The Law n° 2014-344 of March 17, 2014 introduced the first class action in France (called “action de groupe” - “group action”). This legal action was limited to consumer and competition law litigation. However, this Law provided for a potential extension of class actions to health and environment law (Article 2 - VI).

The recent Health Bill voted by the Assemblée Nationale (French Parliament’s lower house) on  April  14, 2015 introduces a new class action for potential victims of the health system. This Law, if approved by the Sénat (French Parliament’s upper house), will enter into force on  July  1st,  2016  at  the latest  (Articles  L. 1143-1  to L. 1143-23 of the Public Health Code).

The necessity of a class action in this field arose from the failure of Regional Commissions for conciliation and compensation to award effective remedies to victims of the health system. Indeed, in 2014 only approx. 50 opinions were rendered amid 4800 complaints received.

According to the Bill, it has become imperative for victims to gather as a group to strengthen their legal action and obtain remedies for their injuries. It allows  victims to avoid individual judicial proceedings often considered as too expensive, such as the French cases of the Médiator, the PIP Prosthesis and the Distilbène.

If the Bill is passed, two different class actions will coexist in France: the “consumer class action” and the “health class action”. The French legislator seems to opt for the juxtaposition of various class actions with different procedural  rules instead of  a  single  general legal action as is the case in the United States. This approach is also taken by most European Union countries such as Italy and Spain.

The Content of the Health Class Action

The health class action allows a certified association to initiate legal proceedings in order to obtain compensation for victims, suffering from physical injuries following a legal or contractual breach by a producer, a supplier or a care provider using certain health and cosmetic products.

The Bill currently provides that the health class action can be retroactive. A class  action could therefore be brought for causal events or injuries that occurred before the law entered into force.

The plaintiff association must  have an activity in the health sector or the care of patients and be certified regionally or nationally. There are currently 469 associations that could potentially file such class actions. This number is significantly higher than the limited 15 associations allowed to bring a consumer class action. This should benefit victims of local practices with regional associations that are more accessible and more sensitive to their demands.

This legal action only deals with injuries following the use of health products for human beings and cosmetic products (Article L. 5311-1 II of the Public Health Code). Injuries resulting from toxic products such as psychoactive products of addictive nature for instance tobacco, and biocides, phytosanitary products or pesticides were deliberately excluded from the scope in order to avoid a rule of strict liability (liability without fault).

Through this health class action, users can only obtain damages for physical injuries. This restriction seems to be in conflict with the legal principle of full compensation. For example, if a victim suffers from moral injuries, he or she will have to bring a separate individual legal action.

The law also provides that any contractual clause excluding the possibility to file a health class action is deemed void. The clause will therefore be considered as non–existent.

The Procedural steps of the Health Class Action

The judge can appoint a mediator to help resolve the dispute after having examined the admissibility of the class action and if one of the parties requires it. The mediator suggests an amicable compensation agreement that must be accepted by the plaintiff association and at least one of the defendants in order to be approved by the judge. The judge’s decision of approval is not subject to appeal. The agreement is binding and enforceable for all signatories.

If the parties do not require mediation or if the mediation fails, the judge will analyze whether all conditions needed to bring the class action are satisfied in light of individual cases presented by the plaintiff association. The judge will then decide whether the defendant is liable or not. To this end, the judge can  order investigation measures such as medical expertise.

In his decision, the judge will set some essential conditions to claim compensation:

  • The conditions to be fulfilled to join the association so as to engage the defender’s liability;
  • The physical injuries falling under the scope of liability – for injuries not included in the scope of injuries, damages can be claimed through a separate legal action under ordinary law provisions;
  • The lapse of time during which users can join the association to obtain compensation.

Once the decision can no longer be appealed, the judge orders the defendant to publish the decision at his own costs according to the judge’s instructions. Potential victims are therefore informed that they can obtain compensation for their injuries by joining the plaintiff association. This compensation can be delayed by several years as the decision must be final.

After the decision is published, all users must join the plaintiff association within the time limit specified by the judge (6 months to 5 years). The time limit shall start to run from the moment the defendant publishes the decision pursuant to the judge’s order

In contrast with the consumer class action, the membership of users does not automatically give the plaintiff association standing to claim compensation on behalf of users. Indeed, they have two options:

  • Users can give mandate to the association. With the judge’s consent, the association can be assisted by a member of a regulated legal profession, such as an attorney; or
  • Users can bring their claim for compensation directly against the defendant held liable. It allows them to maintain confidentiality of their  medical  data including through attorney representation.

If users do not manage to receive compensation directly or through the association, they can ask the judge to enforce the decision. If the user initially gave mandate to the association, this mandate applies to the user’s representation before the judge; otherwise the user can organize his own representation.

The legal proceeding to obtain damages can be directed against the insurer of the defendant’s civil liability.

During a health class action, attorneys can assist and represent associations and victims. However, it is regrettable that associations hold a monopoly in representation to bring both the consumer and health class actions. Most European Union countries adopting class action legislations also limit the right to file a law suit to associations. This restriction seems to be in conflict with the principle of free access to justice.