How the class actions regime has been reformed in France

By introducing a unified legal framework and aligning national law with EU standards, France seeks to make class action litigation more effective and transparent, while maintaining procedural safeguards.

France is just one EU member state taking action to implement the EU’s 2020 directive on representative actions. As others do so too, the prospect of a more integrated and balanced European approach to collective litigation moves closer. 

Below, we look at the what the new French law provides in more detail.

What are class actions?

Class actions are collective legal proceedings that enable multiple claimants to bring claims together in a single action. Class actions have their origins in the US but have since made their way into other legal systems worldwide.

Though designed to enhance access to justice and ensure effective redress, class actions have often drawn criticism, particularly where they disproportionately benefit legal representatives over the underlying claimants they act for or unduly pressure defendants into settlements regardless of liability. 

The EU directive on representative actions 

In the EU, the way that collective redress has been provided for has differed from country to country. To address the fragmented approach, EU policymakers proposed a new directive which law makers adopted in 2020.

The directive seeks to establish a harmonised framework for representative actions aimed at protecting the collective interests of consumers. It applies, notably, to cross-border actions, where a qualified entity initiates proceedings in a member state other than the one in which it was designated. 

The French legal framework and its reform 

Historical context

Class actions, or ‘les actions de groupe’, were originally provided for in French law in 2014 through legislation known as the Hamon Act. That law provided for class actions in relation to consumer law breaches. Subsequent legislation extended the mechanism to encompass personal injury caused by health products in 2016, and then anti-discrimination law, data protection, environmental protection and, separately, real estate rentals, in 2018. These successive reforms led to a fragmented system based on seven distinct legal regimes.

Despite this legislative activity, uptake of the legal rights to lodge class actions has been limited in France. According to the Gosselin-Vichnievsky report in2020, only 21 class actions had been initiated at that time: 14 in consumer law, three in health, two in anti-discrimination, and two in data protection. 

Legislative reform and transposition of the directive 

In anticipation of the transposition of the EU representative actions directive, a bill was introduced into the lower house of the French parliament, the Assemblée nationale, in 2023. The bill was introduced by law makers Philippe Gosselin and Laurence Vichnievsky, the members of the lower house behind the 2020 report. Although their proposal was ultimately withdrawn, the government later introduced its own draft legislation. Last month, a legislative compromise was reached between the lower house and the upper house, the Sénat, and the Conseil constitutionnel, the French supreme court for constitutional matters, declared the bill constitutional on 29 April. The Act has now taken effect.

Main features of the new regime 

The newly adopted Act replaces the prior sector-specific framework with a single general regime for class actions. Under this system, actions may be brought by approved associations on behalf of multiple natural or legal persons who are in a similar situation to one another, arising from a breach of legal or contractual obligations committed:

• in the course of a professional activity; 

• by a public law entity; or 

• by a private law body entrusted with the management of a public service. 

Cross-border actions are expressly permitted, in line with the directive. 

Under the new regime, the scope for compensation for harm suffered has been extended to include all types of damage, irrespective of nature. Claimants can seek both compensation for damage and the cessation of unlawful conduct. 

Procedural structure 

The procedural architecture under the new Act remains largely consistent with the 2014 Hamon Act. The court must first determine the liability of the defendant. Upon establishing liability, the court defines the group of persons eligible for redress and orders public notification of the ruling. Potential claimants may then join the class within a period ranging from two months to five years, as specified by the court. 

Safeguards against ‘Americanised’ class action risks  

The Gosselin-Vichnievsky report in 2020 emphasised the risk of France adopting the more controversial features of the US class actions model. Safeguards have been built into the new French Act to address this.

For example, unlike the US opt-out system, where claimants are automatically included as parties to a claim unless they choose otherwise, the French system requires an explicit expression of intent to join the class prior to judgment. 

The French legislation also does not provide for the award of punitive damages. French courts are restricted to awarding compensatory damages. Punitive damages, which are available in US class actions to penalise egregious conduct, are not permitted. 

In addition, in France, lawyers are prohibited from soliciting clients or initiating actions on their own initiative, in contrast to US practices. Contingency fee arrangements are also strictly regulated. 

Co-written by Valentin Pinel Le Dret of Pinsent Masons.