Group action in France: a tool for defending your rights collectively

A defective product sold in thousands of copies, an unfair clause slipped into countless subscription contracts, unjustified bank charges deducted from the accounts of numerous customers... These situations, which are unfortunately common, often place victims in an awkward position. Individually, the damage suffered may seem too small to justify the cost and complexity of legal action. Faced with a powerful professional, the consumer or small business owner feels isolated and powerless. It was precisely to address this problem that group action was introduced into French law. This is a procedure enabling a qualified representative, such as an association or trade union, to take legal action on behalf of all those who have suffered similar damage as a result of the same responsible party, in order to obtain compensation for each of them.

The purpose of this article is to explain the basics of this legal tool: how it works in general, why it was created in France, where it can be used and who can use it. Understanding these basics is essential if you think you might be involved in mass litigation.

What is group action?

Group action, sometimes called "class action" in reference to the American model on which it is partly based, is therefore a specific legal procedure. It enables an entity authorised by law - generally an approved consumer association or a representative trade union - to take action before a court to defend the interests of a group of people who are in a comparable situation and who have been the victims of an identical breach committed by the same professional or liable party.

The primary and fundamental objective of this action is to obtain the compensation for individual damage suffered by each member of the group. The aim is not to defend an abstract general interest, but to ensure that each injured party receives concrete compensation for the damage they have personally suffered. Imagine an airline cancelling a flight without offering the legal compensation due; the aim of a class action would be to ensure that each passenger concerned receives the compensation to which they are entitled.

It is important not to confuse group actions with other types of collective action, such as actions to defend the collective interest. The latter, which is also conducted by associations, aims to have a violation of the general interest of a category of people sanctioned (for example, requesting the removal of an unfair term from all an operator's contracts, regardless of the individual damage already caused). Group action, on the other hand, focuses on compensation for damage already suffered by identifiable or identifiable individuals.

Group action can be said to rest on two pillars:

1. The role of the representative : It is not each victim who acts individually, but an association or trade union designated by law, which takes action on behalf of all.
2. Defending individual interests : The aim of the action is to obtain compensation for each injured party, not for the community as a whole.

Why was group action created in France?

The introduction of group action into the French legal landscape has been a long and debated process. For years, victims of mass injury faced major obstacles in asserting their rights.

Individual action has obvious limitations. Taking legal action has a cost (lawyers' fees, expert fees, procedural costs) that can easily exceed the amount of damage suffered, especially in consumer disputes where the sums involved are often modest. The complexity of the procedures and the length of the proceedings also discouraged many litigants. The result was a form of impunity for certain professionals committing breaches on a large scale, as the risk of being sued by each victim individually was low.

Historically, certain legal arguments have also been put forward to slow down its adoption, such as the adage "no one pleads by a solicitor", meaning that in principle, no one can take legal action on behalf of another without a specific mandate. There were also fears, sometimes fuelled by a caricature of the American class action system, of a risk of excessive "judicialization" or procedural abuses.

However, the need to offer effective redress to victims of mass litigation has gradually become apparent. Spurred in particular by European law and in the wake of some high-profile scandals, French legislators eventually incorporated this mechanism. Group action was first introduced into consumer law on a limited basis by the Hamon law of 2014. Its scope was then extended, notably by the law modernising our healthcare system in 2016 and above all by the law on the modernisation of the justice system for the 21st century (known as the "J21 law") of 2016which created a common base and opened up action in new areas such as discrimination, the environment and personal data.

The legislator's objectives in creating the group action are manifold:

• Improving access to justice for small claims where individual action is not cost-effective.
• Rebalancing the balance of power between consumers/users and powerful professionals.
• Ensuring effective remedy mass casualties.
• Having a deterrent effect on companies tempted by large-scale illegal practices.

In what areas can a group action be launched?

French law currently provides for the possibility of launching a group action in six main, well-defined areas. There is not (yet) a "universal" group action applicable to all types of dispute. Here are the areas concerned:

1. Consumer law : This is the historical scope of group action. It covers breaches by a professional in the sale of goods, the provision of services or the letting of a property. It also covers losses resulting from anti-competitive practices (cartels, abuse of a dominant position). This is typically the case for mass disputes relating to contracts, defective products (excluding serious personal injury), unfair terms or misleading commercial practices.
2. Public health : This action makes it possible to seek the liability of a producer, supplier or service provider for personal injury caused by certain health products (medicines, medical devices, cosmetics, etc., listed in the French Public Health Code). It was developed following major health incidents.
3. Discrimination (general) : Its aim is to put a stop to direct or indirect discrimination (based on origin, sex, age, disability, etc.) and to obtain compensation for the harm suffered by a group of individuals as a result of the same person (who is not necessarily an employer).
4. Discrimination in the workplace : Specific action for discrimination committed by an employer against job applicants, trainees or employees. It has specific procedural rules, particularly concerning the losses that can be compensated for employees already in post.
5. Environment : This action provides compensation for personal injury and material damage suffered by a group of people (individuals or legal entities) as a result of damage caused to the environment in certain specific areas (pollution, nuisance, damage to nature, etc.).
6. Personal data: Introduced in response to the challenges posed by digital technology, it enables action to be taken against a data controller or processor in the event of a breach of the RGPD or the Data Protection Act, in order to obtain compensation for the material and non-material damage suffered.

Each of these areas has its own specificities in terms of the precise conditions for taking action, which we will discuss in more detail in future articles.

Who can launch a group action?

One of the key features of the French system, in contrast to the American model for example, is that the initiative for group action is not left to just any victim or enterprising lawyer. French law has reserved this option for representatives specifically authorised by law.

These are mainly :

• Approved associations: Depending on the field, these may be nationally-approved consumer associations (for consumer action), approved health system user associations (for health action), approved environmental protection associations, or associations specialising in the fight against discrimination or the protection of privacy. The purpose of accreditation is to guarantee the seriousness, competence and representativeness of the association.
• Representative trade unions: They are empowered to act in group actions concerning discrimination in the workplace, and sometimes also concerning general discrimination or personal data when the processing affects the people they represent by statute (employees, civil servants, magistrates, etc.).

The decision to entrust these entities with a monopoly is intended to provide a framework for the procedure, to avoid fanciful or purely lucrative actions, and to ensure that the action is carried out by a structure with the resources and legitimacy to defend the interests of the group.

However, this system also has its limitations. The number of authorised associations is sometimes very small (only fifteen for consumer action at national level). What's more, these bodies do not always have sufficient financial and human resources to launch long and costly proceedings against large companies, which partly explains the mixed results so far achieved by group actions in France. The question of funding these actions remains a major challenge.

If you believe that you are one of the victims of a breach in these areas, understanding how group action works is the first step. For an analysis of your specific situation, contact our firm.

Sources

• Law no. 2014-344 of 17 March 2014 on consumer affairs
• Law 2016-41 of 26 January 2016 on the modernisation of our healthcare system
• Law 2016-1547 of 18 November 2016 on the modernisation of the justice system for the 21st century
• Consumer Code (Articles L623-1 et seq., R623-1 et seq.)
• Public Health Code (Articles L1143-1 et seq.)
• Environment Code (Article L142-3-1)
• French Labour Code (Articles L1134-6 to L1134-10)
• Law no. 78-17 of 6 January 1978 on data processing, data files and individual liberties (Article 37)
• Law no. 2008-496 of 27 May 2008 containing various provisions for adapting to Community law in the field of anti-discrimination (Article 10)