The class action was adopted at first reading by the French National Assembly (June 26) and then by the French Senate (September 13) after years of discussions and abandoning of draft laws in this field. The present bill was the subject of a recent report prepared by the Committee on Economic and Monetary Affairs of the National Assembly, filed on November 21, 2013. The bill, currently being examined at second reading by the National Assembly, is intended to contribute to a realignment of commercial relations between professionals and consumers.
The main provisions of the bill are as follows :
- The nationally approved consumer defense associations (of which there are presently 15) are granted a monopoly to represent the class action plaintiffs, which means that plaintiffs’ lawyers (except those of the associations) are generally excluded from this reform.
- The law is limited to the compensation for losses resulting from the sale of goods or services or anti-competitive practices (damages relating to health and environmental law are de facto excluded from the scope of the bill).
- The class action is heard by a judge sitting in the Court of First Instance (Tribunal de grande instance) especially appointed for the handling of class actions. In one single judgment, the judge rules on (i) the conditions of admissibility of the class action and (ii) the liability of the professional. The judge will determine for each consumer or category of consumers composing the group that he defined, the amount of damages or any other elements permitting their assessment.
- If the judge considers that the liability of the professional is incurred, he orders that the final judgment be published to inform the consumers who may join the group. The time period to join the group is between two and six months after the publication. Thus, the bill incorporates the opt-in mechanism with publicity. In the same decision, the judge sets forth the time period during which the compensation for the damages suffered by the consumers must be completed.
- The consumers defense association is in charge of the indemnification of the individual consumers.
- At any time during the proceedings, the judge may order any instruction measure for the purposes of conserving and producing proof, including documents held by the professional. This provision, inserted by the Committee on Economic and Monetary Affairs of the National Assembly after the adoption in first reading by the Senate, introduces a new regime regarding proof, which seems to be especially designed for the class action. It seems that the provisions of the Article 145 of the French Procedure Civil Code were considered as not sufficient for the class actions and therefore, pursuant to the new bill, the judge is entitled to require the production of proof by the professional to determine the compensation. This new regime, providing that the French Parliament approves it, will likely be completed by application decrees that will determine their precise conditions of application. It remains to be seen whether the upcoming bill to be reviewed and amended by the Parliament, will become the French version of the American discovery procedure.
- The bill also creates a simplified class action – with the risk that the regular class action be considered as complex – in which the affected consumers are known. In the simplified case, the professional could be ordered to directly and individually indemnify the affected consumers within a certain period of time.
Benoît Hamon, the French Consumer Minister, who proposed the bill, indicated during the parliamentary debates that “the class action will not impose upon companies any additional constraint since it will change nothing in the legal and administrative landscape where their activities are performed. It will only create a new procedure allowing the consumer to be indemnified for the damages suffered […]”.
In reading the bill, it appears difficult to agree with the assertions of the Minister since the bill, which should be definitively adopted in the spring of 2014, will necessarily have an impact on companies’ litigation policies. Enterprises should already begin to prepare for this new type of litigation and especially for the possible production of evidence that may be required by the judge as proof, assuming that this discovery measure à la française will be retained.