The introduction of a class action à la française is being eagerly debated in France. Indeed, during the election campaign, François Hollande, who became President in May 2012, expressed his position in favour of this concept. Former French Presidents, in particular Jacques Chirac, have also expressed similar views. It would seem that several concrete measures will be taken this year.
Appearance of rushed bills without any future
The French debate on the introduction of class actions is not a recent one. Indeed, it was already under discussion before the Commission for the codification of the Consumer Code in 1990.
Every Member of the French Parliament has an opinion on this question. It is, therefore, not surprising that, over the years, countless bills have been submitted without ever being adopted.
The main reason for the failure of the initiatives of the Members of Parliament is probably the intention of the French Government to lead the project itself. For instance, Benoît Hamon, Minister in charge of Social and Cooperative Economy and Consumer Affairs, insists on the insufficiency and inadequacy of these bills. Furthermore, according to the French Government, the different initiatives do not offer the necessary guarantees and are not supported by sufficient information or external opinions.
French Government requires external opinions
Firstly, the Council of Economic Analysis (Conseil d'analyse économique) published a report on 10 September 2012 entitled "Consumer protection: limited rationality and regulation"1.
The mission of the Council of Economic Analysis, which includes renowned economists, is to highlight choices that ought to be made by the French Government by comparing different points of view and analyses. The abovementioned report suggests six proposals for reform, one of which insists on the introduction of a collective redress mechanism in France. It underlines that the features of the class action à la française should take into account the following three economic principles:
- low participation costs for claimants;
- reasonable remuneration for the bodies acting on behalf of claimants; and
- as broad a scope as possible.
Secondly, Benoît Hamon brought the issue to the attention of the French Consumer Council (Conseil National de la Consommation) on 11 October 2012 to obtain the latter's opinion. The French Consumer Council is an advisory body that includes consumer protection associations and companies in charge of discussing consumer affairs.
In its opinion published on 4 December 2012, the French Consumer Council sets forth various requirements for a potential French class action:
- the action could only concern mass damages resulting from the non-performance by a professional of his or her obligations towards consumers;
- the amount of damages to be awarded should be determined by judges; and
- consumer associations entitled to act on behalf of claimants would not be allowed to directly collect the damages awarded.
The French Consumer Council also expressed its disapproval of the US-style class action. However, the contribution of the French Consumer Council is limited as it left a number of questions unanswered, such as the terms and conditions of the consumers’ consent or the distribution of awarded damages between consumers.
Nevertheless, the French Government will also rely on this opinion to prepare a bill that should be submitted to the French Parliament before Spring 2013.
Bill expected before Spring 2013
In November 2012, a public consultation on the introduction of class actions in France attracted the interest of more than 7,000 people. According to Benoît Hamon, such public participation, in addition to the abovementioned contributions, encourages an intervention by the Government.
The introduction of class actions into French law will be debated in the context of a wider law aimed at strengthening the rights of consumers while protecting innovation and competition. The potential class action à la française should have limited scope: only consumers (although no clear definition of this concept is given by French law) could benefit from this new procedural tool. In any case, before taking a final view on the awaited French class action, we need to await the text adopted by the French Parliament.