11 11月 2024
Insight
Global
The landscape
Class actions (“actions de groupe”) were introduced in France in 2014 by the Consumer Act 2014-344. Initially dedicated to consumer disputes, they later extended to health, environment, personal data protection, workplace discrimination and rental property matters. However, by 2023, only 35 class actions had been brought due to the procedure’s length, complexity and cost. No company has yet been found liable in France as a result of a class action.
Difficulties in bringing class actions in France include strict requirements that an association of plaintiffs be accredited and sometimes established for a certain period. Furthermore, French law favours the opt-in system, which means that victims must expressly manifest their intention to join the class action. French law does not recognise punitive damages and allows only for compensatory damages that strictly cover the harm suffered by the victim. Finally, there is no discovery procedure in France, which makes it hard for plaintiffs to discharge the burden of proof.
In the health sector, class actions are limited due to the difficulty in demonstrating similar or identical bodily harm. Causation can be difficult to prove if the patient had a pre-existing condition.
Legal complexity and lack of precedents make it difficult for French companies to manage class action risk. Nonetheless, they will soon need to pay significantly more attention to this area. This is likely to occur as France transposes the EU Directive on class actions into stronger domestic laws.
Since 2022, a bill has been debated before the French parliament to simplify and strengthen France’s class actions regime. Under the proposed reforms, the ability to pursue class actions in France will be extended to almost all areas, including new areas such as operation of public services, climate, transport, energy supply and defence of local authorities".
Martin Le Touzé
Disputes partner, Paris
Current developments
Since 2022, a bill has been debated before the French parliament to simplify and strengthen France’s class actions regime. This bill is intended to make it easier to sue, extending the scope of the law to more plaintiffs, sectors and types of damages. It would also better compensate victims and reduce decision times.
Specialised courts would be appointed to deal with group actions. Concentrating litigation in a limited number of courts would encourage the development of expertise and faster judicial handling of these cases. To remove the financial obstacles to group actions (which can amount to tens of thousands of euros), the cost of the procedure would be reduced by allowing the judge to charge the state for some or all of the costs incurred by the plaintiff associations.
While regulatory bodies in France do not play an important role with respect to class actions, the proposed reform gives power to the public prosecutor to initiate or intervene in a case.
Future trends
Under the proposed reforms, the ability to pursue class actions in France will be extended to almost all areas, including the operation of public services, climate, transport, energy supply and defence of local authorities. There will be a general right to put an end to the breach or repair the damage. All types of injury (bodily, material and non-material) will now be compensable.
So far, no class action has yet been brought concerning cyber security in France and only two for breaches of personal data. However, managing cyber risk will be an area of increasing concern in coming years. Companies appear to be focused on prevention, training and raising awareness among their employees about cyber security.
Solutions include prioritising the use of virtual private networks, proxies, URL filtering and email gateways. The establishment of an action plan to develop cyber risk insurance and address the growing challenges that could threaten the economic health of businesses.
Next steps for business
Reputational concerns are incentivising French companies to take more proactive measures to reduce class action risk. Examples include auditing contracts, addressing customer complaints, improving after-sales services, making commercial gestures and adopting a dispute resolution policy oriented towards amicable agreements. Settlement with victims is preferable to the reputational risk of a public court ruling.
Notable casesA recent class action brought by the association "UFC-Que Choisir" against Natixis Investment Managers International (NIMI) demonstrates the difficulty of success.Several consumers who had invested in funds managed by NIMI claimed 35 million euros in damages relating to commissions they alleged were improperly charged. The Paris Judicial Court dismissed the action because it was considered that the condition relating to the similarity of the consumers’ situations was not met. Further, NIMI was not performing any “service” within the meaning of the French class actions law. The association was condemned to pay damages to NIMI for the costs incurred. In another case, an association brought a class action against a Sanofi laboratory and its insurers to obtain compensation for damages suffered by children exposed to the drug Dépakine. In 2022, the Paris Judicial Court ruled that the laboratory was liable for having marketed a defective product and for having failed its obligation to provide updated information on the drug’s risks. An appeal has been lodged. |
Chapters
- Class Actions radar: Scanning global trends and risks
- Class Actions radar: Australia
- Class Actions radar: United Kingdom – General (England and Wales)
- Class Actions radar: United Kingdom – Competition
- Class Actions radar: France
- Class Actions radar: Germany
- Class Actions radar: Italy
- Class Actions radar: South Africa
- Class Actions radar: Spain
- Class Actions radar: Thailand
Key contacts
Legal Notice
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2024
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