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France

Author: Duncan Fairgrieve and Alexandre Biard

I. Overview

Class actions as such did not exist under French law until 2014. Collective redress mechanisms principally relied on two separate proceedings, known as the collective interest action (action d'intérêt collectif) and the joint representative action (action en représentation conjointe). Due to procedural pitfalls, these mechanisms were however rarely used by litigants. Since the 1980s, the introduction of class action proceedings into the French legal system has been proposed on many occasions but has proved controversial. Until 2014, the various attempts were in vain.

In 2014, the class action (in French: action de groupe) was included into the Act reforming consumer law (Loi n°2014-344 du 17 mars 2014 sur la consommation, also known as Loi Hamon). The Act was passed by Parliament in February 2014 and cleared by the Constitutional Council in March 2014. The action de groupe was thus effective in France as of 1 October 2014. The action de groupe is currently restricted to consumer and competition law. It exclusively concerns compensation for losses resulting from material damage suffered by consumers. Recent draft legislation [hyperlink] reforming the French health system has nonetheless proposed its extension to health-related issues. In addition, a ministerial working group is also considering its introduction for discrimination cases..

A non-binding note released by the Ministry of Justice in September 2014 has pointed out that the primary objective pursued by class action proceedings in France must first and foremost remain victims' compensation. However, regulators (such as notably the competition Authority) have also expressed their interest regarding the proceedings' deterrent effect on infringers.

From a procedural point of view, the overall process is complicated, principally relying on consumer associations which have a monopoly for legal standing, and courts which have key responsibilities in regards to the monitoring of the action. The mechanism is multi-stage: during a first phase (liability phase), the court decides on liability issues on the basis of representative cases brought by the association. If the defendant is held liable, the court also defines in its decision the shape and the scope of the class action by determining the membership criteria, specifying the recoverable losses and the available remedies, and by selecting the most appropriate options to ensure an adequate mediatisation of the case. In a second phase (compensation phase), the group is constituted on an opt-in basis in accordance with the membership criteria previously set down by the court. Even though judges do not directly intervene during this second phase, judges may intervene should difficulties arise. Finally, in the final phase, the court intervenes to terminate the proceedings and, if necessary, to solve the remaining pending issues. This peculiar 3-steps approach in which the intervention of individual claimants is delayed after the ruling on liability has been justified by a desire to find an alternative to the American class action scheme and to alleviate the administrative burden usually associated with the resolution of mass claims.

The new French class action framework also provides for a simplified fast-track class action proceedings ('action de groupe simplifiée') to deal with situations in which claimants can easily be identified and the loss is identical, and also introduces the possibility of mass settlement agreements placed under judicial scrutiny.

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