What forms of collective actions are permitted in this jurisdiction and under what authority?
The following types of actions are permissible in France:
- Consumer law: class actions are permitted under the conditions set out in the French Consumer Code (Articles L.623-1 et seq.). The scope of these actions is limited to losses arising out of a breach of legal or contractual obligations by a “professional” (i.e. a person or entity acting in the course of its professional or business obligations) in the context of (i) the sale of goods or the provision of services, (ii) infringements of competition law or (iii) the rental of a real estate asset, since the Law of 23 November 2018 (n°2018-1021).
- Health product liability: under Articles L.1143-1 et seq. of the Public Health Code, class actions may be initiated on behalf of victims who have suffered bodily harm against a producer (e.g. a pharmaceutical company) or a supplier (e.g. a pharmacy) of a health product or a provider using this product (e.g. a doctor). The claim can also be brought against their insurers.
- Environment: under Article L.142-1 et seq. of the Environmental Code, a class action may be filed by an authorised association before the administrative courts for damages caused to nature, such as pollution, or more generally relating to environmental protection (e.g. water, air or soil protection).
- Protection of personal data: where numerous persons placed in a “similar situation” (e.g. users of a particular social network) have suffered material and/or moral damage (e.g. unauthorised disclosure of personal data) that constitutes a breach of the Law of 6 January 1978 on Data Processing, Data Files and Individual Liberties, a class action can be initiated against a personal data manager or a subcontractor (Article 37 of the Law n°78-17 of 6 January 1978 as amended by Order n°2018-1125 dated 12 December 2018).
- Discrimination: A collective action for discrimination is possible where several natural persons are subject to direct or indirect discrimination on the same grounds and attributable to the same person (Articles L. 1134-6 et seq. of the Labour Code). Group action in matters of discrimination is available to trade unions and any association that has been duly registered for at least five years and is involved in combating discrimination or working in the field of disability, as well as to any association that has been duly registered for at least five years and whose statutory purpose includes the defence of an interest damaged by the discrimination in question (Law. N°2008-496 of 27 May 2008, art. 10). The proposed collective action must seek to put an end to the discrimination and, where appropriate, to obtain damages to repair the harm suffered as a result of such discrimination.
These actions, except those introduced within the framework of consumer law and health product liability (Articles L.1143-2 of the Public Health Code), must be preceded by a formal demand to desist from the violations or to make reparation for the loss suffered, with a deadline of four to six months in which to negotiate the terms. Failure first to seek an amicable solution renders the class action inadmissible (Article 64 of the Law n° 2016-1547 of 18 November 2016 and Article L.77-10-5 of the Code of Administrative Justice). When the class action seeks to put an end to a situation of alleged collective discrimination, the request can be made by any means conferring a definite date (Article L.1134-9 of the Labour Code).
Other collective actions
In addition, French law also provides for five other types of collective actions:
- actions for the joint representation of consumers (“action en représentation conjointe des consommateurs”). An authorised association may, if expressly mandated by at least two individuals who have suffered damage resulting from the same cause, bring an action on their behalf. Such actions are permissible in the areas of: consumer law (Article L.622-1 of the Consumer Code); investment law (Article L.452-2 of the Monetary and Financial Code); and environmental law (Article L.142-3 of the Environmental Code) but they are rarely used;
- actions brought in the collective interests of consumers (“action exercée dans l’intérêt collectif des consommateurs”). Under Article L.621-1 of the Consumer Code, authorised consumer associations may take legal action to seek compensation for harm caused by a criminal offence to the collective interest of consumers. The harm for which the association seeks compensation must be caused to the "collective interest of consumers". Criminal offences causing damage for which the association may seek compensation include those that infringe on freedom of prices and competition. More generally, all offences which may harm the collective interest of persons regarded as consumers are covered, such as active and passive bribery (Cass. crim. 27 October 1997: RJDA 2/98 No. 231);
- defence leagues (“ligues de défense”). Case law has recognised that, in certain circumstances, an association may bring a collective civil action to defend the combined interests of its members, provided that its charter expressly provides for such a right of action;
- in defence of “important causes”. Articles 2-1 et seq. of the Criminal Procedure Code allow specific associations to bring an action before civil or criminal courts, based on the defence of the collective interest they represent, in order to obtain damages resulting from the commission of a criminal offence. The scope of these articles covers a wide range of criminal offences, such as racial discrimination, corruption and terrorism. Each of these articles provides for different requirements relating to the admissibility of these actions (e.g. an association providing support to victims of terrorism can initiate such an action only if it is duly authorised, its statutory purpose includes the assistance to victims of terrorism and the criminal prosecution has already been instituted);
- Regarding competition offences, such as price fixing and unfair competition, article L.490-10 of the French Commercial Code permits professional organisations to initiate proceedings in a civil or commercial court for harm caused directly or indirectly to the collective interests of the profession or sector which it represents. To our knowledge, very few decisions have been rendered on the basis of this provision.
Who may bring them?
The various actions may be brought by different parties.
- Consumer class actions: only an association authorised to represent consumers at a national level may initiate proceedings on behalf of all consumers who have suffered loss or damage as a result of a breach of legal or contractual provisions by a professional or infringements of competition law, without the need for an express mandate from the consumers it represents and without the need to identify a particular number of consumers. The association must, however, present distinct individual cases to the court in support of its claim (Articles L.811-1 and R.811-1 of the French Consumer Code).
- Health product liability: a class action may only be initiated by accredited, national or regional, associations of users of the French health system as per Article L. 1114-1 of the Public Health Code.
Under Article L.77-10-4 of the Code of Administrative Justice, a class action may only be initiated by (i) authorised associations and (ii) associations registered for at least five years and whose statutory purpose includes the defence of the interests that have been harmed.
However, there are special provisions limiting or widening the standing to bring a class action in different areas:
- Environment: a class action can be filed by (i) an authorised environmental protection association or (ii), under certain conditions, an authorised association whose statutory purpose includes the defence of victims of physical damage or the defence of the business interests of its members.
- Protection of personal data: a class action may be brought by (i) an association registered for at least five years and having as its statutory purpose the protection of privacy and personal data, (ii) where consumers are affected by the processing of personal data, a consumer protection association authorised at a national level or (iii), under certain circumstances, a trade union.
- Discrimination: a class action may be initiated by (i) a representative trade union as defined in the French Labour Code or (ii) an association registered for at least five years and involved in combating discrimination or working in the field of disability.
Other collective actions
- Actions for the joint representation of consumers: the authorised association may commence an action for the joint representation on behalf and for the benefit of each claimant. In order to commence an action, the association must receive written instructions from each claimant. Each claimant must be known and identified. A claimant can revoke his instructions at any time and pursue the action on his own account, as long as he informs the court, the defendant and any other party to the proceedings.
- Actions brought in the collective interest of consumers: where the loss suffered is related to the commission of a criminal offence, the association may file a criminal complaint and seek compensation. Alternatively, it may only intervene in a civil action before the criminal court which has already been commenced by one or more consumers with respect to losses related to goods or services received by them.
- Defence leagues and cases brought in defence of important causes: the relevant association may bring the action on its own behalf.
Opt in or opt out?
All class actions currently available under French procedure are subject to an opt in mechanism.
The five other types of collective action remain subject to the general rule under French law, pursuant to which the effects of a judgment cannot extend to persons who have not been a party to the action. Judges are not permitted to render decisions that extend beyond the claims of the parties.
Generally, class action proceedings comprise the following two steps:
- The competent court first rules on the admissibility of the action brought by the association, the liability of the defendant and, if appropriate, defines the group of persons affected and how the decision will be publicised;
- Individuals then have the opportunity to opt into the class during a period set out by the court, which will rule afterwards on the amount of damages or other remedies for each member of that class.
First and foremost, there is no specific statute of limitation for class actions beyond those applicable generally under article 2224 of the Civil Code. Claims on a contractual or tortious basis must be brought within five years of the damage (that is, five years from the day the injured parties become aware, or should have become aware, of the facts enabling them to bring a claim).
For personal injury, the limitation period is 10 years, starting from the date at which the state of health is considered stable. For product liability, the limitation period is three years. This cannot be extended beyond ten years from the date on which the product was sold.
Class actions to protect the rights of consumers have a number of other limitations.
- In order to bring a class action, an association must be expressly authorised to do so by the State. At present, only 15 consumer associations benefit from that authorisation.
- In the context of product liability cases, for example, class actions may only be initiated with respect to the pecuniary harm suffered by consumers, excluding physical injury or other non-pecuniary harm. Individual claims would need to be brought with respect to those other kinds of harm.
- With regard to the right to initiate class actions in cases of breach of personal data, the scope of remedies varies according to the date of the event giving rise to the damage. If the event at the origin of the damage occurred before 24 May 2018, the scope of remedies is limited to the cessation of the breach of personal data. If the event occurred after 24 May 2018, the claimants can also obtain reparation for the harm suffered because of the breach.
- With regard to health-related issues, class actions may only claim reparation for actual harm suffered.
Other collective actions
A number of limitations also exist as regards other types of collective actions.
- According to French case law, for an association to bring a collective action, its constitutive documents must provide for the possibility of it undertaking an action to defend the collective interests of its members, even if the harm was caused before the association was set up, and at least one of its members must have suffered relevant loss or damage. Those requirements have, however, been lessened by case law with regard to actions brought in defence of important causes.
- Associations cannot advertise for potential claimants on the radio or television, nor by means of posters, flyers or personal letters, but only in the newspapers. An exception to this rule is that, under the action for the joint representation of investors and pursuant to Article L.452-2 of the Monetary and Financial Code, associations can be authorised by the President of the Court to use the media in order to seek members of the class. This is a special regime for collective actions, different from that applicable to group actions, where the judge orders, at the defendant’s expense, appropriate advertising measures to inform potential claimants.
Judge or jury?
What relief may be obtained?
The relief available depends on the type of action.
Damages may be awarded to the individual consumers who opt into the group defined by the judge in the liability judgment. The same judge will have jurisdiction to rule, separately, on any difficulty or claim arising out of the implementation of the liability judgment. Damages for harm such as mental distress or reputational harm cannot be compensated through class action proceedings.
French law sets out two ways for individuals to receive compensation through a class action: the individual procedure and the collective procedure.
Under the individual procedure, the court will rule on the criteria and time limit to be met to be part of the class of persons harmed by the defendant. The court will also decide on the amount of damages to be paid to each category of persons in the class. Each individual member of the class will then need to request damages from the defendant or the association. In cases of disagreement, the individual member can apply the court.
Under certain circumstances, the court may decide to implement a collective procedure at the claimant’s request. This procedure is half mediation, half judgment, in the sense that the claimant will receive a mandate from the court to negotiate the amount of damages with the defendant on behalf of the whole class. The court will indicate the elements to be relied upon by the claimant to assess the amount of the damages to be negotiated with the defendant. The court will also set a deadline by which the negotiation should end and for the compensation to be paid to the individual members of the class. The procedure is intended to result in a settlement agreement between the association and the defendant. If such a settlement cannot be reached, the matter can be referred back to the court to request the application of the individual procedure. A civil fine of a maximum amount of €50,000 can be imposed on any party who is considered by the court to be abusively delaying or preventing the conclusion of a settlement agreement.
Other collective actions
- Actions for the joint representation of consumers: Damages may be awarded to the individual claimants.
- Actions brought in the collective interests of consumers: The association, exercising the rights given to a civil party, may obtain damages. It may also seek an injunction restraining the defendant from engaging in illegal activities, since this action is designed to seek relief which is in the interests of the group as a whole.
- Defence league actions: Damages are awarded to the association. In practice, courts tend to award nominal or symbolic amounts, as the actual loss to be compensated (that is, the loss suffered by the group as a whole), is difficult to evaluate. In addition, individual members may seek damages on their own behalf.
- Actions in the defence of important causes: Damages are allocated to the association. In practice courts tend to award nominal or symbolic amounts only.
There is no such concept as “punitive damages” under French law. The damages ordered are intended solely to compensate a party for the losses suffered.
In addition, there are two further procedures available by which relief may be awarded in specific circumstances: simplified class actions and mediation.
- Simplified class actions: Where the identity and number of affected customers are known and the harm suffered by each is similar in amount, Article L.623-14 of the Consumer Code provides that the judge can order the company to pay compensation directly to the relevant consumers individually, within a set timeframe and in a manner set down by the judge.
- Mediation: A procedure was introduced in 2014 under which the applicant consumer association and the company undertake mediation to determine settlement of the action. The resulting agreement will be presented to the judge who, after confirming that it is in accordance with the consumers’ interests, will declare the agreement fully enforceable. The 2016 Law also allows authorised associations to participate in mediation.
How are such actions funded?
The losing party is normally obliged to contribute a specified sum (usually rather low), by way of costs to the successful party, in addition to payment of court fees. Legal aid may be available to qualifying claimants.
Lawyers’ professional ethics rules prohibit lawyers from conducting cases on a “no win, no fee” basis; a total contingency fee is forbidden. However, it is permissible to agree to a supplementary fee payable upon the outcome of the case (i.e. a “success” fee) or for the services rendered.
Third party funding is not prohibited in France but the legal boundaries of the practice remain uncertain. Associations must comply with specific rules governing their funding.
Is pre-trial disclosure available?
Likely future scope and development?
Decree n°2019-1333 of 11 December 2019 reforming French civil procedure constitutes the most recent development of French law in this field. While not leading to any significant changes, this decree consolidated most of the procedural rules applicable to class actions into Articles 848 et seq. of the Code of Civil Procedure.
Since 2014, 19 class actions have been initiated but no decision on a defendant’s liability has yet been rendered.
On 4 October 2018, a bill was introduced in the National Assembly aimed at allowing a group of at least 100 consumers to appoint one of its members to initiate a class action, without the need to act through an authorised consumer association. This bill was referred to the Law Commission of the French Parliament which, on 10 July 2019, launched a fact-finding mission on the results and perspectives of the French class action system. If this bill is passed, the number of class actions in France could substantially increase.