The Minister of the Economy has just introduced a consumer protection bill that aims to create a “group litigation” for consumer and competition matters. The goal is to “reinforce consumers' rights and give everyone the means of an effective ‘economic citizenship’”.
Built around nine core measures, it introduces new economic regulation tools to establish balance between consumers and professionals. After a public consultation of the National Council of Consumption (Conseil National de la Consommation) which reunites representatives of consumer and business associations, a first draft of the bill dated March 22nd 2013 was made available to the public and seems to be the working base of the Government.
One of the main propositions was the creation of an "action de groupe", a class action "à la française".
A class action allows to group, in a single procedure, a legal action against a corporation in order to seek compensation for damages suffered by several individuals. I.e. "class action" in the United States, "recours collectif" in Québec and "action populaire" in Portugal.
Depending on the project, only registered and nationwide representative consumer associations would be empowered to file a class action before a judge.
As a result, out go the lawyers, at least at the early stages of the action. Recommended by the Conseil National de la Consommation, this exclusion triggers the wrath of their representative bodies.
I/ A class action "à la française"
This topic is not quite new in France. First put forward by Jacques Chirac in 2005, then by Nicolas Sarkozy in 2007, the class action had never seen the day.
Indeed, France pursues the reign of individual action, with a few exceptions, but might today reach a compromise.
The group action is a proceeding which, as such, would not allocate new rights to individuals. It would solely offer them new means of access to the judicial system.
This new tool would only allow compensation of "material damages affecting the consumer's property". Those damages would have to be caused "during the sale of goods or the provision of a service" or by anti-competitive practices. Public health and environmental matters are therefore excluded from the scope of application of this mechanism, discarding actions such as the high profile cases of the "Mediator", asbestos or PIP prosthesis. This restricted scope of application may seem debatable since these are the chosen fields for class actions elsewhere in the world. It reflects the government's concern that we might see some abuse such as cases seen in America. These concerns are unsubstantiated if we observe how class actions work in Canada.
In Québec, where the scope of application of the proceeding is unlimited, 30 to 40 class actions are filed each year. In 1978, year of its implementation, its opponents warned that this number could climb to 500 every year.
In the system envisaged by France and inspired by the Québec system, the judge would control the quality of the claims and would have the power to dismiss speculative ones, unfounded in law and bringing together individuals not bound by the same prejudice.
Since 1978 in Québec, out of 41 class action claims related to financial services (banks, credit institutions, insurance companies, etc.), only 18 were admitted, 6 out of 13 involving the use of health damaging products.
II/ A muted acknowledgement
Beyond admissibility, the judge would intervene at all stages of the proceeding (admissibility, settlement if any, ruling, assessment of individual compensation and ways of remittance).
Significant differences with what is done in the United States are down to the fact that French judges are not elected (and possibly liable before electors) but appointed. Besides, no jurors compose the French civil Courts and last, unlike US law, French law does not provide for punitive damages, i.e. beyond compensation of the prejudice : full compensation, but nothing more than compensation.
Admittedly, the class action must aim at protecting the interests of consumers as individuals, taking legal action for non-professional purposes : its scope of application must be limited to the compensation of serial damages, caused by a common origin, by the non-performance or non-compliance of these professional to their obligations to consumers relating to the sale of products or the provision of services.
However, does the class action effectively supplement the judicial remedies already available in case of litigation between consumers and professionals? Will the "action de groupe" à la française fulfill its role in our system as it is ?
The question remains unanswered. We shall see whether this bill brings about concrete progress rather than frustration.