FRANCE – PROPOSITION DE LOI
relative au régime juridique des actions de groupe
LAW PROPOSAL on the legal regime for group actions
N° 639 NATIONAL ASSEMBLY (15th December 2022)
Rapporteurs L. Vichnievsky and P. Gosselin (text currently awaiting examination)
In the explanatory opening, the rapporteurs note the lack of success of the group actions introduced by the law of 17 March 2014 relative à la consummation (on consumer law), supplemented and extended in 2016 and 2018. For example, fewer than 20% of the group actions brought in France since 2014 had a positive outcome, resulting in the liability of the defendant.
The aim of this proposal is to simplify the group action proceedings, thereby formalising the recommendations of the mission d’information (fact-finding commission) and ensuring improved compensation and efficiency when reaching a decision in group claims. The proposals take into account guidelines from the EU Directive on Representative Actions of 25 November 2020.
Crucially, there is a grouping together of different procedures that take place before the courts, which were previously found in various texts. A new Title (XV bis) ‘Group Actions’ is created within Book III of the Civil Code (‘CC’), dedicated solely to group actions.
The new regime has the following main qualities:
- It is founded on the pre-existing socle commun, a basis of common procedure or basic standards for group actions established in the law of 18 November 2016 on the Modernisation of Justice in the 21st Century.
- Compensation for the entirety of the damage suffered is the central objective of the collective action (new Art. 2053 CC).
- Standing to sue is extended to several types of NGOs. The requirements are also eased so that associations, which previously would not have been able to, can meet them. The categories of NGOs are as follows: 1. ‘Approved associations’ (no definition given in the proposal, but case-law is smooth in this regard); 2. Associations officially registered for two years (minimum) having the statutory purpose of the defence of the infringed interests; 3. Associations who act on behalf of at least 50 natural persons who claim to have suffered damage according to the conditions of Title XV (‘the Text’); 4. Associations acting on behalf of at least 10 legal persons, who, under private law, are registered in the Trade and Companies Register, have existed for two or more years, and who claim to have suffered damage under the conditions of the Text; 5. Associations acting on behalf of at least 5 local authorities claiming to have suffered damage according to the Text (new Art 2053-1 CC).
This article also broadens the role of the public prosecutor in group action’s proceedings. He or she may act as the main party and bring an action for cessation of the offending conduct, or may intervene as a joint party.
- A formal notice (which was compulsory under the law of 18 November 2016) is no longer necessary to bring an action.
- To ensure that affected, or likely affected, persons are informed, new Arts 2053-3 and 2057 CC enable associations and trade unions to publicise their collective action proceedings, and confirm that the Conseil national des barreaux will keep a national public register of them.
- The proposal creates a “civil penalty” (separate to the damages claimed). This order of the court is triggered where deliberate fraudulent conduct is found on the part of the professional who has caused the breach. The fine is allocated to the public Treasury, and cannot be insured against (New Art 2055 CC).
- To alleviate the costs usually burdened by the claimant, New Art 2055-1 CC aims to remove financial obstacles to the pursuit of group actions.
- Exclusive jurisdiction is given to specialised judicial courts to hear actions brought under Title XV bis. The list of designated courts is to be determined by decree (Art. 2 of the proposal).
- The various specialised group action regimes in the respective Consumer, Environmental, Public Health and Labour Codes, and those in the Act of 6 January 1978 on information technology, files and freedoms, and the Act of 27 May 2008 in respect of EU anti-discrimination law are removed. This also applies to the group action regime provided for in the Administrative Justice Code (Art 3 of the proposal).
- To strengthen the ‘unifying’ effect of the above, the group action regimes in the Administrative Justice Code and the socle commun of the Civil code are combined. This consolidated regime is included in the CC, and has the aim of promoting unified proceedings regardless of the defendant’s identity. The action can be brought in pursuit of either cessation or compensation for damage, whatever its nature (Art 4 of the proposal).
- The Act shall apply only to actions in which the event giving rise to the defendant’s liability occurred after its entry into force (Art. 5 of the proposal).