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?
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.