It is the second extension of the class-action procedure since the Hamon Law of 2014. After consumer and competition (Hamon Law), then health (Touraine Law of 2016), class actions will now be possible in case of discrimination, damages caused to the environment or breach of the data protection Law.

Therefore, all companies are now exposed to the risk of class actions.

I. Class actions against discrimination

  • Who might claim?

Associations regularly declared for a period of 5 years, whose corporate purpose includes defending prejudiced interests, can bring a class action for discrimination outside of the employment relationship (ex.: discrimination in housing awarding, in allowance, etc.). Besides, associations acting against discrimination can bring a class action in case of discrimination of candidates to an employment or a trainee position.

Approving an association is a very simple formality which does not require to fulfill any criteria nor any authorization from public authorities. The condition set forth in the 21st Century Justice Bill therefore does not prevent abusive or unfounded actions.

Representative trade unions (at the national or company level) can bring class actions for labor discrimination.

This means that thousands of associations and trade unions, even tens of thousands, may soon use this new action.

  • A broad scope

A class action is possible when several natural persons, placed in similar situation, sustain a direct or indirect discrimination, based on a same ground and attributable to one public or private authority.

Class actions can seek the cessation of the alleged discrimination (for the future) and/or the compensation of the harm sustained. No exception is provided on this point. Moral damages are therefore compensable, which could lead to their instrumentalisation in order to punish companies, rather than compensate identifiable and personalized damage.

Nevertheless, within the framework of employment relationships, the 21st Century Justice Bill provides that only the injuries that were incurred after the reception of a formal notice can be compensated. Such formal notice is a mandatory step before initiating any class action.

  • The procedure

The Law provides common rules, which are the same for the different proceedings of class actions implemented.

Stage 1: The court (civil or administrative) rules on the admissibility and on the professional’s liability at the same time. If the professional is found liable, the court determines in the same ruling the criteria to join the class and the publicity measures. Once all domestic remedies have been exhausted (appeals before the competent Court of appeal and the Supreme Court respectively), publicity measures are implemented (including, when appropriate, advertisement on television).

Stage 2: Once the individuals are informed of the judgement, they can join the group (late opt-in system) by sending a claim for compensation, either to the claimant or to the defendant. The latter shall compensate the individuals on a case-by-case basis if they fulfill the requirements set in the judgement. The individuals who face the professional’s refusal to compensate them shall bring an individual legal action.

  • Coming into force

The class action will not be available for discrimination that occurred before the entry into force of the law.

II. Class actions relating to the environment

  • Who might claim?

The approved associations protecting the environment have standing to initiate class actions. This is also the case for approved associations which corporate purpose bears the defence of bodily injured individuals or of the economic interests of their members.

  • Scope of application

A class action is possible when several persons, placed in similar situation, suffer harms resulting from a damage caused to the environment by a single person and arising out of a breach.

The expression « damage caused to the environment» is not defined in the text, which is open to interpretation.

Associations may act on behalf of both natural and legal entities (ex.: municipalities) before civil and administrative courts.

The class action may seek the cessation of the breach and/or the compensation of bodily harm and material loss resulting from the damage caused to the environment.

  • The procedure

The procedure is the same as the procedure regarding discrimination. The association is required to send a formal notice before initiating any class action.

  • - Coming into force

The actions will not be available for a breach that occurred before the entry into force of the law.

III. Class actions in data protection

  • Who might claim?

Approved consumers’ associations, representative trade unions and associations regularly declared for five years (acting for private life protection or personal data protection) have standing to initiate class actions in this field.

  • A restricted scope

Associations or trade unions may bring an action when several natural persons, placed in similar situation, suffered harms caused by a breach of the Law of January 6, 1978 on data protection, committed by a personal data manager or a subcontractor.

A class action can be brought before an administrative or civil court.

Nevertheless, this action exclusively seeks the cessation of the breach. It is not possible for associations and trade unions to seek for victims’ compensation.

  • The procedure

A formal notice must be sent before initiating any class action. If the Court considers that a breach of the 1978 Law was committed, it orders the defendant to cease the breach and to take, within a time limit, all useful measures for this purpose, when necessary with the help of a third person designated by him and under daily penalty.

In this proceeding, there is no constitution of a group of victims properly. Therefore, this is more a collective action than a genuine class action. It is therefore likely that a future law might extend the scope of this procedure to allow a damage compensation.

While feedbacks are insufficient in the consumer field, public authorities decided to extend substantially the scope of the class-action procedure as well as the number of person that can initiate such action. An increase of class actions is to be feared in the following years.