Outline the organisation of your court system as it relates to collective or representative actions (class actions). In which courts may class actions be brought?
The introduction of the class action in French law through the Hamon Law is relatively recent, dating back to March 2014, and may be considered a ‘small procedural revolution’ in France.
The consideration of a possible introduction of this type of proceeding in French legislation began as early as 2005, when the first committee, formed in order to improve legislation so that class actions could be brought before French courts, began to work on the subject.
However, it took almost nine years for French lawmakers to issue the law consecrating class actions; known as the Hamon Law, it was passed on 17 March 2014 (Law No. 2014-344).
Later that year, in September 2014, a decree was introduced aimed at implementing the Hamon Law (Decree No. 2014-1081, 24 September 2014). On 31 December 2014, the remaining questions for the implementation of the Hamon Law were addressed in a circular (JUSC 1421594).
French lawmakers first chose to introduce class actions into French law ‘through the back door’ by adding only a small specific chapter to the French Consumer Code (Chapter III, Title II, Book IV, now Book VI since the French Government’s Ordinance No. 2016-301 dated 14 March 2016 modified the Consumer Code and the numbering of its articles) and an article to the Judiciary Organisation Code (article L211-15) dedicated to this new kind of action, instead of choosing to create a new part of the French Code of Civil Procedure, consecrating this new type of procedure.
As a consequence of this choice, the scope of class actions was initially very limited, as the class actions provided for within this whole process were open to only 15 consumer associations approved on a national scale and to the damages resulting from the sales of goods, service supply or anticompetitive practice.
Things have moved on since the class action was introduced by article 184 of Law No. 2016-41 of 26 January 2016, in the French health system and in the French Health Code (articles L1143-1 to L1143-22, R1143-1 to R1143-14 and R1526-1) and was potentially extended to 486 health user-approved associations. Indeed, this law, which was validated by the constitutional council, allows the 486 existing health user-approved French associations to take legal action before French courts in health matters. On 26 September 2016, Decree No. 2016-1249 was introduced implementing Law No. 2016-41 of 26 January 2016. Since this decree entered into force, class actions in the health field may be brought before the administrative (articles R1143-1 of the Public Health Code and R 779-11 of the Code of Administrative Justice) and judiciary (civil) courts (article 862-2, 905 and 1575 of the French Code of Civil Procedure). In 2016, Title V of Law No. 2016-1547 passed on 18 November 2016 known as the Justice of the XXI Century Law, created a common legal framework for the class action proceedings introduced before the French civil or administrative court and extended class actions to three new fields: discrimination (particularly discrimination at work (introducing the articles L 1134-6 to L1134-10 in the Labour Code)), data protection (based on article 43-ter of Law No. 78-17 of 6 January 1978, known as the Loi Informatique et Liberté) and environmental matters (introducing the article L 142-3-1 in the Environmental Code). On 6 May 2017, Decree No. 2017-888 was introduced specifying the common procedural base for all these different types of class actions. Lastly, articles 25 and 26 of Law No. 2018-493 dated 20 June 2018, concerning data protection, modified the article 43-ter of Law No. 78-17 of 6 January 1978 and adapted it to the EU regulation 2016/679 of 27 April 2016 by extending class actions to the compensation of material and moral damages caused by a controller or a processor after 25 May 2018.
Regarding the jurisdiction competent to state on this new type of action, French lawmakers decided not to create a new category of judges who would be in charge of class actions, but rather decided that the general jurisdiction competent for civil and administrative litigation would also be competent for class actions.
According to article L211-9-2 of the Judiciary Organisation Code, the Tribunal de Grande Instance (high court) is the rationae materiae competent judge for class actions in the consumer and competition field.
In the health field (article R1143-1 of the Public Health Code) and in the environmental, discrimination and data protection fields, class actions may be introduced before the French civil or administrative court (according to article L211-9-2 of the Judiciary Organisation Code to article 826-2 and following of the Civil Procedure Code and to articles L77-10-1 and following and articles R77-10-1 and following of the Code of Administrative Justice) depending on the competent jurisdiction. The rationae materiae competent judge is dependent on the person of the defendant. Whenever the defendant is a public entity, then the rationae competent judge will be the administrative court. Consequently, there is no material specialisation of judiciary courts and the user-approved associations could introduce their actions before the High Court or before the administrative court when the liability of a hospital or a public institution or body is concerned.
Regarding territorial competence, the effective competent jurisdiction is the high court of the place where the professional defendant in the procedure resides. If he or she does not reside in France or if he or she does not have a place of residence, the Paris High Court is designated as the effective tribunal. Consequently, without any court’s specialisation, there are 206 courts that are potentially competent for health, environmental, discrimination and data protection in class actions in the French territory (42 administrative courts, 164 High Courts).
Nevertheless, class actions remain above all a specific means of action and a specific procedure established to facilitate the work of the judge and of the plaintiffs concerned, insofar as the judge has only one file to deal with instead of multiple files.Frequency of class actions
How common are class actions in your jurisdiction? What has been the recent attitude of lawmakers and the judiciary to class actions?
For the consumer field the class action procedure was first introduced in French law on 17 March 2014 (Law 2014-344), whereas the decree pertaining to the application of the Hamon Law is two years old (24 September 2014) and the circular for the remaining questions regarding the law was published in December 2014 (JUSC 1421594).
In the health field, Law No. 2016-41 of 26 January 2016 was only recently implemented by Decree No. 2016-1249, which first entered into force on 26 September 2016. In the environmental, discrimination and data protection fields, Law No. 2016-1547, Justice of the XXI Century passed on 18 November 2016, was implemented by Decree No. 2017-888 dated 6 May 2017, which first entered into force on 10 May 2017.
As the laws authorising class actions are very recent, French jurisdictions have not been confronted with many class actions so far. The first one was filed on 1 October 2014. Since then, very few class actions have been filed, with around only 15 class actions having been filed since 2014. None of these 15 class actions have been successful at this stage, as no judgment retaining the liability of the defendant has been rendered so far and only a few proceedings introduced were finally settled.
In the consumer field, only 14 class actions have been introduced in France in since 2014. The different courts adopted a very restrictive interpretation of the scope of the consumer class action and considered that the landlord-tenant relationship, which is governed by the French Housing Relations Law dated 6 July 1989, cannot be considered as a service delivery entering into the scope of the Consumer Code, and is thus not applicable as a class action case and cannot, therefore, found a consumer class action. Within this framework the Paris Court of Appeal adopted this restrictive interpretation of the scope of the consumer class action with an important decision rendered on 9 November 2017. This restrictive interpretation was also confirmed by a judgment rendered on 14 May 2018 by which the High Court of Nanterre dismissed the very first class action introduced on 1 October 2014 by the French consumer association ‘UFC Que choisir’ and considered this action as inadmissible, as a landlord-tenant relationship cannot be considered as a service delivery entering into the scope of the Consumer Code.
Furthermore, the French Supreme Court rendered its first decision in a class action matter on 27 June 2018. It was seized on a strictly procedural question and rendered a first decision regarding the potential procedural inadmissibility of a class action owing to the fact that the different individual cases presented in the initial claim could be unrepresentative and that the claim filed to the different parties could thus be void. The French Supreme Court considered that the question of the representativeness of the individual cases presented in the initial claim is not only a procedural question on which the judge leading the proceeding can decide, but an argument on the merits of the case that must be examined by the judge deciding on the merits and on the question of the liability of the defendant.
Consequently, according to this approach, it is necessary to wait for the end of the first part of the proceeding and for the first judgment on liability to have a first assessment on the admissibility of the claim.
As this regulation is very new and innovative, the French judiciary is not yet used to this kind of proceeding and it will take time to acquire the necessary experience to assess the situation and to draw conclusions on the application of this new law. Nevertheless, it must be stated that these first proceedings have a long duration, as only a few first-instance decisions were rendered after four years and none of them considered the defendant as liable. It should be noted that only a few (15) proceedings have been introduced to date, showing that the new French class action system is not as efficient as expected. Finally, it must be noted that the first decisions rendered are dismissals, and that the question of the admissibility of the claims was subject to a very strict and rigorous control of the Paris High Court.
In the health field, the Association of Assistance to Parents of Children suffering from Anticonvulsant Syndrome, representing 2,000 children and their parents, introduced the first health class action concerning Depakine medication before the High Court of Paris on 17 May 2017. More than 14,000 women who took the medicine between 2007 and 2014 are potentially affected by this new class action. Considering the importance of the potential health scandal attached to the to-be-announced Depakine class action, the French National Assembly decided as early as 15 November 2016 to give its consent to the creation of a victim compensation fund. This compensation fund was introduced to the French law system by article 150 of the financial Law No. 2016-1917 of 29 December 2016, which modified Chapter II, Title IV, 1st Book, 1st Part of the Public Health Code, and added the articles L1142-24-9 to L1142-24-18 relative to the creation of this specific compensation fund for Depakine to the French Public Health Code. Decree No. 2017-810 implementing financial Law No. 2016-1917 entered into force on 1 June 2017 and created a non-judicial compensation procedure for the victims, which entered into force on 1 July 2017. The National Office for the Compensation of Medical Accidents (ONIAM), a French public office, created on 4 March 2002, will thus instruct the non-judicial compensation claims relative to Depakine filed by the victims in the framework of this non-judicial procedure. As a consequence of Depakine the victims will have the choice between a judicial class action before the High Court of Paris and a non-judicial compensation claim before ONIAM. In the health field this new form of class action emerged as a result of pharmaceutical scandals – for example, the Mediator scandal. The strong mediatisation of this type of class action will probably lead to more settlements or to the creation of non-judicial compensation procedures or compensation funds for the victims. This is an indirect but positive effect of the extension of class actions to the health field. In the health field, only three class actions have been introduced in France since 2016.
To our knowledge, only two class actions have yet been filed in the discrimination field, and two class actions in the personal data protection field. Globally, only 21 class actions have been introduced since 2014, out of which three class actions led to a mediation, and five class actions have been dismissed by the Tribunal.Legal basis
What is the legal basis for class actions? Is it derived from statute or case law?
Class actions were introduced through the Hamon Law dated 17 March 2014 (Law 2014-344), and the Decree dated 24 September 2014 pertaining to the application of the Hamon Law. The second legal basis for class actions was introduced by article 184 of Law No. 2016-41 relative to the modernisation of the health system and Decree No. 2016-1249 dated 26 September 2016 implementing this new law and extending class actions to the health field. The third legal basis for class actions was introduced by Title V of Law No. 2016-1547 passed on 18 November 2016, known as the Justice of the XXI Century Law and Decree No. 2017-888 6 May 2017 implementing this new law and extending class actions to three new fields: discrimination (particularly discrimination at work), data protection and environment.
Hence, class actions are derived from statute law, which is considered in France as the primary and most notable basis for class actions.Types of claims
What types of claims may be filed as class actions?
Consumption, health, environment, data protection and discrimination are several fields dealing with actual class actions.
In the consumption field, in France, as in other countries, collective actions aim to obtain compensation for individual and patrimonial damages resulting from material damage suffered by several consumers placed in an identical or similar situation, and damage incurred as a result of a contractual or legal breach by one or more of the same professionals (article L623-1 of the Consumer Code).
This new type of action is reserved for consumers, as only claims regarding consumer litigations may be filed as class actions. Consumer litigation concerns consumers and the disputes they have with professionals.
What matters here is the definition of a ‘consumer’. In this respect, the Hamon Law added a new preliminary article to the French Consumer Code that defines the consumer as ‘any natural person who is acting for purposes which are outside his trade, business, craft or profession’.
This definition corresponds to the transposition of Directive 2011/83 of the European Parliament and of the Council of 25 October 2011 (article 2 definitions).
According to article L623-1 of the French Consumer Code, this proceeding is limited to the damages resulting from: the sale of goods or services supplied; or anticompetitive practice in the meaning of Title II, Book IV of the French Commercial Code, or of articles 101 and 102 of the Treaty on the Functioning of the European Union.
The innovative aspect of article 184 of Law No. 2016-41 of 26 January 2016, which introduces class action in the Public Health Code, is that the application field is very broad. Article L1143-1 of the public Health Code provides that a health user-approved association may bring an action in order to obtain compensation for the individual damage suffered by health users being in an identical or similar situation caused by a breach of its legal obligations or a failure to fulfil its legal obligations by a producer, supplier or a service provider producing, supplying or providing services relative to the products mentioned under point II of article L5311-1 of the Public Health Code. Nevertheless, article L5311-1 of the Public Health Code provides a very large field of application. Indeed it includes ‘human sanitary products and cosmetic products’, which means that medicine, and essential oils, cosmetics and tattoo products are included in the application field of potential class actions.
In the environmental field, articles L142-2 and L142-3-1 of the Environmental Code also provide a very large field of application. The class action aims either to obtain an injunction to stop a nuisance or to obtain compensation for injury to persons or material losses suffered by several persons placed in an identical or similar situation, caused by the breach of legal obligations or a failure to fulfil its legal obligations relative to the protection of nature and of the environment, to the improvement of living conditions, to water protection, air protection, soil protection, sites or landscape protection, to the protection of urban planning, of sea fishing, or any damage relative to the fight against pollution and nuisance, nuclear safety, or radiation protection etc. The class action may be filed by any agreed environmental protection association according to article L141-1 of the Environmental Code existing for at least three years.
In the discrimination field, the class action aims either to obtain an injunction to stop a nuisance or to obtain compensation for damages suffered by several persons placed in an identical or similar situation, and caused by a discrimination linked to their origin, sex, family circumstances, pregnancy, physical appearance, economic situation, name, place of residence, state of health, loss of autonomy, handicap, genetic characteristics, customs, sexual orientations, gender, age, political opinions, union activities, ability to speak another language, real or presumed membership or non-membership of a particular ethnic group, people, race or religion. The class action may be filed by any union (for discrimination at work) or any association specialised in the fight against discrimination existing for at least five years.
In the data protection field, the class action was recently extended according to article 43-ter of Law No. 78-17 of 6 January 1978, known as the Loi Informatique et Liberté. It used to aim only to obtain an injunction to stop a nuisance regarding the treatment of personal data, suffered by several persons placed in an identical or similar situation, and caused by the breach of legal obligations contained in the Loi Informatique et Liberté or a failure to fulfil its legal obligations relative to data protection. Lastly, Law No. 2018-493 dated 20 June 2018, concerning data protection, modified article 43-ter of Law No. 78-17 of 6 January 1978, and adapted it to the EU regulation 2016/679 of 27 April 2016 by extending class actions to the compensation of material and moral damages caused by a controller or a processor. The class action may be filed by any union or any agreed users’ or consumers’ association or data protection association existing for at least five years.
In the field of crime, some collective actions may be filed before the criminal court by a registered association. This type of action before the criminal court already existed before the Hamon Law entered into force, but remains very rare and limited. Only a group of victims can form actions and only for certain crimes listed in articles 2-1 to 2-21 of the French Code of Criminal Proceedings. According to these articles, a registered association may launch a collective civil action within a criminal proceeding. The collective action must be launched by a duly registered non-profit association (according to the French Law of 1901) whose articles of association aim at combating certain types of crime and helping certain kinds of victims. As mentioned, this type of collective action is strictly limited to the crimes listed in the French Procedural Code, whereas over the years lawmakers have progressively extended the list of crimes for which a collective action is possible.Relief
What relief may be sought in class proceedings?
In the consumer field, according to article L623-2 of the French Consumer Code: ‘The class action can only deal with the compensation of pecuniary damages resulting from material damages suffered by consumers’.
Throughout the steps of the French class action proceeding, the professional involved is first held responsible for the damage and then asked to repair his or her wrong in a pecuniary way. The financial damages can be given either to the association representing the class or to the consumers themselves. The judge decides whether the money is directly (by the professional) or indirectly (using the association) handed to the victims.
Furthermore, the judge may also order a reparation in kind (article L623-6 of the Consumer Code) if he or she thinks it is better adapted to the situation, if it is possible and also accepted by the consumer. He or she will then further define the conditions of this reparation in kind by the professional. However, this reparation in kind may be excluded if it generates disproportionate costs for the professional.
Victims can seek financial damages by just joining the group (Consumer Code, articles L623-8 and L623-9), while no punitive damages may be sought. Only the material damages suffered by the victims can be reimbursed.
In the health field, according to article L1143-3, paragraph 2 of the Public Health Code: ‘The judge determines the personal injuries to be remedied suffered by health users constituting the group defined by him’.
Unlike the consumers’ class action, which only repairs the financial damages suffered by the consumers being in an identical or similar situation caused by a breach of its legal obligation by a professional, the ‘class action in the health field’ provides compensation for the personal physical injury suffered by health users being in an identical or similar situation caused by a breach of its legal obligations or a failure to fulfil its legal obligations by a producer, supplier or a service provider producing, supplying or providing services relative to the products mentioned under point II of article L5311-1 of the Public Health Code.
In the environmental field, according to article L142-3-1 of the Environmental Code, the class action provides either an injunction to stop a nuisance or compensation for injury to persons or material losses suffered by several persons placed in an identical or similar situation.
In the discrimination field, according to article 86 (discrimination) or 87 and 88 (discrimination at work) of Law No. 2016-1547, Justice of the XXI Century dated 18 November 2016, the class action aims either to obtain an injunction to stop a nuisance or to obtain compensation for damages suffered by several persons placed in an identical or similar situation.
In the data protection field, according to article 43-ter of Law No. 78-17 of 6 January 1978, known as the Loi Informatique et Liberté, the class action aims to obtain an injunction to stop a nuisance regarding the treatment of personal data, suffered by several persons placed in an identical or similar situation and since 20 June 2018 to the compensation of material and moral damages caused by a controller or a processor.Initiating a class action and timing
How is a class action initiated? What is the limitation period for bringing a class action? Can the time limit for bringing a class action be paused? How long do class actions typically take from filing to a final decision?
A class action is initiated by a duly registered consumer or health-user association that issues a summons before the competent jurisdiction (high court or administrative court) of the place of residence of the defendant, and is served by a bailiff or by the secretary of the administrative court on the professional concerned. If there are several defendants, the association has the choice between the different places of residence of the defendants and is thus able to choose a jurisdiction.
As usual under French law, the parties are not required to provide a notice with opportunity to cure prior to filing the complaint.
Furthermore, as usual, before the high court and before the administrative court the registered consumer association and the registered health users association must be represented by a lawyer, whose name must be mentioned in the summons served by the bailiff on the concerned professional (defendant).
The limitation period for bringing a class action is the same as for general cases: five years. Furthermore, the filing of a class action immediately suspends the statute of limitation period for all the individual actions depending on the class action. The statute of limitation period shall then begin to run again for a minimum period of six months for the individual actions when the judgment on the class action becomes definitive or when the settlement agreement signed after a mediation is approved by the judge. Furthermore, it is possible for the parties to sign a special agreement to suspend, pause or interrupt the statute of limitation period.
Generally, class actions take more than two years from filing to a final decision on the damage, whereas the proceeding is split into two parts and made of two decisions: one decision on liability and the second on the damage.