On 14 April 2015, the Bill relating to the health sector (renamed 'Bill on the modernization of our health system') has been solemnly voted at the French National Assembly.
Article 45 of this Bill, presented during a session of the Council of Ministers by the French Health Minister, Mrs. Marisol Touraine, on 15 October 2014, provides for the introduction in French law of class actions in health-related matters (for a description of the measures, see the Newsflash published on 15 October 2014, entitled 'Submission during a session of the French Council of Ministers of the bill notably introducing class actions in matters relating to health').
The French Government decided that the Bill would be voted by the Members of Parliament according to a fast-track procedure. Thus, the Bill could be voted after a single reading by each assembly, i.e. the French National Assembly and the French Senate.
During the debates at the French National Assembly's Social Affairs Committee, the main changes that have been made to the Bill were the following.
- The Social Affairs Committee decided that provisions relating to class actions in matters relating to health would be applicable even to breaches that have ceased prior to their entry into force, subject to the statutes of limitation. The version of the Bill submitted to the Council of Ministers had aimed at the opposite.
- The Committee added that the associations whose subsidiary activity consisted in the marketing of health products cannot bring health class actions, in order to avoid potential conflicts of interests.
- The Committee made it possible for the judge to condemn the person declared liable to pay an ad litem provisional sum (provisional payments compensating the fees incurred in the proceedings) for the expenses incurred by the association that are not included in the court costs. This provision already appeared in the Hamon law (law no. 2014-344 dated 17 March 2014), which introduced class actions in consumer law-related matters.
- The Committee decided that a prior mediation could be ordered by the court only at the request of all parties. Moreover, despite an amendment that aimed at making theprior mediation compulsory, the latter remains optional for the judge.
- The Committee decided that the Government should deliver to Parliament a report assessing the conditions for implementing the class action procedure and propose the changes it deems necessary up to thirty months at the latest after the law enters into force.
Among the amendments that were rejected by the French National Assembly, the following have more particularly drawn attention.
- The French National Assembly rejected amendments that aimed at extending the scope of class actions to other products (psychoactive substances, biocidal substances, phytosanitary substances, pesticide products) or losses (losses resulting from work-related accidents and occupational diseases, environmental losses). In contrast, it rejected an amendment aiming at excluding cosmetic products from the scope of class actions. Thus, (only) health and cosmetic products remain concerned by class actions in health-related matters.
- An amendment limiting the faculty to bring health class actions to the sole user associations registered at national level was rejected. This amendment was based on the provisions established by the Hamon Law in the scope of class actions in consumer law-related matters. Mrs. Hélène Geoffroy, who has been appointed as Rapporteur in charge of class actions in matters relating to health, had indicated that she was not in favour of this amendment as "the criteria for obtaining the national approval at national level are strict – the association must have at least three years of existence, at least 5,000 members divided up in at least six regions". She notably referred to the "damages that are circumscribed at local level" and to the "case of those who were over-irradiated in Epinal". According to her, the case "showed that, sometimes, health-related damage can affect a single region or a single [French] department, which is less likely regarding consumption. It is important that a regional association then be able to launch a group action." Therefore, a class action could be initiated by one of the hundreds of registered associations representing users of the health system at a national or local level.
- The maximum time allotted to join the group, set by the judge, is still between six months and five years from the completion of the ordered publicity measures. An amendment that was based on the Hamon Law and that aimed at limiting the maximum time allotted to join the group, ranging from six months to two years, was indeed rejected.
- A member of Parliament submitted two amendments to the bill that aimed to modify the French regime of liability for defective products, (i) by creating a presumption of imputability of the damage to the product "when epidemiologic or pharmacovigilance studies sufficiently show that the intake of the product at stake creates the risk of the damage which compensation is claimed for" and (ii) by eliminating the possibility for the manufacturer to exoneratefrom development risk in the presence of health products for human use. These amendments were withdrawn by this member of Parliament, who, nevertheless, stated that "we are facing an impenetrable legal barrier due to this transposition of this European directive of 1985. This is why I was asking the Minister earlier if it will be possible, in a near future, to request its revision".
- The entry into force of the provisions relating to class actions in health-related matters is still scheduled for 1stJuly 2016 at the latest, despite an amendment that suggested postponing this date until 1st July 2017.
The Bill must now be discussed and voted by the French Senate. No official date has yet been announced for the final vote of the Bill, which, according to the French Health Minister, could take place in the early fall of 2015.
We will continue to closely monitor the parliamentary debates, and then the preparation of the upcoming implementing decree, which should specify fundamental points such as the procedures for introducing a class action.