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 (Act 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 is 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. Indeed, while there is no official record of class actions in France, according to the Observatory of Class Actions (Observatoire des Actions de Groupe), 37 group actions have been launched since 2014. 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 (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. Appeals have been lodged both by the claimant and the defendant, so the proceedings are still ongoing. While not definitive, this judgment is the first out of the 37 group actions already launched in France in which the defendant has been held liable (many of the group actions 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. In contrast, the scope of class actions in the USA is much broader, encompassing 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.
Second, 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. In contrast, the French opt-in system requires each person who wants to be part of the action to 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 had 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 necessary to meet other conditions set out in the Directive (eg, while in most class actions the associations must have been established for at least three or five years in France, the Directive requires qualified entities to have been established for only 12 months).
As of the last months before the December 2022 deadline, France had not issued any proposal, since its laws already largely comply with the Directive. As a result, no bill was expected. However, on 15 December 2022, a new bill was introduced, aiming not just to align with the Directive but to overhaul France’s group action framework entirely. This move was prompted by concerns within the French National Assembly that the existing mechanism was overly complex and impeded the success of class actions. The proposed reform seeks to streamline the system for greater efficiency, gauged by the number of actions initiated.
The primary aim of the bill is to simplify the class action procedure. It intends to make specific courts the exclusive venues for these actions, and also advocates for a uniform regime across all sectors where group actions can be initiated. Significantly, the bill proposes expanding the range of entities that can launch group actions to include the Public Prosecutor. Moreover, under certain circumstances, the state would cover the claimant’s procedural costs, reducing financial barriers to litigation.
Despite these changes, the bill maintains some existing features, notably the “opt-in” nature of the French class action mechanism.
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 modernising the justice system for 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.
These specific provisions may soon become obsolete as a bill is currently being discussed.
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, medicinal products, medical devices, cosmetic products, contraceptive products, labile blood products or breast milk from lactariums, 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 this 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:
This may significantly change when the reform of the class mechanism enters into force. Indeed, the bill that is currently being discussed provides that legal entities will now be able to join group actions.
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 bill proposes to lower the threshold of a three-year existence to two years.
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 which will evolve as the bill proposes the appointment of specialised Civil Courts.
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 among 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. This formal notice stage may be eliminated in the future, as it is not encompassed in the bill currently under discussion.
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 in 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 that 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 the victims must come forward to accept rather than refuse the compensation, the distinction is largely symbolic, as the entire process takes place without their involvement.
Health class actions slightly differ from the other types of action since they involve 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.
Joining class actions in France is only possible through 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.
At present, class actions are not dealt with by special courts/judges in France. However, this may change if the bill currently being debated is passed.
There are no specific procedural aspects. The claimant must be careful to meet the rules of jurisdiction and limitation to prevent the case from failing on procedural grounds.
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, 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 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 for 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.
Third-party funding is not standard in France, at least for now. Claimants generally fund their claims themselves, subject to Articles 696 and 700 of the French Code of Civil Procedure.
The bill proposes to introduce a mechanism under which, under specific conditions, the state can partly or totally bear the costs, fees and taxable charges relating to the proceedings in place of the claimants. Although this provision does not cover fees such as lawyers’ fees, if adopted it may reduce the cost of the procedure for claimants eligible for this scheme.
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 R 623-9 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. Furthermore, just one recent judgment has found the defendant liable, and even that decision is not yet definitive as appeals are pending. According to the registry of the Observatoire des Actions de Groupe, only two 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 modernising the justice system for 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. However, given that the bill proposes the opening of the group actions to legal entities, new practices could appear in the future.
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 modernising the justice system for 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, which 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, and 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, the 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 regard 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.
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.
On 15 December 2022, a bill for a reform of the regime governing group actions has been issued. The aim of this bill is to implement in France the EU Directive on Collective Redress but also to simplify the French group action mechanism. Unlike the bill of 15 September 2020, this bill has not been abandoned and is currently being discussed.
As mentioned in 5.1 Policy Development, despite various reports and proposals issued over the years, significant reform of the French class action mechanism remained elusive until recently.
The bill introduced on 15 December 2022 seeks to overhaul the class action mechanism, which has been deemed largely ineffective by both the National Assembly and various NGOs. Out of approximately thirty class actions initiated since 2014, none has led to a definitive finding of liability against the defendant. This poor success rate, coupled with the relatively low number of actions taken, has led to consensus within the French government and National Assembly that the existing mechanism is in need of simplification.
This bill has been prepared by the two deputies who presented the report of 11 June 2020 mentioned in 5.1 Policy Development.
The National Assembly submitted the bill to the Conseil d’Etat which issued an opinion dated 9 February 2023. The Défenseur des Droits also gave its opinion on 23 February 2023. They both support the bill and have contributed to the draft by submitting amendments. Based on these comments and on the work of the National Assembly, a modified version of the bill was issued. An accelerated adoption procedure was initiated by the French Government on 6 March 2023, and the National Assembly gave its approval on the first reading two days later. The bill is likely to undergo only minor revisions in the coming discussions before becoming law.
As this bill proposes to completely redesign the group action mechanism, an important number of changes is expected and some of them constitute notable changes.
One key provision is the introduction of a civil sanction, a financial penalty payable to the state when a defendant is found to have committed an intentional fault. Although this is a civil rather than criminal procedure, this would represent a substantive change. Additionally, the bill aims for a uniform procedure for group actions across various domains, such as the environment, discrimination, and data privacy. This unified approach would replace the current domain-specific procedures. Another important change is full compensation for damages. Unlike under the current provisions (see 4.11 Remedies), all damages suffered by victims will be compensable.
The French class action mechanisms have not been impacted in any way by Brexit.
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 and could be an opportunity for the United Kingdom to co-operate with the signatory countries on mutual recognition of judgments.
ESG-related issues are the source of multiple types of claims in France, whether against the French State, governmental agencies and local authorities or companies. When it comes to such claims, no class actions have yet been filed. Most claims have been brought before the French administrative courts (against the state) or by way of criminal complaints (against companies, thereby compelling the Public Prosecutor to order an investigation to gather evidence against them). There are also a number of cases against companies for alleged failure to report on their ESG-related initiatives. If criminal investigations find companies liable, we can expect group actions to follow.
France’s Overhaul of Its Class Action Mechanism: A New Era for Collective Redress
France has implemented a collective redress mechanism that is sector-specific and can be expanded to cover new types of issues that may be raised against companies. This is how a “class action” for consumer claims was first created in 2014, together with competition-related class action (follow-on actions), before specific class action schemes were introduced for discrimination, health and cosmetics, environment or data privacy-related issues.
However, up until now, only a limited number of actions have been launched, and this mechanism has not even been used in some fields, such as the environment and cosmetics.
While there is no official record of class actions in France, according to the Observatory of Class Actions (Observatoire des Actions de Groupe), 37 group actions have been launched since 2014. 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). This action was a class action in the health sector, in which the liability of the manufacturer of Depakine (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 Civil Court held the manufacturer liable. Appeals have been lodged both by the claimant and the defendant, so the proceedings are still ongoing. While not definitive, this judgment is the first out of the 37 group actions already launched in France in which the defendant has been held liable (many of the group actions are still ongoing).
It is therefore not surprising that on 11 June 2020, the report of the French National Assembly on the results and prospects of group actions concluded that “the results of this new procedure remain disappointing”. The report criticises the low number of claims filed and their lack of success. However, this evaluation is based on a somewhat narrow set of criteria: the number of claims filed and the number of defendants found liable. One could argue that these metrics are not the only ways to gauge the effectiveness of a legal mechanism. For instance, the legal reasoning employed in court decisions indicates that judges are not willing to extend presumptions in favour of the plaintiffs in class action cases as they might in other contexts. This could suggest a more cautious or stringent approach by the judiciary when assessing group actions, rather than an outright failure of the mechanism itself.
In this context, a political agreement was reached at the European level on 20 June 22 under the slogan “Europe must become the shield that protects people”. The French June 2020 report, for its part, recommended broadening the range of damages and sectors concerned, pointing out that the draft Directive includes financial services, for example, and proposing a “universal” group action to put an end to any possibility of invoking a dismissal on this point. The report also advocates for a more robust range of possible sanctions, including penalties proportionate to a company’s turnover. The intention here is clear: to adjust the framework in light of previous judgments that have favoured companies, thereby making it increasingly difficult for similar defences to succeed in future cases.
This goal was reiterated by the French Senate when sharing the Administrative Supreme Court’s view on the proposed bill to reform class action in France. The Supreme Court noted that “During 2020, Laurence Vichnievsky and Philippe Gosselin led a fact-finding mission on the assessment and prospects of group actions, informed by numerous hearings and comparative law data. They noted that the procedure had been little used, with the number of group actions brought since 2014 amounting to just 32, including 20 in the consumer field, with only six proceedings having had a positive outcome. They observed that ‘group action has not been the source of significant advances in consumer defence’, whereas joint or collective actions had developed more. As a result, they put forward thirteen proposals, aimed in particular at establishing a common, unified framework for all group actions before the civil courts, broadening the scope of standing, providing for full reparation of all losses, whatever their nature, abolishing the prior formal notice requirement in environmental, personal data protection and discrimination cases, ensuring the financing of group actions, and reducing the time taken to reach judgment”.
This is why, on 15 December 2022, while France did not need to pass a new bill to comply with the new Directive (UE) 2020/1828 of 25 November 2020 on representative actions for the protection of the collective interests of consumers, a bill to reform the legal framework of group actions has been proposed.
This bill aims not just to align with the Directive but to overhaul France’s group action framework entirely. The proposed reform seeks to streamline the system for greater efficiency, gauged by the number of actions initiated.
The objective of the reform is therefore to simplify the procedure with different changes such as:
Despite these changes, the bill maintains some existing features, notably the “opt-in” nature of the French class action mechanism.
It is encouraging to see the new French bill aim to sidestep criticisms often levelled at the US class action system – namely, the way it compels companies to settle prematurely to avert costly litigation and reputational damage. The architects of the French legislation have clearly heeded these issues, noting that the US system has led to various excesses. Driven by media scrutiny and consumer advocacy, companies in the US frequently settle even when liability has not been conclusively established, largely due to fears over brand damage and mounting legal expenses. The French embassy in the US further underscores a key criticism: the US class action often disproportionately benefits attorneys at the expense of the actual claimants.
However, the bill’s authors dismiss such warnings, asserting that the French system is insulated from these pitfalls due to key differences with the US approach – such as an opt-in rather than opt-out mechanism, the absence of punitive damages in France, and a distinct lawyer compensation system. Whether these safeguards prove effective remains to be seen.
As for the status of the bill, the National Assembly submitted the bill to the French Administrative Court which issued an opinion on 9 February 2023, mentioned above. The Défenseur des Droits also gave its opinion on 23 February 2023. They both support the bill and have contributed to the draft by submitting amendments. Based on these comments and on the work of the National Assembly, a modified version of the bill has been issued. An accelerated adoption procedure was initiated by the French Government on 6 March 2023, and the National Assembly gave its approval on the first reading two days later. The bill is likely to undergo only minor revisions in the coming discussions before becoming law.
It is crucial for companies to brace themselves for the forthcoming legal changes, particularly in a jurisdiction unfamiliar with this type of redress mechanism. This preparation is all the more important given that judges in France have already expressed concerns about their limited resources to handle such cases.
Looking at case law, it is worth putting a lot of effort into the issue of the admissibility of the action. There are some obvious criteria to check as soon as the summons are received:
Beyond the basic checks for admissibility, there are more nuanced aspects that must be scrutinised as part of an effective defence strategy in group action:
Indeed, the defence strategy is bound to vary depending on the specifics of the issue at hand and the arguments presented by the association. Note that in France, there is no discovery or disclosure process. There was an attempt to include it in the upcoming bill but this was rejected. Therefore, each party is entitled to file only the documents it deems necessary for its case, even if there are means to force a party to share data, though very strictly framed.
Our experience in handling mass litigation outside the scope of class actions with thousands of plaintiffs, in areas such as toxic tort, aviation, automotive, and health-related cases, shows that it is essential to individualize both the allegations made by the plaintiffs and the plaintiffs themselves. For example, when alleging a breach, it is important to determine the timing of the breach. This can help not only with the statute of limitations, but also with determining which regulation is applicable, as regulations often evolve. It is tempting for plaintiffs to frame a situation as a breach under current regulations when the breach could only have potentially occurred while other regulations were in effect. It is also tempting to omit the fact that some individuals would be subject to a specific law while others would be subject to another. This work is tedious, but plaintiffs have no incentive to do it, as case law in mass litigation tends to award the same lump sum to all plaintiffs unless the defendant can provide strong evidence that the plaintiffs are not in similar situations.
Going through this exercise in a group action context is even more challenging. The mechanism is designed to allow the plaintiff association to present only a few test cases, which it will have selected from all of its claims as the least ambiguous and challengeable. However, the defence needs to think outside the box to determine the pool of plaintiffs. To do this, it must analyse each allegation made against it and determine the relevant timing and whether a similar situation could exist for hundreds or thousands of opt-in plaintiffs. The defence can also organise the pool of plaintiffs into categories to convince the court to explicitly exclude some categories in its judgment and avoid future debate. In our view, this is the only way to design an effective defence for companies.
Again, if we take the example of mass toxic tort litigation, an efficient defence is to convince the court that not everyone has been exposed to the same dose and that some could not have been exposed. This also helps explain why the same piece of legislation does not necessarily apply to all the plaintiffs. Companies that manage not to be condemned in all cases in an identical way are the ones who have anticipated the pool of plaintiffs that could emerge over the years and have explained it to the courts from the outset.
This individualisation will also help with the issue of damages. One of the defendant’s first tasks will be to determine the number of plaintiffs who could opt in if the company is held liable. This exercise will allow for the assessment of a worst-case scenario and the determination of the right reserve to record.
This exercise will also be important when it comes to the assessment of the damages themselves. While material damage can be easily assessed and challenged, moral damage and bodily harm, which are damages that can be compensated in some group action schemes, are much more difficult to assess. The use of experts will be essential here as well as a perfect command of the facts in each case. Needless to say, the use of technology to record and organise data is crucial.
Another important issue to consider from the outset is the publicity of the judgment if liability is acknowledged. If plaintiffs seek specific publicity measures using the company’s own resources, it is essential to assess the feasibility of implementing such actions. Furthermore, the company needs to gauge whether the means proposed by the plaintiffs are proportionate to the issue at hand, especially in terms of time and effort expended compared to the stakes involved.
In summary, companies should prepare themselves for a likely uptick in class actions if the bill in question is passed. Up to this point, France has been relatively unfavourable to collective redress mechanisms. However, the present legislative and governmental efforts are designed to change this dynamic, positioning France in competition with more class action-friendly jurisdictions like the Netherlands and Portugal. Therefore, proactive preparation for this looming shift is not merely advisable; it is essential.