On 24th January 2024, the French Senate’s Law Commission submitted a report on the reform of the French group actions legal framework.
Introduced into French law by Law no. 2014-344 (also known as the ‘Hamon Law’), group actions have, to date, met moderate success in France. Only 35 actions have been initiated within almost ten years.
The most emblematic group action is certainly that of Depakine, initiated by APESAC (a French association representing victims of sodium valproate) against the laboratory SANOFI.
The lack of attractiveness of French group actions can explained by the fact that :
- They are limited to a number of areas: consumer affairs and anti-competitive practices, health, environment, personal data protection, discrimination at work and property rental.
- Claims may only be initiated by approved associations.
- The opt-in mechanism, which requires victims to take steps to obtain compensation.
I. Proposal of reform of 15th December 2022
On 15th December 2022, the French National Assembly registered draft law no. 659 on the legal regime for group actions.
The aim of this proposal was to encourage the use of group actions in France through :
- A broader scope of the group action so that it can be applied to all legal fields ;
- A broader scope of compensable injuries, allowing, for example, compensation for injuries other than bodily injury in the field of health law ;
- A broader notion of standing: the aim was no longer to restrict standing to approved associations alone, but to include all associations that had been duly registered for two years, representing at least 50 natural persons or 5 legal or 5 local authorities or their groupings ;
- A common procedural framework for group actions, whatever the subject matter ;
- The incorporation of the European directive on representative actions, which provides in particular for the possibility of initiating trans-European group actions ;
- The setting up of a national register of group actions.
II. Opinion of the French Senate Law Commission
The French Senate Law Commission modified the proposal as follows :
- It considers that the broadening of the material scope of group action would entail risk of ‘abuses’ in the areas of employment law and health. According to the rapporteur, an excessive openness in these areas of law could be detrimental to ‘practitioners and professionals who are unable to defend themselves adequately against the reputational risk of such actions’ against them;
- It has limited the criteria that must be met by associations to raise a group claim. The goal is to prevent a number of associations, described as ‘malicious’, from making use of these procedures: the associations will have to be approved by an administrative authority and present guarantees of seriousness and transparency, concepts that are very little explained in the French Senate Law Commission’s report ;
- It abolished the civil fine mechanism provided for in the proposal: the French National Assembly had proposed to introduce a civil penalty in the event of intentional misconduct, with a view to obtaining an undue gain or saving. The fine would have been paid to the State Treasury. The amount of the fine would not have exceeded twice the profit made for natural person, and 3% of average annual turnover for companies ;
- It has extended the content of the national register of group actions to all group actions, collective actions and actions for recognition of rights, whether they are ongoing or closed or have been withdrawn. The proposal limited the register to pending actions only ;
- Finally, the French Senate Law Commission has chosen to abolish provisional enforcement of the judgment on liability.
The amended text will be publicly examined by the Senate from 6th February 2024 on.
Comments by Solenn Le Tutour
At a time where courts are being called upon more and more by class actions, which are time-consuming and complex to manage, it seems inaudible and anachronistic, to say the least, that the French legislator intends to further limit the use of group actions, which exist in any case in the form of joint class actions and which, in their current form, exhaust the court registries, magistrates and lawyers, not to mention the claimants.
These actions, which aim to bring together a number of claimants in a similar situation against one or more defendants, are likely to develop significantly and continuously over the next few years.
The group action is also intended to facilitate the work of legal professionals, who are overlooked in these discussions, which appear to be disconnected from the practical issues raised by mass collective actions outside the group action framework.
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LE TUTOUR represents French and foreign victims in mass litigation in France, particularly in relation to defective medical devices, and in particular the PIP breast implant litigation. The firm therefore closely monitors developments of the French group actions legal regime.