Class action/collective redress mechanisms were only introduced into French law in 2014, which is quite recent compared to the USA. The system was subject to many discussions from the 1980s onwards, but none of them were successful.
In 2005, a special committee was formed and began working on the potential introduction of class actions in the French legal system. However, it took nine years before lawmakers finally adopted legislation authorising class action mechanisms. The Hamon Law was enacted on 17 March 2014 (Law No 2014-344) and a decree implementing this Law (Decree No 2014-1081 of 24 September 2014) entered into force in October 2014. The mechanism was governed by the French Consumer Code as it was initially only applicable to consumer law matters (damage resulting from the sale of goods, the provision of services or anti-competitive practices). The actions could only be brought by 15 consumer associations that were duly authorised and are representative at the national level; they were and are still not available to individual claimants.
By two laws of 2016, the French class action regime was extended to health and cosmetics (Law No 2016-41 of 26 January 2016), discrimination, the environment, and the protection of personal data (Law No 2016-1547 of 18 November 2016). Each of these class actions are closed to individual claimants and only open to authorised entities such as associations complying with specific criteria of representation and activity or trade unions (depending on the type of class actions). Articles 848 and following of the French Code of Civil Procedure, introduced by Decree No 2019-1333 of 11 December 2019, specify the procedural rules applicable to French class actions, except for consumer class actions, which are still regulated by specific procedural rules set out in Articles L 623-1 and following of the French Consumer Code.
In spite of this extension, very few class actions have been initiated in France: a total of 21, 14 of which concerned consumer law and were limited to economic damage were recorded between the introduction of the class actions in France in 2014 and June 2020. While there is no official record of class actions in France, according to the Observatory of Class Actions (Observatoire des Actions de Groupe), 32 group actions have been launched to date. Furthermore, it is public knowledge that a company was held liable in a class action for the first time on 5 January 2022 by the Paris Tribunal Judiciaire (Civil Court – TJ). This action was a class action in the health area in which the liability of the manufacturer of Depakine, ie, Sanofi, was sought. The claimant association alleged that this medicine caused physical malformations and neurodevelopmental disorders in utero in foetuses of pregnant women treated with this medicine. The TJ held the manufacturer liable, which is the first time in a French class action. Appeals have been lodged both by the claimant and the defendant, so the proceedings are still ongoing.
The French collective redress mechanism is very different from the class action system in the USA.
First, the scope of the French class action is limited to certain types of issues: consumer rights, health and cosmetics, discrimination, protection of personal data and the environment. On the contrary, in the USA, the scope of class actions is much broader: consumer law, securities law, health, the environment, business law, discrimination, infringement of fundamental rights, etc. In the USA, many class actions concern issues pertaining to overtime or working hours for example, which is not possible in France.
Secondly, only authorised associations or trade associations can initiate a class action in France, unlike in the USA where they can be initiated directly by an individual. For example, for consumer class actions, only 15 associations are authorised. In France, authorised associations have to gather a specific group of consumers that they will represent while the USA does not impose this prerequisite.
A third major difference relates to the opt-in/opt-out system. In the opt-out system in force in the USA, a person who shares a common interest in the proceeding is automatically part of the class, unless that person expressly chooses not to participate. On the contrary, in the opt-in system in force in France, each person who wants to be part of the action must actively take steps to join the group.
On 24 November 2020, the European Parliament approved the new Directive on representative actions for the protection of the collective interests of consumers (the "Directive" or the "EU Directive on Collective Redress"), presented by the European Commission in April 2018. Member states have until 25 December 2022 to adopt and publish the laws, regulations and provisions necessary to comply with the Directive and until 25 June 2023 to start applying them.
The purpose of the Directive is to ensure the harmonised and effective enforcement of consumer protection laws to safeguard the interests of consumers, while providing for sufficient controls against malicious prosecution. Therefore, the EU class action only applies when the interests of consumers are at stake.
It is important to keep in mind that the aim of the Directive is not to replace or modify existing class actions in member states provided that these mechanisms already meet the requirements of the Directive. In France, the existing collective redress mechanism already meets some of the EU requirements (eg, there is already an action in consumer law, and the action must be brought by approved associations, which are non-profit entities, like the “qualified entity” in the Directive).
However, some changes could be required in order to meet other conditions set out in the Directive (eg, while in most class actions the associations must have been established for at least 3 or 5 years in France, the Directive requires qualified entities to have been established for only 12 months).
To date, no proposal for a law transposing the Directive has been issued so no changes can be anticipated at this stage. A bill for a new group action regime was submitted to the National Assembly in September 2020, but failed to be examined by the National Assembly as the EU Directive on Collective Redress was issued a few months later. This bill could, however, be the basis for potential discussions at the level of the National Assembly to implement the EU Directive. This bill suggested measures such as the appointment of a TJ with special jurisdiction (and not all the TJs in France as is the case today) to deal with class actions or the abolition of specific class action regimes (as contained in the French Consumer Code for example) in favour of one harmonised regime.
In any case, the Directive will not have a major impact since it does not impose an opt-out or opt-in system on EU member states. Each member state is free to choose, and France will probably not change to an opt-out mechanism. Furthermore, the Directive excludes the opt-in mechanism with regard to injunctions (Article 8) and only allows opt-out mechanisms which include consumers who have their usual residence in the member state where they are located (Recital 45, Article 9).
The first law governing the French collective redress mechanism is Law No 2014-344 of 17 March 2014 (the so-called Hamon Law, named after the minister who supported its adoption), enacted by Decree No 2014-1081 of 24 September 2014 which introduced the first type of class actions in France, ie, consumer class actions. The provisions of this Law have been transposed into the French Consumer Code (Articles L 623-1 and following and R 623-1 and following).
Another legal basis for class actions in France is Law No 2016-41 of 26 January 2016 on the modernisation of the healthcare system. This Law regulates class actions in the health and cosmetics field.
The last specific law on class actions in France is Title V of Law No 2016-1547 of 18 November 2016, known as the Law on the modernisation of the justice in the 21st century and its implementing Decree No 2017-888 of 6 May 2017. This Law extends class actions to three new fields: discrimination (particularly discrimination at work), data protection and the environment.
Apart from specific provisions set out in the specific laws and decrees, class actions are governed by the general French rules on tort liability and civil procedure.
In France, collective redress mechanisms are regulated by areas of law. They exist in the fields of health and cosmetics, environment, discrimination, data protection and consumption.
Class actions in the health area can be brought by health user-approved associations to obtain compensation for the individual physical damage only suffered by health users who are in an identical or similar situation. This situation may result from a failure to comply with legal obligations or a breach of legal obligations by a producer, supplier or service provider producing, supplying or providing services relative to the products mentioned in Article L 5311-1 of the French Public Health Code. This Article lists, for example but not exclusively, medicinal products, cosmetic products, contraceptive products, non-corrective eye lenses or tattoo products, which is a rather broad field of application.
Class actions in the environmental area seek to obtain an injunction to stop a nuisance or to claim compensation for physical damage or material losses resulting from damage caused to the environment. This type of class action is open to two or more people placed in an identical or similar situation caused by the violation of legal obligations or the failure to comply with legal obligations relating to the protection of nature and the environment. The class action may be brought by any approved environmental protection association (Articles 142-2 to 142-3-1 of the French Environmental Code).
There are two types of class actions in the area of discrimination. The class action aims either to obtain an injunction to stop a nuisance, or obtain compensation for damage suffered by several people caused by discrimination related to their individual characteristics (origin, gender, family situation, opinion or physical appearance, for example). The first action is a general action open for any discrimination and must be brought by associations specialising in the fight against discrimination that have existed for at least five years (Article 10 of the Law of 27 May 2008 on the fight against discrimination). The second action is specific to the discrimination caused by a public or private employer and may be brought by any trade union or association specialising in the fight against discrimination that has existed for at least five years.
Class actions in the field of data protection allow individuals to obtain the cessation of a nuisance resulting from a breach of Law No 78-17 relating to data processing, files and freedoms (such as a security breach of an operator or one of its subcontractors) and to obtain compensation for material and moral losses. No compensation for physical damage can be obtained via this specific mechanism.
Class actions in consumer affairs allow consumers who have suffered the same injury from the same professional to join and take legal action via an association. Only 15 consumer associations have been duly authorised at a national level.
A class action, as it exists under French law, enables groups of individuals to collectively sue a defendant or a group of defendants, without separately having to file a case or resort to a lawyer. The people composing the groups of individuals must be in a similar or identical situation and must suffer from damage caused by the same defendant or the same group of defendants.
In a Ministerial Circular dated 26 September 2014 presenting the provisions of the Law of 17 March 2014 that introduced class actions in France, the French minister of justice defines class actions as a right of action of a particular nature granted by the Law to certain identified people who may, under certain conditions, initiate such an action in the fields of consumer and competition law. Today, class actions are available in other areas, such as data protection or the environment.
Only nationally representative and approved associations are entitled to represent individuals and bring a class action and only for the following purposes:
In France, a group action must be initiated by a duly approved association by way of a writ of summons. Different criteria are set in the different types of class actions for an association to be approved. For example, for consumer class actions, there are currently 15 consumer associations authorised to bring group actions, listed on the Ministry of the Economy’s website and in the Ministerial Circular dated 26 September 2014. For class actions in the environmental area, the association must be an environmental protection association that has existed for at least three years and has a statutory activity dedicated to the environment or an association dedicated to the defence of victims of physical injury or the defence of the economic interests of its members.
The relevant court for the group action is the TJ. The association must file suit in the court of the defendant's domicile or, if the defendant is not in France, in the TJ of Paris. If there are several defendants, the association can choose between the different places of residence of the defendants.
There are two different procedures applicable for class actions: (i) the standard procedure, and (ii) the simplified procedure.
The standard procedure is a two-step process. After having determined whether the conditions required to bring a class action are met, the TJ will rule on the liability of the defendant. If the defendant is held liable, the TJ will determine the class of people concerned by the class action and make its decision public to allow those persons to opt in. They can do so via the approved association that initiated the procedure and the liable company pays damages to that association. The final step is for the association to distribute the awarded sum between the consumers who opted in.
The simplified procedure allows the defendant held liable by the TJ to directly and individually compensate the affected consumers whose identity and number are known (for example, where the liable company has a client database) and all of the affected consumers who have sustained an economic loss of the same amount. In this type of class action regime, the decision is not made public, and the final decision is notified to each consumer individually, who must then individually accept the compensation.
In France, the standard group action is organised in two steps.
However, before launching the first step, the approved association must give formal notice to the professional to cease or cause to cease the breach or remedy the damage suffered.
At the risk of being inadmissible, the action must be launched at least four months after the formal notice for data protection class actions. This period is increased to six months for environment and discrimination class actions, but no period of time must be observed for health and consumer class actions. The objective is to give the professional time to react.
If no formal notice at all is given, no specific penalty is provided by the applicable laws. However, if the association decides to give formal notice to the defendant, deadlines must be complied with to avoid being inadmissible.
It is recommended that the association gives formal notice to the defendant, in order to avoid the risk of being penalised under the general rules of civil procedure relating to the prior attempt at an amicable resolution of the dispute.
When the proceedings are launched, the aim of the first stage is to obtain a judgment on the merits relating to the liability of the professional. At this stage, the TJ will rule on the liability of the defendant. To do so, the court will:
Based on these points, the TJ will order the appropriate publicity measures to be taken in order to inform the people who may potentially belong to the consumer group. This publicity can only take place when the decision ruling on the group action is no longer subject to appeal.
The second stage of the group action seeks to compensate the victims. Once the ruling has been made public, it will be up to the victims to make themselves known in order to obtain compensation for their damage. To do so, the victims will have to apply, in accordance with the court's decision, directly to the professional, to the consumer association or a third person belonging to a regulated judicial profession chosen by the association and authorised by the court (see Article L 623-8, paragraph 2, of the French Consumer Code for consumer class actions; Law No 2016-1547 of 18 November 2016). It should also be noted that the victim's membership to the group does not prevent them from taking action under ordinary law to obtain compensation for damage not covered by the decision.
A French class action may only be brought by a duly registered association that has existed for at least three or five years and whose purpose is to defend the interests that have been infringed. These requirements must be met by all associations seeking authorisation to bring a class action in France.
To initiate a class action, an association is approved:
In the fields of health, the environment, discrimination and data protection, class actions are available to approved associations but with no requirement of representativeness at a national level. This differs from consumer class actions where an association must be representative at the national level to be approved.
The number of associations who are able to bring a class action in the fields of health, the environment, discrimination and data protection is much higher than the number of associations authorised to bring consumer class actions.
The consequence of this mechanism is that only approved associations can be a party to the proceedings. This means that an individual acting alone cannot bring such an action but will receive compensation at the end of the proceedings if they make themselves known to the association when the ruling on liability is made public by the court.
Furthermore, to bring a group action, the approved association must prove that there are at least two victims in the same situation. Given that victims take part in the proceedings only at the second stage of the process, it is interesting to note that no mandate is given to the association by the victims. Such mandates are only given after the professional has been recognised as liable.
French class action is based on the opt-in system. However, a new form of class action has been introduced by way of an amendment to Articles L 623-14 and R 623-11 and following of the French Consumer Code, known as the "simplified group action". It will apply in cases where the identity and number of victims concerned are known and their loss is identical. In this case, after having ruled on the professional's liability, the court may order them to compensate, directly and individually, the various injured victims. The latter, unaware of the action taken on their behalf, will only be informed of the compensation claim that has been awarded to them after the expiry of the appeals relating to the judgment on liability. They will then be able to "accept to be compensated". While they will come forward to accept and not to refuse the compensation, the difference is purely symbolic: everything will have happened without them being involved in any way.
Health class actions slightly differ from the other types of action since they contain a delayed opt-in system.
Generally, the court will always define a period of time in which people can make themselves known to obtain compensation. This period of time is at least two months and no more than six months. For health class actions, the court must determine the deadline for people to join the class action, which cannot be less than six months and no more than five years (Article L 1143-4 of the French Public Health Code). The period to opt in is, in this case, much longer than in the other types of class actions.
French law does not provide for any rules regarding the size of the group. There are therefore no limits and the group can increase in size as long as victims make themselves known.
The procedure for joining class actions in France is a two-step process. During the first stage, which only seeks to determine the liability of the defendant, the question of joining the group is not relevant because this part of the procedure only takes place between the approved association and the defendant.
During the second stage of the procedure, once the court has made its ruling public, the persons meeting the requirements to take part in the group of victims as defined by the court must make themselves known to the approved association within the period of time defined by the court. A person who misses the time limit set by the court cannot join the procedure at a later date, and the only way for this person to obtain compensation for their damage is to initiate separate proceedings, outside of the framework of a class action. This can be done by way of a “joint representation action”, which is an action that allows an approved association, representative at the national level, to bring a joint action before the court if at least two people have given it a mandate to do so.
The difference with a class action is that the people are already identified before the beginning of the procedure and that they have expressly mandated the association. This action is less technically demanding than a class action.
Class actions are not dealt with by special courts/judges in France. There are no specific procedural aspects. The claimant must be careful to meet the rules of jurisdiction and limitation to not see the action fail on a procedural basis.
In its judgment on liability, should the court consider that the defendant is liable, the court will define the criteria needing to be met to join the group and hence ask for compensation. The court also sets the deadline by which the people meeting such criteria must apply to obtain compensation.
For all the other aspects of the procedure, the court has the same powers as in a standard procedure.
French provisions on class actions do not provide for a maximum length of proceedings. It is therefore not possible to gauge the potential length of class actions based purely on legal provisions.
The only requirement that exists in terms of time under French law pertains to the statute of limitations. However, it should be noted that there are no specific rules on the statute of limitations for class actions. Consequently, the applicable limitation period is the same as in standard procedures, namely five years following the occurrence of the damage. The date of the occurrence of the damage is the date on which the holder of the right to bring the claim becomes aware or should have become aware of the facts enabling them to exercise this right (Article 2224 of the French Civil Code).
However, this limitation period to start the action does not help to determine how long the proceedings will last once launched. As explained, the court will give the parties time to make themselves known. The period of time given by the court will also have an impact on the length of the proceedings. Once the first stages of the proceedings have occurred, potential appeals will further impact the total duration of the action. It is therefore impossible to give an average length of the proceedings given all the factors that can have an impact on the action and given that no collective proceedings have been completely successful in France to date. However, for each action, a provisional procedural timetable will be determined by the court for the parties to be aware of the scheduled length of the procedure. In view of the possible referrals and various procedural incidents possible, this timetable may change considerably as the procedure progresses.
The class action that gave rise to the judgment of 5 January 2022 could be used as an illustration of the length of proceedings: the class action was launched on 2 May 2017, the hearing took place on 22 September 2021, and the judgment on liability was issued on 5 January 2022. The judgment held the professional liable and gave the members of the group five years in which to make themselves known. This five-year period given to the victims to make themselves known was possible as the class action relates to the medicinal product Depakine, meaning it is a class action in the health area. In other types of class actions, the period would have been a maximum of six months (see point 4.4 Class Members, Size and Mechanism (Opt In/Out)). At this stage, the proceedings are supposed to last at least five more years amounting to a total of at least ten years. However, both parties have lodged an appeal against the judgment. The professional did so because of the recognition of its liability and the claimant association because of the definition of the group that it considers too restrictive. The case is therefore still active and will remain so for an unknown period of time, pending the appellate judgment. No publicity of this judgment has been ordered in the conditions laid down by the court as it is not a final judgment.
Generally speaking, all the procedural issues that may arise will lengthen the procedure (questions on the jurisdiction of the court for instance). Some mechanisms, for example, suspensions or interruptions, can occur during the procedure and will considerably lengthen the duration of the proceedings. As explained under 4.7 Length and Timetable for Proceedings, the lodging of appeals can also lengthen the procedure and this can be counted in years, especially as, in France, all cases can be subject to appeal.
Conversely, the acceleration of the procedure can only be done by the mechanism of the simplified class action explained under 4.1 Mechanisms for Bringing Collective Redress/Class Actions.
When it comes to the funding and costs of proceedings, Articles 696 and 700 of the French Code of Civil Procedure provide for mechanisms for determining the burden of costs of the proceedings between the parties.
Article 696 provides that the unsuccessful party bears the costs, fees and taxable charges relating to the proceedings, unless otherwise decided by the court.
Article 700 grants the successful party the right to ask the court to be reimbursed of its expenses by the unsuccessful party. The expenses covered by Article 700 are the ones that are not covered by Article 696, such as lawyer's fees, travel expenses or private expert expenses. This being said, it is never the case that all fees are reimbursed in the scope of French proceedings. The court will instead determine the amount to be granted based on the amount of the claim and “equity”, meaning what it believes to be reasonable fees.
As for third-party funding, there are no specific provisions on the funding of class actions in France. Therefore, general rules on the funding of proceedings apply.
The existing laws and decrees on collective actions do not provide for the possibility for the proceedings to be funded by a third party but neither do they contain provisions prohibiting it. Moreover, the French Supreme Court (Cour de Cassation) rendered a decision on a third-party funding issue in which the Court did not prohibit this mechanism (French Supreme Court, First Civil Chamber, 23 November 2011, No 10-16.770).
It is therefore possible in France for a third party to fund proceedings. Nonetheless, lawyers and parties accepting to proceed with third-party funding must ensure that the secret professionnel (professional privilege) is not violated. The lawyer must also ensure that the third-party funding does not raise any conflict of interest. The EU Directive on Collective Redress deals with third-party funding and provides that the third-party funder must not influence the decisions of the qualified entity and that the third-party funder cannot fund a class action against one of its competitors. These provisions are not implemented into French law at present.
In France, the rules and standards governing the non-disclosure of documents on the grounds of professional privilege are very clear and established. These rules are known as secret professionnel. According to Article 66-5 of the Law of 31 December 1971, all communications between lawyers and their clients (letters, emails and all the documents communicated in this scope) are strictly confidential and cannot be disclosed to third parties.
There are no discovery or disclosure procedures in France as this concept is commonly known in common law countries. However, the court may still order the disclosure of specific documents at the request of a party. These orders can be issued prior to the initiation of the proceedings (Article 145 of the French Code of Civil Procedure) or during the proceedings (Article 138 of the French Code of Civil Procedure). In particular, Article 145 of the French Code of Civil Procedure provides that investigative measures may be ordered if there is a legitimate reason to preserve or establish evidence before the filing of a lawsuit.
In addition, Article L 623-3 of the French Consumer Code specifically provides that for class actions, at any point in the proceedings, the court can take all legal measures to safeguard evidence and order the disclosure of documents, including those held by the defendant.
Different remedies are available through class actions, but the award of damages is the most common one as set out below.
Obviously, the nature and quantum of the damages that could effectively be awarded to a given group will depend on several factors, including the remedies sought in the initial writ of summons and the decision as to the defendant's liability handed down by the court on the merits at the end of the first stage.
Punitive damages do not exist under French law.
Since the creation of group actions in France in 2014, only a few group actions have been filed. To date, only one judgment retaining the liability of the defendant has been rendered very recently but is not definitive as appeals have been lodged, and only three group actions have resulted in compensation for the claimants by way of settlements.
With regard to mechanisms for settling class actions, arbitration, although not expressly prohibited, must be considered unavailable.
The general provisions of the French Consumer Code prohibit clauses that impede legal action by consumers, in particular by requiring them to refer to an arbitral tribunal. There is, therefore, mistrust of arbitration clauses in general consumer law that must be taken into account in class actions.
Indeed, the two laws implementing class actions in France (the Hamon Law and the Law on the modernisation of the justice of the 21st century) do not provide for any provisions regarding arbitration. However, the Hamon Law has integrated into the French Civil Code an Article prohibiting clauses whereby consumers waive the right to exercise a collective action (Article L 623-32 of the French Consumer Code).
Moreover, various Articles governing the jurisdiction of the courts give jurisdiction to the TJ and to administrative courts to hear class actions (Article L 211-9-2 of the French Judiciary Organisation Code; Article R 1143-1 of the French Public Health Code; Article L 77-10-1 and following of the French Administrative Code of Justice; Article 848 and following of the French Code of Civil Procedure).
It is therefore possible to deduce that arbitral tribunals are excluded from hearing class actions.
Mediation as well as negotiations between outside counsel are always options under French law, even in the scope of class actions. Negotiations between outside counsel (which is the only way in France to ensure the confidentiality of the discussions)can happen at any time and often result, if an agreement is reached, in the withdrawal of the claim. Since the Law on the modernisation of justice in the 21st century of 18 November 2016, mediation is highly encouraged by the courts. If this option is chosen, the mediation is led by the approved association and, if an agreement is found with the defendant, the suggested agreement is submitted to the court who will decide whether or not to approve it after having considered whether it is in the interests of those to whom it is intended to apply. If the agreement is approved, it is then made public to allow people to join the class action within the determined deadline.
Like all judgments in France, judgments in class actions can only be enforced when they become final.
The consequence of this in French class actions is that the court, when ruling on the liability of the defendant (first stage), will define the criteria that will allow the identification of the people likely to belong to the group of victims and define the publicity measures for the judgment to allow them to make themselves known. This publicity can only occur when the judgment ruling on the group action is no longer subject to appeal, ie, when the judgment becomes final. Therefore, to enforce judgments on liability, the judgment must be final.
When the judgment on liability is made public, it must contain some mandatory information, consisting of a reproduction of the operative part of the decision, an indication of the type of proceedings that will follow (collective liquidation proceedings or individual procedures for compensation of damage), the contact details of the party or parties to whom each interested party may address their request for compensation, the form, content and time limit within which the request for compensation must be submitted (Article 849-13 of the French Code of Civil Procedure).
The announcement of the judgment must also inform the public that the request for compensation sent to the approved association, official claimant to the proceedings, confers upon it a mandate for the purpose of compensation and, where applicable, for the purpose of representation in order to launch an action for compensation or for the compulsory enforcement of the judgment rendered as a result of such an action. However, this mandate can be revoked at any time by the individual.
In the scope of the enforcement of the judgment, the group can be compensated by the defendant in two different ways. The option that will be applied will be specified in the judgment on liability.
The first way to compensate the group is to apply the “collective liquidation proceeding”. Such an option is applicable when the approved association specifically asks for it during the first stage of the action and if the nature of the damage involved permits it.
This procedure allows for a lump-sum compensation to be awarded to each person in the group. If the court accepts this type of compensation, a negotiation phase will begin during which the approved association and the defendant will attempt to negotiate the amount to be paid to the members of the group. The negotiations should last no longer than one year. If an agreement is found during this period, the court analyses and then approves the agreement. If no agreement is found during this period, the other existing procedure to compensate the group will be applied, namely the individual procedure for compensation of damage.
The “individual procedure for compensation of damage” is used when it is necessary to individualise compensation. In such a case, the victim must either approach the person declared liable (the defendant) or the approved association that handled the proceedings and compensation is awarded on an individual basis. This type of compensation is the only one possible for health and discrimination class actions.
When the second stage of the class action on compensation is closed, if the defendant does not pay the sums owed to each person in the group, the procedure to have the judgment on liability enforced will be led by the approved association. The approved association takes over on the basis of its mandate given by each member of the group and leads the proceedings to have the judgment enforced and the compensation awarded to the victims.
Several policy proposals and reports have been made in recent years with regards to French class actions.
On 17 October 2018, members of the French parliament presented a bill intended to make group actions directly available to groups of citizens. The proposal is that groups of consumers (of at least 100 members) could initiate group actions themselves, without the need to be represented by one of the approved consumer associations.
A parliamentary fact-finding mission was launched in July 2019, the findings of which were presented in a final report issued on 11 June 2020. 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, by providing for a single regime for all group actions, expanding the types of associations that can initiate an action, or authorising associations to publicise an action.
On 15 September 2020, a bill (No 3329) for a new regime governing group actions was submitted to the French National Assembly. This text has never been discussed by the National Assembly as it was issued a few months before the EU Directive on Collective Redress. Indeed, it will not be relevant to discuss such a bill while another reform was supposed to be discussed before 25 December 2022.
The French Bar Association has already indicated that it would be in favour of allowing lawyers to bring class actions, but this has not been successful as yet.
As mentioned under 5.1 Policy Development, some reports have been issued and proposals made but no concrete legislative or regulatory developments related to class actions are expected any time soon in France. There is therefore no legislative reform in progress in respect of class actions in France.
However, the EU collective redress regime is currently being implemented by members states. Although changes are not expected in France due to the fact that French class actions already meet the requirements of the EU Directive, some discussions on the development of class actions may however occur at any time during the implementation period.
Future changes, if any, will probably be suggested to France by the EU. In its report to the European Parliament, the Council and the European Economic and Social Committee dated 25 January 2018, the European Commission recommends, for example, the introduction of "collective out-of-court dispute resolution schemes" that "should take into account the requirements of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters but should also be specifically tailored for collective actions". However, despite the EU's attempts to push member states to further develop their class actions, profound changes will not happen in France in the near future.
From a judicial point of view, the French Supreme Court rendered a decision on 19 June 2019, which clearly limited the scope of the law relative to class actions by excluding the application of class actions to lease contracts, which are governed by a specific law, considering that this type of contract cannot be considered as a supply or service contract within the meaning of Article L 623-1 of the French Consumer Code (French Supreme Court, First Civil Chamber, 19 June 2019, No 18-10.424).
The French class action mechanisms have not been impacted in any way by Brexit.
In the authors' view, the only impact that Brexit could have had on French class actions is on the enforcement of French judgments in the United Kingdom (or on the enforcement of British judgments in France). Indeed, since Brexit, the rules on the recognition of judgments between EU member states no longer apply to the United Kingdom.
No specific provisions on this subject have been issued since the United Kingdom left the EU. Therefore, the enforcement of class action judgments follows the same rules as any other judgments.
On 2 April 2020, the United Kingdom applied to be re-admitted to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. To be admitted, unanimous acceptance from the parties to the Convention is required. Switzerland, Norway and Iceland gave their consent, but the European Commission refused the United Kingdom’s request. The European Commission justified its refusal on the grounds that the Lugano Convention is “meant for states with close regulatory integration with the EU and its view that the Hague Conventions should be used for relations between the EU and third states”. The 2005 Hague Convention on Choice of Court Agreements has already been signed by the United Kingdom but the 2019 Hague Judgments Convention, which was signed by the EU in July 2022, has not yet entered into force.
Contrary to other jurisdictions, more than two years after the beginning of the pandemic in France and after the end of the vaccination campaigns, the COVID-19 pandemic has not led to class action lawsuits related, directly or indirectly, to COVID-19 in France. This is due to the specificity of the French collective redress mechanism which focuses on specific areas only.
To address the COVID-19 pandemic, the French government declared a first state of national health emergency between 12 March 2020 and 23 June 2020 that led to a national lockdown during the same period. This was accompanied by the closure of all courts and administrations. By Order No 2020-560 of 13 May 2020, the French government postponed all legal deadlines for all legal actions, lawsuits, registrations and administrative formalities that were supposed to be carried out during the lockdown period. The Order also applied to the introduction of class actions and any corresponding deadline relative to class actions that had already been introduced.
Introduction of Class Actions in France
Class actions were introduced in France by Law No 2014-344 on consumer protection (the so-called Hamon Law) in 2014. Class actions were first limited to consumer matters and were then extended in 2016 by the Law on the modernisation of justice in the 21st century and the Law on the modernisation of our healthcare system to other matters, namely discrimination, health and cosmetics, data protection and the environment.
The Limited Success of Class Actions in France
Eight years after the introduction of class actions in France, it would appear that the success of class actions has been quite limited if one were just to focus on the number of claims filed and the number of cases where the liability of the defendant has been recognised. The working group dedicated to class actions created by the French National Assembly issued a report on 11 June 2020 in which it stated that the system of class actions in France is disappointing when looking at these criteria. The report states that “[i]n spite of the extension of its scope of application, the outcome of this system is disappointing: only 21 group actions have been launched since 2014, 14 of which were consumer claims, without any business having been found liable as yet. Consequently, class actions have not been at the forefront of significant progress in defending consumers”.
Indeed, although there is no official record of the number of class actions in France, the Observatory of Class Actions (Observatoire des Actions de Groupe) has recorded a total of 32 class actions launched in France since the introduction of class actions in France in 2014.
Most of these class actions are in consumer law matters. The majority were dismissed by the courts as they ruled that the conditions to launch such an action were not met and three were ended by way of settlement. These numbers demonstrate the limited success of class actions in France for plaintiffs.
The figures indeed show an average of four actions launched per year, which is very few compared to the number of class actions launched in the USA for instance.
Settlements were not necessarily financial settlements. For example, in a class action against a company renting car parks for mobile homes whose contract was said to contain unfair clauses, the settlement led to the modification of some clauses of the contract and the redrafting of the entire contract to achieve more balance between the parties.
However, 2022 is an important year for class actions in France since for the first time a court has admitted a class action and rendered a judgment on the liability of the defendant. As an appeal has been lodged, this judgment is not final.
This judgment is of interest as it could revive class actions and show that class actions can be successful for plaintiffs and that the eligibility conditions are achievable. This judgment is also of interest as it provides a first idea of what can be expected by French courts, how they define the group, what kind of publicity of the judgment they will require and the time they will give the victims to make themselves known.
2022, the Year of the First Admission of a Class Action in France
This first successful class action in France is a health class action. The plaintiff is an association named APESAC (Association d’aide aux Parents d’Enfants souffrant du Syndrome de l’Anti-Convulsivant) and its action was launched in 2017 against the Sanofi laboratory before the Paris Civil Court. The plaintiff association brings together women who took the medicine Depakine while pregnant, which would have caused physical malformations and neurodevelopmental disorders in utero in these pregnant women’s foetuses. Depakine is an anti-epileptic drug whose active ingredient is sodium valproate. The plaintiff association argues that the laboratory did not properly inform the women of the risk of taking this drug during pregnancy. Therefore, Sanofi is accused of failing to fulfil its information obligations.
By its judgment of 5 January 2022, the Paris Civil Court declared this class action admissible, which is a first in France. Furthermore, in this judgment, the Paris Civil Court found the laboratory liable and stated that Sanofi had failed in its duty of care, failed in its duty to inform and marketed a defective product.
After ruling that Sanofi was liable, the Paris Civil Court defined two main groups depending on the diseases suffered by the children, with different exposure periods. One group is composed of children who were exposed to Depakine between 1984 and January 2006 and who suffer from congenital malformations. The other group is composed of children who were exposed to Depakine between 2001 and January 2006 and who suffer from neurodevelopmental disorders. The groups are extended to women who were pregnant during the same period and exposed to Depakine and also to any indirect victims who are related to the children or the women and/or have a real emotional bond with them and who can prove that they suffered harm.
The Paris Civil Court gave the victims five years to make themselves known. This five- year period is the maximum period that can be given in health class actions. In other types of class actions, the maximum period is six months. However, the fact that the Paris Civil Court has given the victims five years to make themselves known shows that the courts do not hesitate to provide the maximum period to the victims, which protects them but represents a real risk for the defendants.
The Paris Civil Court also had to define the publicity methods for the judgment to inform the victims of the class action and give them the opportunity to make themselves known.
As many means are at the disposal of the courts, it was impossible before a first judgment to know which kind of means the courts could employ. In its judgment of 5 January 2022, the Paris Civil Court ordered the publication of the judgment in ten specific newspapers, including the details of the persons to contact to join the group, ie, the association, its lawyers and the defendant itself.
In addition to the provisions to be paid by the defendant (to the association and for consignment), other important information given by the Paris Civil Court in its judgment relates to the victims’ loss. The Court ruled that the victims were entitled to a 95% loss of opportunity to choose a less dangerous therapeutic alternative.
Lastly, other important information provided by this judgment, but not by the decision of the judge, is the potential duration of class actions proceedings. Indeed, this action was launched in 2017 and the decision was rendered in 2022, ie, five years later. These five years do not include the time period given to the victims to make themselves known. Therefore, a long period of time may elapse between the introduction of the action and the judgment on the liability. After that, the second stage of the proceedings starts and may also take several more years. This first judgment therefore demonstrates that class actions are not a quick way to obtain compensation.
However, the duration of the proceedings could also be explained in the Sanofi class actions by the amounts at stake. Indeed, the association asked, but did not obtain, the consignment of EUR400 million by Sanofi. A judgment on such an important case both because of the amounts at stake and because of the sensitivity of the subject should be rendered after a period of time long enough to allow the parties to prepare their submissions and respond to each other.
These proceedings are, however, expected to take longer as they are now pending before the Court of Appeal and no estimate of time can be made. Indeed, the debates will resume before this Court and no precedent exists as it is the first time that appeals have been lodged on a judgment admitting a class action and recognising the liability of the defendant.
This first decision on the admission of a class action therefore provides a good picture of what a class action in France could offer, even if an appeal has been lodged and could lead to a different outcome.
Sanofi has lodged an appeal because it challenges the Court's ruling of liability. The plaintiff (APESAC) has lodged an appeal because it challenges the exposure periods retained by the Paris Civil Court.
2022, the Year of the Transposition of the European Directive into Member States’ Legislation
2022 is also set to be a landmark year for class actions in France as it is the deadline for transposing into national law EU Directive 2020/1828 of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC.
According to Article 24 of the Directive, member states should adopt the Directive by 25 December 2022 and apply the transposed regime to class actions launched from 25 June 2023. Changes in the French legal system could happen this year, however, as at the time of drafting this article, ie, three months before the deadline, no bill on class actions has been submitted to the French National Assembly.
It is worth noting that in September 2020, a bill was submitted to the French National Assembly but was not examined as it was only a few months before the adoption of the EU Directive. The bill suggested measures to simplify the French class actions regime. For example, to date, each type of class action is regulated by different regulations (the Consumer Code, the Labour Code, the Environmental Code, etc) and no specific court has jurisdiction to rule on class actions. As such, among the class actions recorded by the Observatory of Class Actions, some have been launched before the Paris Civil Court, others before the Lyon Administrative Court, the Bordeaux Administrative Court and the Nancy Administrative Court. The main aim of the bill was to introduce a unified procedural regime among the different types of class actions and to assign jurisdiction regarding class actions to specific courts.
If there is an intention by the legislator to implement the Directive into French law, the taking up of this bill could be a starting point in the transposition of the Directive, rather than drafting a bill from scratch.
However, there is nothing to suggest that this is the strategy that will be adopted, notably because the admission of the Sanofi class action has demonstrated that the French class actions regime could work.
France has already been subject to disciplinary sanctions by the European Court of Justice for the late implementation of a Directive (the Directive on GMOs). However, the transposition of the EU Directive on Collective Redress is not expected to lead to further penalties as no major changes are required from the French legislator when looking at the mechanism that already exists, even if France is also criticized at EU level for not recording “enough” cases.
It should not be forgotten that the political agreement obtained at EU level illustrates the fact that the main goal of the authorities is to increase the number of claims and not to focus on the fact that standard civil liability principles should apply.
Indeed, the press release on the agreement obtained notably states the following.
While the statement also mentions the fact that there should be a "loser pays principle" and the possibility to quickly dismiss manifestly unfounded cases, based on experience, this is rarely a principle that is fully applied by civil law courts, especially when the plaintiffs are NGOs and/or individuals.
As has been discussed in this article, 2022 has been the year of the first admission of a class action in France and should see all EU Member States having a collective redress mechanism available to plaintiffs. It will be interesting to analyse in the next few months which choices are made by the different member states, including France.