The Class Actions Law Review: France
Introduction to the class actions framework
Class actions analogous to those, for instance, available in the United States did not exist in the French legal landscape before 2014, when a 'group action' mechanism was created by the French legislature.2
Prior to the creation of group actions, however, 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, 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 all:
- brought by accredited legal entities16 acting in the name and interests of individual victims (rather than by the individuals themselves); and
- 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
It is, moreover, interesting to note that it is not under the group action regime that the most successful collective redress action has been brought, to date, as this was done under the guise of the French Data protection law, which entitles specific collective actions. This enabled two consumer associations to bring a joint representative action against Google before the National Commission For Data Protection and Liberties (CNIL), as a consequence of which Google was sentenced to a record €50 million fine by the CNIL. The CNIL's decision was later approved by the French Administrative Supreme Court.22
To date, 22 group actions have been brought (some are still ongoing, while others have settled or been rejected) regarding, among other matters, health issues, data protection, housing, financial services and mobile telecommunications.
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
Over the course of the previous calendar year, one decision was handed down by French courts in group action proceedings and, since the beginning of 2021, a collective of NGOs has issued a formal notice against the French state on the issue of racial discrimination by law enforcement, which may give rise to a group action.
In a decision dated 4 June 2020, the judicial tribunal of Versailles ruled on a group action that had been initiated as a result of a recall campaign that had been conducted by BMW in 2014 regarding specific motorcycle models.23 The action had been brought because the group of consumers disputed the compensation amount that had been offered by BMW in conjunction with its recall. While the court ultimately rejected the claims on the merits (ruling that the alleged defects had not been proven by the consumers' association, and could not be inferred from the mere fact that a product recall had been conducted), it is a noteworthy decision in that it was seen to broaden the scope of group actions, as it was the first time a court recognised the admissibility of a group action based on the legal guarantee owed by producers in respect of their products' hidden defects.
More recently, on 27 January 2021, 6 NGOs24 brought a group action against the Prime Minister, the Ministry of Internal Affairs and the Ministry of Justice on the issue of discriminatory identity controls by police forces. The NGOs are requesting the state to take measures to fight discriminatory identity checks conducted by the police. As a first step, the government was given a formal notice to take measures. If no action is taken within four months, the group will be entitled to refer the matter before the competent court.
Some recent developments that occurred before 2020 are also worth noting.
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'. To date, the status of these proceedings is not known.
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. To date, the Internet Society France is yet to summon the latter before the courts.
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, two against pharmaceutical companies regarding drugs and contraceptives, one against a computer search engine regarding personal data and six regarding discrimination, mostly against public entities.
iii Upcoming legislation and announced future changes to the class actions sector
Potentially significant legislative changes, which are currently being reviewed or debated, could lead the current French group action regime to evolve in an important manner in the near future.
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 its review is still underway.
More recently, a parliamentary fact-finding mission was launched in July 2019, the findings of which were presented in a final report, handed down in June 2020.25 The report found that the group action regime had led to mixed results, and concluded that consumers would be better protected if the various group actions available under French law were simplified and unified. The report suggested 13 possible measures aimed at increasing the effectiveness of group actions by simplifying access, ensuring better compensation for the victims or reducing the time taken to bring cases to trial. Its key suggestions are:
- a common framework for all class actions in civil matters in the French Civil Code, as well as a unified procedure for class actions in administrative matters;
- lightened conditions to be able to bring collective actions (such as reduction to a minimum of two years' seniority for the associations, extension to legal entities);
- all losses to be subject to damages regardless of their nature;
- civil fines to be ordered;
- special courts to be given jurisdiction over class actions; and
- reform of procedural costs (so that judges take into consideration the sums actually incurred by the winning party, whether these be legal fees or internal costs relating to the procedure).
As a result of this report, on 15 September 2020, several members of Parliament presented a bill aimed at improving the group actions regime.26 The draft bill includes most of the proposals found in the working group's final report. It is now waiting to be examined by the Commission on constitutional law, legislation and general administration of the French Republic. If this bill is enacted in its current draft, it would constitute a significant overhaul of the existing group actions regime.
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. After a substantial rewriting in November 2019, the final draft of Directive was adopted by the Counsel on 21 October and by the European Parliament on 24 November 2020, thereby creating a representative action procedure in the EU.27
Some legal commentators have opined that the Directive could be seen as a compromise solution, as a high number of provisions leave a significant amount of discretion to individual Member States. Each Member State must adopt a representative action procedure for the protection of consumer's collective interest by allowing its designated qualified entities to bring domestic or cross-border representative actions, or both. Although it establishes strict designation criteria for cross-border actions (source of financing, structure, statutory object, solvency, activity), those for national actions are defined by reference to national law. The qualified entities may seek injunctive or redress measures, or both, on behalf of a group of consumers that have been harmed by a commercial entity. They may bring actions in the event of infringement to the Union law in the fields of financial services, travel, tourism, energy, health, telecommunications and data protection. Member States have the choice to establish either an opt-in or an opt-out system for their qualified entities to bring the representative action (opt-in is, however, excluded for redress measures).
In order to prevent abusive recourses, the Directive also lays down clear rules on the apportionment of legal costs in a representative action for damages, based on the 'loser pays' principle. It further introduces the possibility for the court or administrative authority to order the disclosure of evidence by the defendant, the qualified entity, or a third party subject to compliance with EU and national law. To avoid conflicts of interest, it imposes a number of transparency requirements on qualified entities, in particular as regards their financing by third parties when this is possible under national law.
This Directive should be implemented in all Member States before 22 December 2022. However, since it is a minimum harmonisation Directive, it does not compel Member States to replace or modify existing collective actions mechanisms, and they will, therefore, be able to implement the Directive either by updating their existing procedures or by creating dedicated regimes, as necessary.
Most of these Directive's provisions are similar to, or consistent with, those that govern French group action regimes. Some commentators have, therefore, opined that the greatest potential source of changes to the existing French regime might not be the implementation of the Directive, but, rather, the possible adoption of the two draft bills, discussed above, which are currently being debated.
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.28 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.29
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.30 In contrast, in healthcare group actions, claims can only be brought as a result of personal injuries.31 Other types of group actions, however, such as environmental group actions, can allow damages to be awarded for both physical injuries and financial losses.32 Finally, in group actions relating to discrimination and data protection, damages may be awarded for moral harm or financial losses.33
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 a common procedure is implemented for all different types of group actions, as contemplated by the above-mentioned recent report and bill.
The limitation period that applies to group actions is the standard five-year period that applies in French civil law,34 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.35 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.36
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,37 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;38
- 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);39
- 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;40
- 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;41 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.42
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.43 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.44
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 liability45 (there is, however, an exception to this rule is the derogatory regime of the simplified group actions relating to consumer law).46
iii Procedural rules
As mentioned above, group actions in France were created progressively, in an incremental fashion, and according to a sectoral 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).47 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.48
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.49 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.50 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.51
It should be noted, however, that the above two-tiered process does not apply to all group actions pertaining to consumer law, which have their own, simplified procedure. Pursuant to this streamlined process, in these 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.52 In a case of this kind, the defendant must then contact the affected consumers so that they may accept the compensation they are owed.53
Decisions handed down in group actions have res judicata authority, but only towards the parties that participated in the proceedings.54 The decisions do not, however, have res judicata effects in relation to claims that fall outside the scope of the court's decision.55
If the group action has been brought to obtain an injunction, so as to end a wrongful act by the defendant,56 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.57
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 losses58 (where appropriate, the judge may order reparation in kind);59
- in healthcare group actions, damages can only be sought in relation to personal injuries;60
- 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;61
- in environment law group actions, damages can only be sought for personal injuries and financial losses; and62
- in personal data-related group actions, damages can only be sought in relation to financial losses and moral prejudice.63
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.64
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).65 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.66 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 €50,000.67
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 before 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.
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,68 although in France it is nevertheless necessary to seek the enforcement of the decision.69 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.70
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.71
In both instances, the main difficulty could arise from possible conflicts between French public policy and foreign class action decisions. One illustration of this risk would be where a court decision awarded punitive damages. Even though the principle of punitive damages is not directly contrary to French public policy, the Supreme Court rules that, if the amount awarded is disproportionate to the damage suffered and to the breaches of the debtor's contractual obligations, the decision is contrary to French public policy and, therefore, will not be recognised.72 Another 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).73 In practice, however, the question remains open, as French courts have, to the best of our knowledge, never had to rule on the matter.
While the adoption of cross-border representative actions in the EU, pursuant to the Directive, could have been one of the Directive's main contributions, it seems as though the Directive may not have been sufficiently bold. It does not explicitly authorise an association to act on behalf of all European consumers for the same infringement on the European market. Therefore, the same violation of consumer rights at the EU level will still require a plurality of representative actions in different Member States, or that a cross-border action is brought by a plurality of qualified entities from different Member States.
Moreover, for collective redress to be more transparent and effective at the EU level, it would be necessary to create a database within the EU containing all final decisions of class action disputes – a system that was suggested by the EU Commission in 2013, which recommended that such a database be implemented by each Member State, but, thus far, only Germany and the United Kingdom have done so to date, and the EU Directive has not turned this into an obligation, but only formulates this as a possibility for the Member States.74
Outlook and conclusions
Since the creation of group actions in France in 2014, 22 group actions have been undertaken.
To date, no judgment on liability has been rendered, and only three group actions have resulted in compensation for the claimants, by way of settlements.
On the one hand, one should bear 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 might be, 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. On the other hand, and notwithstanding the above, the length and complexity of the procedure seems to have refrained consumers from making the most of these types of actions, pushing them to rely on alternative types of actions, which has, in turn, increasingly lead legislators to suggest a significant overhaul of the current regime. It is telling that two draft bills aimed at reforming French group actions are currently being reviewed. One can, therefore, surmise that collective redress will remain a fast-evolving area of French law, in the years to come, and that its evolution will no doubt be closely monitored by consumers, corporate bodies and the legal community alike.
It may also be borne in mind that 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, therefore, induce them to carry out audits, promote best practices and stray from practices or contractual terms that could be deemed to be unfair. This aim has been achieved to a certain extent, as observers have already noted that certain sectors (telecommunications, energy and financial services) had amended their standard practices and contractual terms after the entry into force of group actions, illustrating their deterrent effect. In addition, and 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.
1 Alexis Valençon and Nicolas Bouckaert are partners at Kennedys. The authors are grateful to Marie Lepoivre-Marcillat 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 Article 38, Law No. 78-17 of 6 January 1978; Conseil of State 19 June 2020, Decision No. 430810.
23 Judicial Tribunal of Versailles, 4 June 2020, No. 15-10221.
24 Amnesty Internationale ; Maison communautaire pour un développement solidaire (MCDS); Pazapas; Réseau – Égalité Anti-discrimination Justice-interdisciplinaire (Reaji), Human Rights Watch and Open Society Justice Initiative.
25 Information report No. 3085 regarding the assessment and outlook for group action, 11 June 2020.
26 Law proposal No. 3329 for a new group action regime, registered at the National Assembly on 15 September 2020.
27 EU Directive No. 2020/1828, 25 November 2020.
28 Article 62, Law No. 2016-1547 of 18 November 2016.
29 Article L623-1, Consumer Code.
31 Article L1143-2, Healthcare Code.
32 Article L142-3-1, Code of the Environment.
33 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.
34 Article 2224, Civil Code.
35 See, for instance, Article L623-27, Consumer Code; Article 77, Law No. 2016-1547 of 18 November 2016.
37 Article L623-1, Consumer Code.
38 Article L1143-2, Healthcare Code.
39 Article 10, Law No. 2008-496 of 27 May 2008.
40 Article L1134-7, Labour Code; Article L77-11-2, Code of Administrative Justice.
41 Article L142-3-1, Code of the Environment.
42 Article 37, Law No. 78-17 of 6 January 1978. However, Article 38 entitles any association or organisation whose statutory purpose concerns the protection of rights and freedoms to bring a joint representative action for breaches of this Law.
43 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.
44 Article L1134-9, Labour Code.
45 See Section III.iii.
46 Article L623-14, Consumer Code.
47 Articles 66 and 67, Law No. 2016-1547 of 18 November 2016; Article L623-4-7, Consumer Code.
48 Articles 68, 72 and 73, Law No. 2016-1547 of 18 November 2016. Note, however, that this option is not available in group actions pertaining to consumer law, labour law and healthcare matters.
49 Articles 69 and 70, Law No. 2016-1547 of 18 November 2016; Article L623-18, Consumer Code.
50 Article 73, Law No 2016-1547 of 18 November 2016.
51 Articles 71 and 73, Law No. 2016-1547 of 18 November 2016.
52 Article L623-14, Consumer Code.
53 Article L623-15, Consumer Code.
54 Article L623-28, Consumer Code; Article 78, Law No. 2016-1547 of 18 November 2016.
55 Article L623-29, Consumer Code; Article 79, Law No. 2016-1547 of 18 November 2016.
56 Possible only in class actions on matters of discrimination, environmental law and personal data.
57 Article 65, Law No. 2016-1547 of 18 November 2016.
58 Article L623-2, Consumer Code.
59 Article L623-6, Consumer Code.
60 Article L1143-2, Healthcare Code.
61 Article 62, Law No. 2016-1547 of 18 November 2016; Article L1134-8, Labour Code; Article L77-11-3, Code of Administrative Justice.
62 Article L142-3-1, Code of the Environment.
63 Article 37, Law No. 78-17 of 6 January 1978.
64 Article L623-22 and -23, Consumer Code; Articles 75 and 76, Law No. 2016-1547 of 18 November 2016.
65 Article 1134-10, Labour Code.
66 Article 72, Law No. 2016-1547 of 18 November 2016.
67 Article 73, Law No. 2016-1547 of 18 November 2016.
68 Article 36, 'Brussels Recast', EU Regulation No. 1215-2012 of 12 December 2012.
69 Article 509 et seq., Code of Civil Procedure.
70 Article 45 1.(a), 'Brussels Recast', EU Regulation No. 1215-2012 of 12 December 2012.
71 Cornelissen v. Avianca, Cour de cassation, 1st civil division, 20 February 2007, appeal No. 05-14082.
72 Court of Cassation, 1st civil division, 1 December 2010, No. 09-13.303.
73 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.
74 Article 14, EU Directive No. 2020/1828.