, pursuant to its legal obligation, and declared the writ null and void, as the individuals included in the list at issue were not capable of representing a homogeneous set of claimants, having suffered identical or analogous prejudices on account of a common cause.
In its decision, which should be followed in the future by French courts, the Court of Cassation ruled that the case-administration judge only had the legal obligation to verify that such a list was indeed included in the group action writ. Contrary to what the appellant had argued, however, the case-administration judge did not have a legal obligation to review the list in detail to ascertain that it could indeed be deemed to be representative of individuals constituting a homogeneous class of claimants; this obligation, the Court of Cassation ruled, fell to the judge on the merits, and not the case-administration judge.
On 3 October 2018, the Paris High Court handed down a decision in a group action case regarding the claims brought by a consumer association against a mobile phone network provider.24 The Court rejected the association's claims that the network provider was in breach of its legal and contractual obligations to provide a particular service to its customers. As the case was rejected at the first phase, during which its merits were considered by the High Court, it did not progress to the second, opt-in phase.
To our knowledge, there are 14 group action proceedings currently pending, one against a mobile phone company, four against banks and insurance companies regarding financial services, one against an automotive company regarding defective products, two against pharmaceutical companies regarding drugs and contraceptive, one against a computer search engine regarding personal data, and five regarding discrimination, against:
- a company specialising in the design and manufacture of engines for the aeronautical industry;
- the French public railway company;
- a French town;
- the ministry in charge of higher education; and
- the Ministry of the Interior.
Finally, the Internet Society France, a non-governmental organisation, issued a formal notice before a group action to Facebook on 8 November 2018. In March 2019, the Internet Society France indicated that Facebook's responses, specifically in relation to transparency and its protection of consumer personal data, were not satisfactory and that the Internet Society France therefore intended to initiate a group action against Facebook.
iii Upcoming legislation and announced future changes to the class actions sector
Possible legislative changes could lead the current French group action regime to evolve significantly in the near future. Indeed, on 17 October 2018, several Members of Parliament presented a bill intended to open group actions to groups of citizens. The proposal envisages that groups of consumers (of a minimum of 100) could initiate group actions themselves, without the need to be represented by one of the approved consumer associations. If this proposal were to be adopted, it could constitute a significant change to the current regime, by allowing consumers to have more direct access to group actions, which could, in turn, have a sizeable impact on the number of group actions brought before French courts.
This proposal was referred to the Committee on Economic Affairs and a fact-finding mission was launched on 10 July 2019.
Moreover, at the European level, on 11 April 2018, a proposal was filed for a European directive on representative actions relating to the protection of the collective interests of consumers. The envisaged regime would make it possible to introduce actions in a variety of areas, such as financial services, energy, telecommunications, health and the environment. These actions would make it possible not only to claim compensation, but also to file injunctions (preventive or final) compelling the defendant to cease and desist the conduct complained of. In addition, the directive would introduce an opt-out mechanism for 'small claims cases'.
On 26 March 2019, the European Parliament voted on the first reading of the amended proposal for this directive. Before becoming final, the text will still have to be consulted upon by the European Parliament and the European Council, and then be published in the Official Journal of the European Union.
As it stands, the draft European directive shares significant similarities with the French group action regime. For example, it expressly provides that lawyers should not be considered a qualified representative entity, that punitive damages should be prohibited and that contingency fees should be avoided. Finally, the procedural scheme is, like the French group action, also made up of two phases: a first phase of declaration of liability, to which consumers are not parties, and a second phase of compensation.
Finally, an amendment25 also specifies that the directive is to be implemented at a level of minimum harmonisation, such that Member States will not be compelled to replace or modify existing collective redress mechanisms in their own jurisdictions. Member States will therefore be able to implement the rules provided by the proposed directive either by updating their existing procedures or, alternatively, by creating a separate procedure.
As indicated above, group actions were introduced to the French legal system progressively, one industry sector or type of prejudice at a time. It follows that the provisions that govern the various available group actions are spread out over various corresponding legal corpuses (the Consumer Code, the Code of the Environment and the Labour Code). As a consequence of the approach chosen by the French legislature, the procedures applicable to the different types of group actions may vary slightly, although they all share common fundamental characteristics, listed below.
i Types of action available
For a group action to be filed, various individuals need to have suffered identical or analogous prejudices as a result of a defendant's breach of its statutory or contractual obligations.26 Although most group actions can only be brought against a single defendant, group actions based in consumer law and competition law allow more than one defendant.27
Not all types of prejudice can be indemnified under every available group action. In certain cases, damages may only be awarded for financial losses, such as in consumer and competition group actions.28 In contrast, in healthcare group actions, claims can only be brought as a result of personal injuries.29 Other types of group actions, however, such as environmental group actions, can allow damages to be awarded for both physical injuries and financial losses.30 Finally, in group actions relating to discrimination and data protection, damages may be awarded for moral harm or financial losses.31
Given the fact that certain types of group actions only allow claims for specific types of prejudice, but not all types of prejudice, one could conceivably expect situations to arise whereby two distinct group actions are initiated so as to enable claimants to seek compensation for the various types of damage suffered as a consequence of a single, common breach (i.e., victims could, for instance, participate in both a healthcare group action and a consumer law group action if a given drug has caused them to suffer personal injuries and financial losses, as healthcare group actions only allow claims for personal injuries, whereas consumer law group actions only allow claims for financial losses). A scenario of this kind, which has not occurred yet, would have clear disadvantages for both the claimants and the defendants because of the duplication involved. It could be avoided altogether if the scope of the various group actions were extended, but as far as we are aware no plan to do so is currently being considered by the legislature.
The limitation period that applies to group actions is the standard five-year period that applies in French civil law,32 which starts to run from the date the victim became aware or should have become aware of the facts that gave rise to its right of action. If a group action is initiated and the defendant is found liable at the end of the first phase of the proceedings, the time limitation applicable to individual actions that could be brought in the context of the group action (during the second, opt-in phase) is suspended.33 The applicable time limitation resumes its course when the court's decision on the group action has become final or after a settlement agreement has been approved by the court.34
ii Commencing proceedings
As mentioned above, only specific entities can introduce class actions:
- for consumer and competition law group actions: only consumer associations accredited at a national level can initiate proceedings,35 of which there are only 15 at the present time;
- for healthcare group actions: only associations devoted to consumers of the healthcare system accredited at a regional or national level (and whose activities do not encompass commercialising health products) can initiate proceedings;36
- for discrimination and handicap group actions: only associations dedicated to fighting discrimination or disabilities that have been in existence for a minimum of five years or more can initiate proceedings (provided their stated aims encompass the defence of rights or interests that may be the object of discrimination);37
- for group actions relating to discrimination in the workplace: only labour unions and associations with the stated purpose of fighting discrimination or disabilities (that have been in existence for five years or more) can initiate proceedings;38
- for group actions relating to environmental law: only accredited associations devoted to the protection of the environment or accredited associations with the stated purpose of defending their members in relation to physical or financial prejudice can initiate proceedings;39 and
- for group actions relating to data protection: proceedings can only be initiated by associations with the stated purpose of protecting privacy and personal data (that have been in existence for five years or more), or accredited consumer associations when the data processing at issue affects consumers and labour unions when the data processing at issue affects the workers whom the union protects.40
Prior to introducing a group action, by serving a writ, the accredited association or labour union that wishes to do so must first serve a formal notice on the defendant to request that it end the breach or indemnify the losses for which the group action is envisaged.41 The action may be initiated only four months after this notice. In matters regarding discrimination at the workplace this period is increased to six months to allow for a discussion process to take place between the claimant, unions and employee organisations.42
French law does not impose a requirement that the class or group of claimants be defined from the inception of the proceedings, in the writ itself; it is for the court to do so in the decision it will hand down at the end of the first phase, wherein it will rule on both the admissibility of the claim and the defendant's liability43 (there is, however, an exception to this rule is the derogatory regime of the simplified group actions relating to consumer law).44
iii Procedural rules
As mentioned above, group actions in France were created progressively, in an incremental fashion, and according to a sectorial approach. Because of this approach, the procedural framework for the different possible group actions is not entirely homogeneous, although it shares certain fundamental characteristics.
Depending on the type relied upon, group actions can seek to obtain indemnification for loss arising out of a wrongful act, or to bring an end to such an act.
When a group action is initiated, proceedings are organised in a two-phase fashion.
During the first phase, the judge on the merits will consider the admissibility and the merits of the case. If he or she holds that the defendant is liable, the judge on the merits will then determine the criteria defining the group of victims entitled to compensation, the types of losses that can be indemnified, the amount of corresponding damages that can be claimed, and the deadline before which the victims will have to opt in following the decision. To enable victims to come forward, the court will also indicate how its decision is to be published (at the costs of the defendant).45 If the initial claimant so requests, the judge on the merits may also order that negotiations be undertaken with the defendant regarding the level of compensation.46
The second phase of the proceedings is devoted to the indemnification of individual claimants who have opted in after the initial judgment on liability handed down by the court. During this phase, individual claimants who wish to opt in send their claims for damages (either to the defendant or the claimant) and the defendant proceeds to the compensation on an individual basis, according to the criteria set out by the judgment on liability.47 If the court ordered a negotiation, any possible settlement agreement requires the court's approval before it can give rise to compensation of individual claimants.48 If issues arise regarding the compensation of individual claimants, the matter is referred to the court that handed down the decision regarding the defendant's liability.49
It should be noted, however, that the above two-tiered process does not apply to all group actions relating to consumer law, which have their own, simplified procedure. Pursuant to this streamlined process, in such group actions, when the identity and the number of consumers affected is known and when they have suffered similar or identical losses, the court can, after having held the defendant liable, order compensation to be paid directly to the individual consumers according to the conditions set out in the judgment.50 In a case of this kind, the defendant must then contact the affected consumers so that they may accept the compensation they are owed.51
Decisions handed down in group actions have res judicata authority, but only towards the parties that participated in the proceedings.52 The decisions do not, however, have res judicata effects in relation to claims that fall outside the scope of the court's decision.53
If the group action has been brought to obtain an injunction, so as to end a wrongful act by the defendant,54 be it in breach of a statutory or a contractual obligation, the court will consider the merits of the case. If it is satisfied that such an act is taking place and that the defendant must be compelled to cease, the court will render a judgment wherein it orders the defendant to cease the harmful act by a specific deadline, beyond which date it may be ordered to pay fines that will be awarded to the Public Treasury.55
iv Damages and costs
As alluded to above, various types of group actions can allow claimants to seek different kinds of remedies:
- in consumer law and competition law group actions, damages can only be sought in relation to financial losses56 (where appropriate, the judge may order reparation in kind);57
- in healthcare group actions, damages can only be sought in relation to personal injuries;58
- in discrimination-related group actions (including those that relate to discrimination in the workplace), damages can be sought in relation to financial losses and moral prejudice;59
- in environment law group actions, damages can only be sought for personal injuries and financial losses; and60
- in personal data-related group actions, damages can only be sought in relation to financial losses and moral prejudice.61
Obviously, the nature and quantum of the damages that could effectively be awarded, in a given group action, will depend upon several factors, including the remedies sought in the initial writ and the decision as to the defendant's liability handed down by the judge on the merits at the end of the first phase.
Punitive damages may not be awarded under French law.
At the time of writing, and to the best of our knowledge, none of the group actions initiated to date have resulted in damages being awarded by the courts (although in three instances, the parties settled the dispute).
Group actions can give rise to settlements either before proceedings are initiated or during the proceedings themselves.
If a settlement agreement is reached in principle, before a group action is effectively initiated (such as, for instance, after the defendant receiving the pre-action letter specific to group actions), it will nonetheless require the court's approval before it can be enforced. This necessity is to ensure that the terms of the agreement are in line with the interests of the victims represented by the certified entity. The court's decision ratifying the settlement agreement will indicate how the defendant is to inform potential victims that an agreement has been reached, as well as the steps that must be followed for individual victims to opt in and receive the compensation they have been awarded under the settlement agreement.62
Courts can, at the claimant's request, order the parties to participate in settlement talks after the initial judgment on liability has been handed down. This is only possible in group actions for environmental, data protection and discrimination matters (excluding discrimination at the workplace).63 In instances such as these, settlement negotiations have a narrow scope that is set by the court and relates only to the quantum of compensation to be paid out, and not to the principle of the defendant's liability, which has been established.64 For the settlement agreement to be enforceable, it must be ratified by the court, which must be satisfied that its terms are in line with the interests of the victims represented by the claimant. If, however, the court finds that the envisaged agreement is not compatible with the interests of the victims, it may refuse to ratify it and order a new negotiation period. If no settlement agreement is reached, the court will decide on the level of compensation, as it would normally have done, had no settlement discussions been ordered. If, however, the court finds that one of the parties objected to the conclusion of a settlement agreement in a vexatious or dilatory manner, it can fine the offending party for up to €50,000.65
At the time of writing and to the best of our knowledge, there have only been three group action settlements to date:
- The first settlement, which was agreed upon before the group action was introduced and related to claims that the public housing office of the city of Paris had unlawfully charged tenants to pay for their estates' video surveillance costs, provided for the payment, by the defendant, of a total sum of €2 million, to be shared among 100,000 tenants.
- The second settlement, which was reached after the judgment on liability and related to service disruptions suffered by customers of a mobile phone network when it upgraded to 3G service, provided that the defendant pay each of the 141,000 users €12 of compensation (amounting to a total sum of circa €1.7 million).
- The third settlement was reached in connection with a group action initiated by a consumer association against a rental company, because of unfair clauses in the rental contract for mobile home parking plots, including an obsolescence clause preventing renewal and access to the land for vehicles over 15 years old. After several negotiations that took place between December 2017 and March 2018, the association announced on its website that an agreement had been reached with the company, with the result that the disputed clauses had been amended in exchange for the termination of the group action.
iv CROSS-BORDER ISSUES
The recognition and enforcement of foreign class action decisions in France will differ depending on whether the decision was rendered by an EU Member State court or a non-Member State court.
A class action judgment handed down by a Member State court shall be recognised in the other Member States without any special procedure being required,66 although in France it is nevertheless necessary to seek the enforcement of the decision.67 Recognition and enforcement of the foreign decision can, moreover, be refused, following the application of any interested party, if it successfully demonstrates that enforcement would clearly be contrary to the public policy of the Member State where it is being sought.68
A class action judgment handed down by a non-Member State court shall be recognised provided three mandatory conditions are met, namely: (1) the foreign court must have had jurisdiction as a result of obvious ties between the matter, on the one hand, and the state in which it was ruled upon, on the other hand; (2) the judgment at issue must not be contrary to French public policy (with regard to both substantive and procedural law); and (3) the parties must not have fraudulently sought a decision from the foreign court that would have been unattainable under French law.69
In both instances, the main difficulty could arise from possible conflicts between French public policy and foreign class action decisions. One illustration of this possible risk, which has been identified by legal commentators, may be provided by the conflict that would arise if parties tried to obtain the recognition and enforcement, in France, of foreign class action decisions that were rendered as a result of opt-out procedures, as opt-out procedures should be excluded under French law as a matter of public policy (as they limit victims' right of action).70 In practice, however, the question remains open, as French courts have, to the best of our knowledge, never had to rule on the matter.
Discussions regarding the possible creation of a standardised class action regime shared by all Member States were reactivated, within the EU, as a result of the 'Dieselgate' scandal and the Schrems v. Facebook case. For such a regime to be effective, however, it would be necessary to create an EU-wide database containing all final decisions relating to class action disputes. In 2013, the EU Commission recommended that such a database be implemented by the Member States, but only Germany and the United Kingdom have done so to date.
Finally, and as discussed above, the class action landscape could evolve significantly in the EU if the draft directive filed on 11 April 2018 is enacted in its current draft, thereby creating a new class action in all Member States.
v OUTLOOK AND CONCLUSIONS
Since the creation of group actions in France in 2014, a little under 20 such actions have been undertaken.
To date, only two group actions have resulted in damages being awarded and, in both instances, it was as a result of settlements being reached before the second phase of the group action (i.e., the allocation of damages to individual claimants once they had opted in).
While certain legal commentators have been rather quick to criticise the various French group actions available, it should, however, be borne in mind that group actions are still very much in their infancy, within the French legal landscape. Indeed, they were only created in 2014 and, since then, various types of remedies (such as injunctions), additional rights of action (i.e., claims as a result of personal injuries or moral prejudice) and new types of group actions (such as group actions relating to healthcare or personal data) have been created at a steady pace. It is, therefore, still too early to look back and take stock, not least as some of the more recent legal mechanisms have yet to be tested by case law.
Moreover, one of the main objectives the French legislature had in mind when creating group actions was to create proceedings – and the threat of potentially significant damages – that would constitute a sizeable deterrent for corporate entities and induce them to carry out audits, promote best practices and stray from practices or contractual terms that could be deemed to be unfair. While it is too early to tell how big and effective a deterrent French group action will be, in the medium term, the fact that they have already led to settlement figures in the millions (albeit the low millions) does suggest that corporate entities that choose to ignore the possible financial and reputational liabilities that group actions could represent will be doing so at their own risk.
This is a fast-evolving area of French law, and its evolution will no doubt be closely watched by consumers, corporate bodies and the legal community alike. As mentioned above, there are currently a certain number of potentially significant developments on the horizon, such as a possible EU directive on class actions or a new kind of French group action, that could be initiated by groups of consumers, rather than accredited legal entities. If either or both these envisaged mechanisms became a reality in the near to medium term, one could reasonably expect them to constitute significant developments, capable of generating and accelerating further changes.
1 Alexis Valençon and Nicolas Bouckaert are partners at Kennedys. The authors are grateful to Madeleine Motte for her invaluable assistance in the preparation of this chapter.
2 Law No. 2014-344 of 17 March 2014. It should be borne in mind, however, that while French group actions share some common traits with US class actions, they differ in certain key respects and it is therefore best to approach them as a distinct and autonomous mechanism, sui generis, rather than try to understand them by comparison to or via the prism of the US regime.
3 Cour de cassation (Supreme Court), Com., 5 February 1969.
4 Article 328 et seq., Code of Civil Procedure.
5 Article 367 et seq., Code of Civil Procedure.
6 Cour de cassation, Civ. 3, 4 November 2004, No. 03-11377 and 4 May 2011, No. 10-11863.
7 Article L621-1 et seq., Consumer Code.
8 Article L621-8, Consumer Code.
9 Article L622-1, Consumer Code; Article L452-2, Monetary and Financial Code; Article L142-3, Environmental Code.
10 Article L1235-8, Labour Code.
11 Cour de cassation, Civ.1, 26 May 2011, No. 10-15676.
12 Parliamentary Opinion No. 1123, 11 June 2013, MP S. DENAJA, p. 8.
13 ibid., p. 9.
14 Law No 2016-41 of 26 January 2016.
15 Article 60 et seq., Law No. 2016-1547 of 18 November 2016. Group actions that relate to administrative matters are brought before administrative courts, whereas the other types of group actions, which all relate to civil law matters, are heard before civil courts (i.e,. the High Court having territorial jurisdiction over the matter at issue).
16 The vast majority of these accredited legal entities is made up of associations, but several labour unions have also been accredited, for certain types of group actions.
17 Article 217, Draft Bill No. 878 regarding equality and citizenship, adopted by Parliament on 22 December 2016.
18 Constitutional Council, 26 January 2017, Decision No. 2016-745.
19 Court of Appeal of Paris, 9 November 2017, Appeal No. 16/05321.
20 Nanterre High Court, 14 May 2018, Case No. 14/11846.
21 Article 138, Law No. 2018-1021 of 23 November 2018.
22 Cour de cassation, Civ. 1, 19 June 2019, No.18-10424.
23 Cour de cassation, Civ. 1, 27 June 2018, No. 17-10891.
24 Paris High Court, 3 October 2018, Case No. 15/07353.
25 Amendment 17, new recital 24 of the preamble.
26 Article 62, Law No. 2016-1547 of 18 November 2016.
27 Article L623-1, Consumer Code.
29 Article L1143-2, Healthcare Code.
30 Article L142-3-1, Code of the Environment.
31 Article 10, Law No. 2008-496 of 27 May 2008; Article 62, Law No. 2016-1547 of 18 November 2016; Article L1134-8, Labour Code; Article L77-11-3, Code of Administrative Justice; Article 37, Law No. 78-17 of 6 January 1978.
32 Article 2224, Civil Code.
33 See, for instance, Article L623-27, Consumer Code; Article 77, Law No. 2016-1547 of 18 November 2016.
35 Article L623-1, Consumer Code.
36 Article L1143-2, Healthcare Code.
37 Article 10, Law No. 2008-496 of 27 May 2008.
38 Article L1134-7, Labour Code; Article L77-11-2, Code of Administrative Justice.
39 Article L142-3-1, Code of the Environment.
40 Article 37, Law No. 78-17 of 6 January 1978.
41 Article 64, Law No 2016-1547 of 18 November 2016; Article L77-10-5, Code of Administrative Justice. This requirement for a letter before action does not apply to group actions in healthcare, competition law or consumer law.
42 Article L1134-9, Labour Code.
43 See Section III.iii.
44 Article L623-14, Consumer Code.
45 Articles 66 and 67, Law No. 2016-1547 of 18 November 2016; Article L623-4-7, Consumer Code.
46 Articles 68, 72 and 73, Law No. 2016-1547 of 18 November 2016. Note, however, that this option is not available in group actions relating to consumer law, labour law and healthcare matters.
47 Articles 69 and 70, Law No. 2016-1547 of 18 November 2016; Article L623-18, Consumer Code.
48 Article 73, Law No 2016-1547 of 18 November 2016.
49 Articles 71 and 73, Law No. 2016-1547 of 18 November 2016.
50 Article L623-14, Consumer Code.
51 Article L623-15, Consumer Code.
52 Article L623-28, Consumer Code; Article 78, Law No. 2016-1547 of 18 November 2016.
53 Article L623-29, Consumer Code; Article 79, Law No. 2016-1547 of 18 November 2016.
54 Possible only in class actions on matters of discrimination, environmental law and personal data.
55 Article 65, Law No. 2016-1547 of 18 November 2016.
56 Article L623-2, Consumer Code.
57 Article L623-6, Consumer Code.
58 Article L1143-2, Healthcare Code.
59 Article 62, Law No. 2016-1547 of 18 November 2016; Article L1134-8, Labour Code; Article L77-11-3, Code of Administrative Justice.
60 Article L142-3-1, Code of the Environment.
61 Article 37, Law No. 78-17 of 6 January 1978.
62 Article L623-22 and -23, Consumer Code; Articles 75 and 76, Law No. 2016-1547 of 18 November 2016.
63 Article 1134-10, Labour Code.
64 Article 72, Law No. 2016-1547 of 18 November 2016.
65 Article 73, Law No. 2016-1547 of 18 November 2016.
66 Article 36, 'Brussels Recast', EU Regulation No. 1215-2012 of 12 December 2012.
67 Article 509 et seq., Code of Civil Procedure.
68 Article 45 1.(a), 'Brussels Recast', EU Regulation No. 1215-2012 of 12 December 2012.
69 Cornelissen v. Avianca, Cour de cassation, 1st civil division, 20 February 2007, appeal No. 05-14082.
70 M-L NIBOYET, Action de groupe et droit international privé, Revue Lamy Droit Civil, No. 32, 1 November 2006. Note, however, that this issue has not been decided by case law, at this stage, as it has not been ruled upon by French courts.