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France

Author: Duncan Fairgrieve and Alexandre Biard

I. Factsheet

Scope

French law does not provide for a horizontal collective redress mechanism.

Sectoral mechanisms are implemented in consumer, competition and health law (compensatory), discrimination and environment (injunctive and compensatory), and data protection (injunctive).

Standing

In all sectors: associations must be duly registered, with for statutory aim to protect these specific rights.

Consumer and competition: national representative consumer associations accredited by the government, with at least one year of existence.

Discrimination: trade unions and associations with five years of existence.

Admissibility

The admissibility of the claim is dealt with in the first stage of a collective action.

Information on Collective Redress

After a final decision on admissibility, the court decides on the publicity measures to be taken, costs borne by the defendant.

Information about ongoing consumer collective redress proceedings is available on the website of the National Consumer Institute.

Problems/Incompatibilities with Recommendation principles

Publicity campaigns undertaken by parties: it appears that associations have accompanied their filings with intensive outreach campaigns launched at the very first stage of the action. This creates reputational costs for companies. In reply, companies develop their own information strategies targeting individuals.

Lawyer-driven litigation: Some initiatives have encouraged the launch of web platforms aiming at informing individuals andat collecting complaints against companies (for instance: www.actioncivile.com)

Funding

The current regime provides for public support of group action proceedings.

To date, the associations bringing the claims have been funding the actions.

The court can direct the defendant to provide the claimant association(s) with advance payments in respect of costs and expenses arising out of constitution of the group.

Problems/Incompatibilities with Recommendation principles

There is no specific provision relating to third party funding

Cross Border Cases

Currently no collective action involves foreign plaintiffs.

There are no specific rules or limitations as to the participation of foreign claimants.

Expedient procedures for injunctive orders

Under art. L621-9 of the Consumer Code, the association can intervene and ask the Court to apply, where necessary, injunctive relief: if the Court recognises a violation, it can order interim and conservatory measures.

Efficient enforcement of injunctive orders

The judge who ruled on liability also decides on difficulties which might arise during the implementation stage of the judgment.

The association is deemed to be a creditor and can request interim and conservatory measures to compel the defaulting debtor to perform its obligation, if necessary under penalty in the case of non-compliance.

Opt In/Opt Out

Opt-in system

Consumer and competition: following the judgement on liability and after the implementation of publicity measures, consumers have up to six months to join the proceedings.

Health: the time limit for opting in is between six months and five years.

Collective ADR and Settlements

Associations can settle the case on behalf of the claimants. Judicial approval is required for any out of court settlement agreement.

The settlement agreement must specify the publicity process, the dates and the criteria for inclusion in the settlement and the court must verify that the settlement agreement correctly and sufficiently protects the claimants' interests.

Costs

The court may order the losing party to pay the winning party's lawyer's and/or expert's fees (taking into consideration rules of equity and financial condition of the party).

Court costs are usually borne by the losing party unless the judge decides otherwise.

Lawyers' Fees

Contingency fees are prohibited. Result-based fees are only possible if they remain a complement to hourly-based fees.

Prohibition of punitive damages

Punitive damages are currently prohibited under French law.

Collective Follow-on actions

Competition group actions are exclusively follow-on actions: they are authorised only after a final decision from the National Competition Authority, the European Commission or a court which has identified anticompetitive behaviour.

Interplay between injunctions and compensation across all sectors

Compensatory and injunctive reliefs in one single action can only be sought for discrimination and environment violations.

In consumer, competition and health law, only compensation can be sought with a group action. However, a cessation of the breach can be obtained through the use of interim measure justified by an imminent harm, or to stop a manifestly illegal act.

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