Merricks v Mastercard Inc : Collective Actions Re-invigorated...
BIICL has recently worked with the German public body, the Gesellschaft fur internationale Zusammenarbeit (GIZ) on a collective redress project....
With special thanks to Cécile Derycke and Charles-Henri Caron, Hogan Lovells, Paris
This content has been originally published by Hogan Lovells
On 15 October 2014, the bill relating to the health sector has been submitted during a session of the Council of Ministers by the French Minister for Health, Mrs Marisol Touraine. Article 45 of this bill provides for the introduction of
class actions in matters relating to health. The bill will be discussed at the French National Assembly in early 2015. The member of the National Assembly Hélène Geoffroy has been appointed as rapporteur regarding, notably, class actions in matters relating to health.
Based on the principles held by Law no. 2014-344 of 17 March 2014 that introduced class actions in the consumption sector (the so-called "Hamon Law"), this bill could deeply affect actions related to health products in France.
The main elements of these class actions pursuant to this bill are the following.
The action would aim at gathering the claims for compensation for "individual losses sustained by users of the health system, who are in an identical or similar situation, such losses having for common cause a breach [...] of their legal or contractual obligations" committed by a manufacturer or supplier of a health or cosmetic product, or by the service provider using this product. Class actions could also be initiated directly against the insurer of one of these professionals.
The action would have to be initiated by a registered association representing users of the health system. Contrary to the Hamon Law, these associations could be representative at a national or local level.
The bill provides for the possible recourse to optional prior mediation. Mediation could be ordered by the court at the request of one of the parties, after examination of the admissibility of the class action. A commission assisting the mediator would be in charge of suggesting to the parties an amicable compensation agreement for losses at the origin of the action. This prior mediation mechanism could, in some situations, enable to prevent an excessive referral of disputes to courts and media exposure of the claims.
In the absence or in case of failure of prior mediation, the bill first provides for a collective stage regarding liability. The court to which the association would refer the dispute would have to hand down a judgment through which it would, notably:
- rule on the alleged liability of the defendant "in light of individual cases submitted by the association representing the claimants";
- define the group and set the connecting criteria;
- determine "the bodily injuries likely to be compensated";
- order the defendant to bear the costs of the publicity measures relating to the decision, which would only be implemented once it would no longer be possible to appeal against the judgment on liability, like it is the case in the scope of the Hamon Law; and
- set the maximum time allotted to join the group (ranging from 6 months to 5 years from the completion of the ordered publicity measures).
Secondly, an individual stage would be provided for, during which the claimants could request "individual compensation for the sustained loss" from the person(s) found liable by the judgment on liability. Requests that would not be granted could be referred to the court having jurisdiction in order for it to rule on the alleged losses.
Entry into force would be scheduled for 1st July 2016 at the latest. The provisions relating to class actions in matters relating to health would not be applicable to breaches having ceased prior to their entry into force.
It is still surprising that this bill provides for the introduction of class actions in matters relating to health whereas class actions in matters relating to consumption have just come into force. Besides the difficulties relating to the eminently individual nature of bodily injury, the current haste is not very opportune due to the absence of hindsight regarding class actions "à la française". The parliamentary debates will probably be substantial.