French law does not provide for a horizontal collective redress mechanism. However, sectoral mechanisms are implemented in consumer, competition and health law (compensatory), discrimination and environment law (injunctive and compensatory), and data protection law (injunctive).
Collective redress (as action de groupe) was introduced for consumer and competition law in the 2014 consumer law reforms (Loi n°2014-344 du 17 mars 2014 sur la consommation, also known as Loi Hamon). The group action mechanism was subsequently extended to health law (Law n° 2016-41 of 26 January 2016), and to discrimination, environment and data protection (Law n° 2016-1547 of 18 November 2016).
The action de groupe is available in the areas of consumer protection, competition, health, discrimination, environment and personal data. The entities allowed to bring a collective action must be duly registered, and have as their aim the protection of these specific rights. Associations can settle the case on behalf of the claimants, and judicial approval is required for any out of court settlement agreement.
Regarding available remedies, group actions in the areas of consumer protection and health law can only lead to compensatory relief. However the representative entity can intervene and ask the Court to apply, where necessary, interim measures. If the Court recognises a violation, it can order a cessation of the breach, if necessary under penalty in the case of non-compliance. In the other areas, both injunctive and compensatory reliefs are available, except for data protection violations where relief can only be injunctive.
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.
According to the French group action regime, which follows a multi-stage approach, a group is constituted via an opt-in system after the decision on liability has been reached. During the first stage of a collective action, the court decides on the publicity measures to be taken in order to inform the relevant consumers.
The judge who rules 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.
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. Contingency fees are prohibited. Result-based fees are only possible if they remain a complement to hourly-based fees.
As to 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. There is no specific provision relating to third party funding
BIICL has recently worked with the German public body, the Gesellschaft fur internationale Zusammenarbeit (GIZ) on a collective redress project....