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Author: Duncan Fairgrieve and Alexandre Biard

VIII. Data

The empirical data under this heading were gathered from the European Commission Report "State of Collective Redress in the EU in the Context of the Implementation of the Commission Recommendation". You can reach the report from the link: Collective Redress Study for the European Commission

The following empirical data were gathered from lawyers potentially representing defendants, and an organisation potentially representing defendants. The respondents have knowledge on the collective redress mechanisms implemented in France, but no direct involvement.

For most of the respondents, not being involved in collective redress is mostly an issue of timing. Collective redress is still a new mechanism in France. However, for one of the lawyers potentially representing defendants, not being involved in collective redress is related to an issue of scope. Their main area of practice is passenger rights, mostly in cases of accidents resulting in physical injuries. There is room for group actions in such cases, but the scope of the French mechanisms does not provide for them. The mechanism is sectoral and limited to consumer, competition, health, environment, data violation and discrimination. Passenger rights following an accident could potentially be covered by the consumer mechanism; however, compensation is limited to material damages. Physical and moral harm cannot be compensated.

Respondents are divided regarding the scope of standing. One respondent believes in strict requirements as to standing, and in the exclusion of "ad hoc" entities, as is the case in French law. They also think the scope of standing implemented in the new group actions in environment and health law is too broad. In environment matters, certification can be given for broad goals, for instance "defence of the economic interests" of the members of an association. Regarding discrimination, associations just need to self-declare, with no need for agreement or certification.

Another respondent agrees, mentioning the requirements for sufficient resources and years of existence are necessary to ensure efficient proceedings. They also mention the broad scope of standing in the sector of health law, where around 480 associations have standing to bring a claim. This is way more than the 15 associations accredited in consumer law, and it raises concern whether or not all these associations have sufficient experience or means to bring a claim.

On the other side, one respondent thinks the 'one year of existence' requirement for consumer matters limits the flexibility necessary in certain cases. Representative entities cannot be designated ad hoc, although ad hoc entities are particularly relevant in certain specific cases, such as those involving passenger rights in accident claims.

The respondents agree access to justice is enhanced by collective redress, in particular in the cases where, on their own, consumers would have never brought an individual claim because of disproportionate costs regarding the actual damage. Nonetheless, one respondent mentions that in practice, access to justice is better guaranteed by other already existing mechanisms. In particular, in the sectors of health law and data protection, independent bodies exists, and are fast and efficient mechanisms. In health law, the Commission for Conciliation and Compensation (CCI) provides for a free, out-of-court, experts based mechanism, with the issuance of a recommendation that a court can enforce in case of non-compliance. In the sector of data protection, the National Commission on Informatics and Liberty (CNIL) ensures that the data privacy law is applied, warns non-compliers and can report them. The new collective redress mechanism in data protection cannot lead to compensation, thus its necessity is questioned regarding the existing efficiency of the CNIL.

Another issue is raised regarding the sector of data protection. Although the collective redress mechanism cannot lead to the compensation of the damage, one condition of admissibility is to clearly define and prove a damage. The necessity of this condition is questioned by one of the respondent, who mentions as well that it creates an additional difficulty on the claimants' side, as damage in the area of data protection are difficult to demonstrate. Access to justice is thus not necessarily improved in that sector.

Because of the length and complexity of the proceedings, 67% of the respondents do not believe collective actions are an effective way to obtain compensation. Out of the ten actions brought in France since 2014, two were settled, and the others have their decision on admissibility still pending. The process istoo long for 67% of the respondents, who believe other existing mechanisms are faster and more efficient, such as a conciliation before the CCI in the sector of health law. One respondent argues nonetheless that "the opt-in mechanism enhances the access to justice for consumers with limited damage (who would not have brought an individual claim otherwise) without impacting too significantly on the length of the proceedings".

The respondents are divided on the issue of abusive litigation. Even though in the current state of the French mechanism, no abusive or frivolous cases were brought, 67% of the respondents warn against the possibility of it. One of them raises concern about the representative entities bringing claims for the sake of media attention,and not in the interest of the victims.

Regarding legal costs, as explained by one of the stakeholders, "the courts have some discretion as to the extent of how the 'loser pays principle' is applied. In France, cases have yet to get to the second stage, where the court sets the quantum and nature of damages, and rules on fees and court costs. Thus, in theory, the loser pays principle may discourage frivolous and abusive actions, but the court decisions will really show it is applied in practice."

In general remarks, the necessity to regulate the operation of third-party litigation funding is mentioned. One of the stakeholders points out that "the main abuses observed in the countries where class actions flourish are explained by poorly supervised funding conditions, leading to the excessive remuneration of third parties to the detriment of the victims". Although not used in France, third party funding is unregulated, and it could lead to a profitable business for private entities if collective actions pick up more steam in the years to come.

One respondent highlights the necessity to further develop collective Alternative Dispute Resolution mechanisms, and to make it mandatory in the health sector. Mediation/conciliation is indeed a relevant method to settle health disputes, but professionals might be reluctant to agree to it because of the implied message it sends to the public about their fault/responsibility. Making conciliation mandatory would alleviate this reluctance.

The issue of parallel proceedings is not dealt with by the French collective redress mechanism. This raises questions for one of the respondents, as to how such a situation would be handled, and about the risk of contradictory decisions between individual and collective proceedings relating to the same issue, or between different collective actions on the same issue.

Finally, collective redress in France would benefit from more clarity. The alleged 'common ground' mechanism implemented in 2016 features many exceptions, and does not apply to consumer law and health law. The sectoral approach to collective redress in France also implies a certain number of different laws on the topic, which adds to the complexity.


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