22 March 2024 Jean-Charles Jaïs  -  Claudia Cavicchioli  - Julie Esquenazi LinkingCollectiveRedress

The French Senate introduces significant changes to the draft bill on class actions

On 8 March 2023, the French National Assembly approved a bill aiming to implement the EU Collective Redress Directive and to increase recourse to class actions (read more in our blog post), particularly in light of the perceived limited success of this collective redress mechanism in France (with only 38 class actions filed before French courts since 2014). On 7 February 2024, the French Senate introduced significant amendments to the bill, generally tightening the conditions for class actions.

Amendments introduced by the French Senate

In a nutshell, a comparison between the bill adopted by the National Assembly and the amendments proposed by the Senate reveals the following similarities and differences:

  • Key features agreed upon by both chambers include a general opt-in mechanism, cross-border representative actions, designated tribunals with exclusive jurisdiction, and the creation of a public registry to track class actions.
  • Critical points of divergence include legal standing, the scope of health-related class actions and class actions based.

We set out below the main features of the two texts:

 

Bill adopted by the National Assembly in March 2023

Amendments adopted by the Senate in February 2024  
Legal Standing

Non-profit certified associations (associations agréées)

Associations which have been regularly created (déclarée) for at least 2 years and whose statutory purpose includes the defence of interests that have been harmed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Representative trade unions


Ad hoc associations which have been regularly created (déclarée)  and which act for (i) at least 50 individuals, or (ii) at least 5 legal entities which have existed for at least 2 years, or (iii) at least 5 local authorities (collectivités territoriales)

 

Qualified entities that can bring cross-border representative actions under the EU Collective Redress Directive

Public prosecutor (in case of class actions aiming at the cessation of the infringement)

Non-profit certified associations (associations agréées), if they meet five criteria:

  • at least 1 year of activity,
  • a statutory purpose that includes the defence of interests that have been harmed,
  • no on-going insolvency proceedings,
  • independence and lack of influence from individuals with an economic interest in the claim (other than the represented individuals), and
  • transparency regarding their statutory purpose, activities, main funding sources and organisation

Representative trade unions

No ad hoc associations

 

 

 

 

 

 

Qualified entities that can bring cross-border representative actions under the EU Collective Redress Directive


Public prosecutor (in case of class actions aiming at the cessation of the infringement) 
Regime and
scope		 General and unified regime that replaces the current sector-specific regimes, which provide different rules in matters relating to consumers rights, competition, housing rental, healthcare, discrimination, data protection, and environmental issues

Unified regime replacing the current sector-specific regimes, with the exception of health-related matters and breaches of the Labour Code.

 

In these areas, class actions may only be filed in relation to:

  • alleged breaches of legal or contractual obligations by producers or suppliers of health products, or by service providers using health products, 
  • alleged work discriminations
Relief
 
 Recovery of any kind of damages (under the current regimes, the recoverable damages depend on the sector-specific regime that applies)

Cessation of wrongdoing		 Recovery of any kind of damages

Cessation of wrongdoing
Prior notice No prior notice
  4-months prior notice, under penalty of inadmissibility
Funding Claimants may receive third-party funding, provided the funder does not have an economic interest in the filing or outcome of the action and is not a competitor to the defendant

Claimants may receive third-party funding under two conditions:

  • the funding must not allow the funder to exert influence on the initiation or conduct of the class action in a way that could harm the interests of the individuals represented, and
  • the funding must be made public
Adhesion to the class Opt-in Opt-in
Civil penalty In case of a deliberate wrongdoing for a financial gain

Amount of up to 3% of the annual turnover excluding taxes		 No civil penalty
Public Registry  Yes Yes 
Next steps

The National Assembly is set to begin its second reading of the bill in the upcoming months. The review will focus on provisions which are subject to a disagreement between the two chambers of the Parliament. 

Since the Senate introduced significant amendments to the bill initially adopted by the French National Assembly, a joint commission (commission mixte paritaire), comprising 7 senators and 7 deputies, may be formed to reach a consensus. 

Once the bill has been finally adopted by Parliament, it may be referred to the Constitutional Council. If the Constitutional Council approves the bill or if no referral is made, the President of the Republic will promulgate the law.