Class actions in France

  1.  Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.
  2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.
  3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.
  4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
  5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.
  6. What types of relief are available, i.e., damages and/or injunctive relief? 
  7. On what basis are damages calculated i.e., compensatory and/or some other basis?
  8. Are punitive or exemplary damages recoverable?
  9. Will domestic law need to be changed to comply with the Representative Action Directive?
  10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
  11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?
  12.  Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?
  13. Do you have specialist courts for these procedures?
  14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
  15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
  16. Can arbitration clauses lawfully contain class action waivers?
  17. Are contingency fee agreements permissible?
  18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?
  19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.

Under French law, the mechanism for bringing class actions is through an opt-in basis exclusively. The action is open to a defined category and such persons have the opportunity to join the group. 

The opt-in class action process consists of two phases: a judgment to decide the extent of liability of the defendant (i.e., “Judgment on liability”); and the compensation phase.  

  • Judgment on liability 

In this phase, the judge must assess the admissibility of the action and the liability of the defendant. The judge will base his decision on the submissions made by the claimants, and he will decide whether to hold the defendants liable for their actions. 

The judge will also determine: (i) the criteria for compensation; (ii) how to define the class of consumers to which the defendant may be liable; and (iii) how to inform the members of this class of the judgment. Pursuant to the French consumer code, the court will decide on the appropriate measures to inform the class members of the existence of the Judgment on liability. 1 French Consumer code, art. L. 623-7   

Once the information is provided, each member of the class has the opportunity to come forward to opt-in to the action. The judge may set: (1) a time limit for class members to present themselves; and (2) an obligation to comply with any other conditions for joining the action. The period for opting-in set by the judge cannot be less than two months or more than six months. French Consumer code, art. L. 623-8

  • Implementation of the judgment and compensation

By joining the group, the members of the class give the association initiating the action the mandate to negotiate the appropriate level of compensation. 

Following judgment on liability, the association may negotiate and agree with the defendant on the amount of compensation within the limits set by the judge. A settling defendant is then required to distribute the agreed upon compensation for the losses suffered to the members of the class who “opted-in”. 

The judge that ruled on the liability must then approve the agreement, or partial agreement, reached between the parties and accepted by the members of the group concerned. 

Assuming that no settlement is reached between the parties, the judge is responsible for ruling on the compensation.

The class action procedure is terminated either by judgments of liquidation of damages, when necessary, or by the declaration of the extinction of the action.

2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.

There are no opt-out class actions under French law. 

3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.

Pursuant to article L. 623-1 of the French consumer code, class action proceedings can only be acted upon and initiated by approved consumer protection associations (representing the population at the national level). 

This procedure is reserved for the compensation of "individual damages suffered by consumers" with a common cause of action, which is the failure by one or more defendants to comply with their legal or contractual obligations. The representative must act on behalf of several consumers that are in a similar or identical situation. However, the law does not require that all the consumers concerned must have experienced identical or similar loss. The representative acts in the interests of all consumers.

Additionally, specific rules on standing apply depending on the type of class action initiated: 

  1. for class actions in the health sector: healthcare associations approved at the regional and national levels can bring a claim; 
  2. for class actions relating to breaches of personal data: the following have standing: (i) associations whose statutory purpose is the protection of privacy and the protection of personal data; (ii) consumer protection associations that are representative at the national level and formally approved; and (iii) representative professional unions when the processing of personal data affects the interests of the persons they represent; 
  3. for class actions in environmental matters: approved environmental protection associations carrying out their activity for at least three years in the field of environment protection  have standing to bring claims; 
  4. for class action relating to discrimination: the following have standing: (i) a representative trade-union organisation in the company, branch or the national and inter-professional level; or (ii) in the case of discrimination in hiring, anti-discrimination associations that have been in existence for at least five years. 

Finally, a representative bringing a class action can only represent natural persons. No class action can be brought to compensate legal entities for losses suffered. 

4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?

According to a recent parliamentary report prepared in the summer of 2020, only twenty-one class actions have been brought since the procedure was created in 2014. 4 Information report n°3085 of the French National Assembly on the results and prospects for class actions, 11 Juin 2020  

Among those twenty-one class actions, fourteen were in the field of consumer protection, three in the field of health, two in the field of discrimination, and two were breaches of personal data. 
Three actions resulted in mediation agreements and five judgments were dismissed (based on procedural issues, or because the action existed outside the scope of the available class action). All other actions are ongoing.

In this recent report, recommendations were issued for improving the class action regime under French law to make it more efficient. The following propositions were formulated: 

  1. enlarging the category of persons with standing to bring the action;
  2. authorising associations to advertise their pending actions to facilitate the identification of potential class members in the group;
  3. authorising full compensation, regardless of the nature of the damage suffered. 5 Id.      

5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.

The 2014 Law that introduced the class action regime in France initially restricted class actions to consumer and competition claims. 

Article L. 623-1 of the French consumer code restricts the scope of class action to: (1) the compensation of individual loss suffered by consumers who have a common cause of action against one or several defendants who breached their legal or contractual obligations when selling goods or providing services; or (2) to losses suffered as a result of anti-competitive practices. 

Several extensions have been added to the scope of class actions, including: 

  1. in the health sector 6 Introduced by the Law n° 2016-41 of 26 January 2016 : all persons suffering loss as a result of a fault related to the production, supply or delivery of a health product (e.g., medicines, contraceptives, cosmetics) can be compensated. This is only applicable to bodily injuries (i.e., damage to the health or physical and mental integrity of a person caused by a health product);
  2. in environmental matters: compensation is possible for material or physical damage suffered by a person resulting from harm done to the environment perpetrated by a person through failure to comply with its legal or contractual obligations 7 Introduced by the Law n°2016-1547 of 18 November 2016 ;  
  3. in matters related to data protection 8 Id. : when the processing of data affects consumers;
  4. in matters of discrimination: in the workplace or in the process of finding an internship or a job 9 Id.
  5. for collective damages suffered by tenants 10 Introduced by the Law n° 2018-1021 of 23 November 2018 : in matters related to compensation.    

6. What types of relief are available, i.e., damages and/or injunctive relief? 

Initially, class actions were only aimed at compensating material loss suffered by consumers. 11 French consumer code, art. L. 623-2   

Compensation for moral prejudice was initially excluded, but is now applicable to class actions in matters of discrimination and breach of personal data. 

As a general rule, damages are the main relief available, but injunctive relief can also be granted to stop misconduct in class actions related to environmental matters, discrimination and breaches of personal data.

7. On what basis are damages calculated i.e., compensatory and/or some other basis?

Pursuant to French law, there is a principle of full compensation of the damage suffered. 

Damages are generally calculated on a compensatory basis. Actual losses suffered, losses of opportunities and losses of profit can be considered when determining the damages to be awarded.
The objective is to place the victim in the situation where they would have been if the breach had not occurred. 

In certain cases, compensation in kind can also be available if applicable to the situation (e.g., free subscriptions for a certain period in class actions by consumer associations against phone operators). 

8. Are punitive or exemplary damages recoverable?

Compensation of victims, not the punishment of perpetrators, is the objective of the law for class action. Punitive damages cannot be recovered.  

9. Will domestic law need to be changed to comply with the Representative Action Directive?

Class actions as they are presented in the Representative Action Directive closely resemble French class actions. Each has a two-step process: a liability phase and a compensation phase. 

Transposition of the Directive should not necessarily lead to major changes in existing national class action mechanisms.

A few differences, however, exist between the French regime and the class action regime as presented in the Directive: 

  1. the Directive extends the scope of European "consumer" class actions to a wide variety of sectors, such as defective products; 
  2. contrary to French law, the Directive does not limit compensation to material damages, and allows the financing of class actions by third parties. However, the Directive leaves member states free to choose whether or not to implement this aspect. 

If there is no major change to the French class action regime after the adoption of the Directive, a choice will have to be made between a minimal overhaul or a more comprehensive reform of the legal regime of class actions, 12 Information report n°3085 of the French National Assembly on the results and prospects for class actions, 11 Juin 2020 according to the parliamentary report.

10. Are there special rules for settlement of class actions, e.g., requirement for court approval?

According to the French consumer code, mediation can obtain compensation of the individual damages suffered by the members of a class. 13 French consumer code, art. L. 623-22  Associations participate in the mediation, but members of the class do not.

The judge will review the mediation agreement and verify that it is in the interest of the parties. This approval will ensure that the agreement is enforceable and that necessary measures are taken to publish the mediation agreement and inform potential class members. This process is similar to the publication of the liability judgment. This is not a simple formality, but a real control over the suitability of the agreement.

11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?

There are no specific jurisdictional rules applicable to class action procedures. 

The Tribunal judiciaire (i.e., first instance court) ordinarily rules in class action procedures. 

The tribunal where the defendant resides has jurisdiction. If the defendant resides abroad or has no known domicile or residence, the Tribunal judiciaire of Paris will have jurisdiction. 14 French consumer code, art. R. 623-2  

The administrative tribunal can also have class actions brought against a public legal entity or a private organisation in charge of the management of a public service for failing to comply with legal obligations. 

There are no specific territorial limitations for members of the class. 

12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?

The judge will have to verify that all the conditions for the admissibility of the class action are met, including the admissibility of the association bringing the claim, and compliance with procedural requirements. 

  • Approval of the class representative

The first essential step is for the association to obtain a formal approval.

Only approved national associations can initiate class actions. Currently, there are only fifteen approved national associations, easily identifiable on the website of the Ministry of Economy and Finance (https://www.economie.gouv.fr/dgccrf/Liste-et-coordonnees-des-associations-nationales). 
Approval is granted by a joint order of the Consumer Affairs and Justice Ministers after consultation with the Public Prosecutor of the Court of Appeal, which has jurisdiction over the national association. 

The conditions for approval include: 

  1. On the day when the association requests approval, it must provide evidence and prove that it existed for at least one year since the date of its declaration at the prefecture;
  2. During this year of existence, the association must have a documented history of effective public activity defending the interests of the consumers and holding information meetings;
  3. the association must have at least 10,000 members on the date of the request for approval. 

The approval is granted for a five-year period and can be renewed. 

Before being able to bring a class action, a class representative must obtain formal approval and be registered on the list of approved national associations.

  • Admissibility of the class action 

In order to be admissible, a class action must be initiated by a writ of summons containing all the mandatory information required by the Code of Civil Procedures, including the court where the claim is brought, the object of the claim with a statement of the factual and legal arguments, the obligation to be represented by an attorney and the determination that, if the defendant fails to appear, a judgment may be given based solely on the elements provided by the class representative. 

The judge will also verify that a copy of the association’s decree of approval is provided with the writ of summons.  

Lastly, and under penalty of nullity of the action, the class representative must present the individual cases that support the action. 15 French consumer code, art. R. 623-3 The class action can only be brought on the basis of several cases of clearly identified consumers. Together these cases allow the judge to conclude the possibility that a larger group of class members has potentially been victimised by the actions of the defendant to whom the writ of summons is addressed.

If the judge concludes that all of the admissibility requirements are met, the case can be heard on its merits. 

13. Do you have specialist courts for these procedures?

There are no special courts in France for class action procedures. 

14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?

There is no discovery process under French law, and the same applies to class action procedures. 

However, the general civil procedure rules apply. Therefore, at any time of the proceedings, the judge may make an order for appropriate investigative measure for the preservation of evidence and the production of documents, including those held by the defendant. 16 French consumer code, art. R. 623-9    

15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?

There are no special rules on appeals in class action procedures, other than the fact that the class representative only – and not members of the class – can lodge the appeal in compliance with the standing rules for bringing a class action procedure. 

The closing judgment has the power of res judicata with respect to each of the class members whose loss has been compensated at the end of the proceedings. However, a consumer whose loss has not been compensated can bring an individual action against the professional, limited to the uncompensated loss. 

16. Can arbitration clauses lawfully contain class action waivers?

Pursuant to article L. 623-32 of the French consumer code, “Any clause that has the object or effect of prohibiting a consumer from participating in a class action shall be deemed unwritten”. An identical provision can be found under article 82 of the Law n° 2016-1547 of 18 November 2016, which extends the scope of class action proceedings to environmental matters, discrimination and personal data. 

As a consequence, no clause can lawfully contain class action waivers for consumers. 

17. Are contingency fee agreements permissible?

Contingency fees are strictly prohibited under French law. 

The fee agreement must be based on remuneration for the services performed, either through an hourly rate, or a flat fee agreed upon at the time of engagement.

However, the client and lawyer can agree on an additional fee, which will depend on the outcome of the case, as long as the original fee agreement is not considered negligible compared to this additional contingency fee.  

18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?

The French civil procedure code recognises the right for the winning party to have its costs covered. French courts are not known for their generosity, however, and the amount granted to the winning party is generally limited and rarely covers the costs incurred in the proceedings. 

In class action proceedings, during the judgment on the liability stage, the judge at his/her discretion may direct the defendant to provide an advance payment to cover the costs of the class representative who brought the claim. 17 French consumer code, art. L. 623-12  This is not a statutory requirement. The class representative must request the advance and it must cover the costs incurred for receiving claims from members of the class and, more generally, cover their representation in court for securing compensation.

19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

Litigation funding is not illegal in France, but it is not regulated nor is it commonly used either for unitary litigation or for class actions. 

However, discussions are underway for adopting regulations for litigation funding. The Representative Action Directive also provides an opportunity for member states to allow the financing of class actions by third parties. However, member states can decide whether or not to implement this.

See the Overview of the Representative Action Directive >>
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