The year in reviewi Recent statutory developments
Law No. 2016-1547 of 18 November 2016 extended the initial group action mechanism created in 2014 to actions relating to personal data. However, this law was criticised, as it only allowed claimants to request an injunction putting an end to the harmful data processing – thereby excluding claims for damages. This shortcoming was addressed by Law No. 2018-493 of 20 June 2018, which extended personal data group actions to include claims for damages for moral and financial prejudice.
Another noteworthy development, mentioned above, was Law No. 2018-1021 of 23 November 2018, which modified the relevant provisions of the Consumer Code so as to explicitly include residential leases in the scope of possible consumer law group actions.ii Recent court decisions and current proceedings
Over the course of the previous calendar year, three decisions were handed down by French courts in group action proceedings and, towards the end of the year, an association formally declared that it would likely be initiating a data protection group action in the first semester of 2019.
On 27 June 2018, the French Supreme Court, Court de cassation, rendered its first decision regarding a group action. The decision was on a procedural point, but it is noteworthy as it is a procedural point that is common to all group actions, namely the necessity that the writ initiating a group action contain a (non-exhaustive) list of individual claimants who are deemed to be representative of the types of claimants who would join the group action at the opt-in phase. In this case, the appellant argued that, upon initial analysis of the writ, the pretrial judge had the legal obligation to scrutinise the list of representative claimants contained in the writ to verify that its members were indeed capable of constituting a list of people who had suffered identical or analogous prejudices that had allegedly all been caused by the defendant. The appellant further argued that, as the inclusion of such a list was an imperative requirement for any group action writ, any defect with the said list would render the writ null and void. The appellant therefore argued that, in the case at hand, the pretrial judge should have inspected the list, as per its legal obligation, and declared the writ null and void, as the individuals included in the list at issue were not capable of representing a homogenous set of claimants, having suffered identical or analogous prejudices due to a common cause.
In its decision, which should be followed in the future by French courts, the Cour de cassation ruled that the pretrial judge only had the legal obligation to verify that such a list was indeed included in the group action writ. Contrary to what the appellant had argued, however, the pretrial judge did not have the legal obligation to review the list in detail to ascertain that it could indeed be deemed to be representative of individuals constituting a homogenous class of claimants; this obligation, the Cour de cassation ruled, befell the judge on the merits, and not the pretrial judge.
As indicated above, in a group action devoted to residential leasing contracts, in May 2018, the Nanterre High Court ruled in line with the 2017 Paris Court of Appeal decision, finding that leasing contracts fell outside the scope of consumer law group actions. This principle should not, however, be followed in future decisions, given the legislative changes enacted in November 2018 that explicitly include residential leasing contracts in the scope of consumer law group actions.
Finally, the last group action judgment rendered in 2018 was the 3 October Paris High Court decision regarding the case brought by a consumer association against a mobile phone network provider. The court rejected the association's claims that the network provider was in breach of its legal and contractual obligations to provide a particular service to its customers. As the case was rejected at the first phase, during which its merits were considered by the High Court, it did not progress to the second, opt-in phase.
To our knowledge, there are six group action proceedings currently pending, two undertaken against banks regarding financial services, two against pharmaceutical companies regarding a drug and a contraceptive, and two against the French state regarding discrimination in the police force and the higher education system. Finally, in late November 2018, Internet Society France, an association devoted to internet-related standards, formally announced that it would be bringing a group action against Facebook regarding various data protection violations (some of which are announced as being violations of the General Data Protection Regulation (GDPR)). Needless to say, if Internet Society France effectively initiates this group action in 2019, it will be followed and scrutinised by the legal community with great interest, owing not only to the relative youth of the French group action regime, but also to the allegations of GDPR violations and, obviously, the target: Facebook.iii Upcoming legislation and announced future changes to the class actions sector
On 17 October 2018, a group of MPs filed a draft bill that would enable groups of 100 individuals or more, rather than solely accredited legal entities, to initiate group actions. These groups would need to designate one of their members as a representative, who would be charged with representing the group before the courts. If this draft bill is enacted in its proposed state and accredited legal entities are no longer the exclusive initiators of group actions in France, the group action mechanism would take a significant step towards the US model and one could potentially expect to see significant changes in the number of group actions brought before French courts.
At an EU level, a draft directive was filed on 11 April 2018 that could lead to considerable changes to the class action landscape in Europe and, it follows, in France. The draft directive would create a new type of national class action, for damage suffered by consumers in various sectors, such as banking, energy, telecommunications, healthcare and the environment. The envisaged class actions would enable claimants to seek damages, as well as various types of injunctions. It would share some similarities with group actions provided under French law, as the class actions envisaged in the draft directive would also be initiated by accredited entities and include an opt-in mechanism. In 'low-value cases' an opt-out mechanism is provided. This new type of class action would coexist with those already existing at a national level. It is difficult, however, to envisage how the EU level regime and the domestic, French regime would dovetail, given that the former is still in draft form and the latter is still in its infancy and evolving at a steady pace.