Sylvie Gallage-Alwis and Anélia Naydenova discuss trends affecting class action litigation in France in Chambers’ Collective Redress & Class Actions 2024 Guide

The French Class Action and its Recent Developments

Group claims, as well as the number of class actions, are on the rise. Although the numbers in the European Union are much lower than in the United States, they are starting to become a concern for companies, and they are taken into account by in-house legal teams as part of their assessment of the risk exposure of their companies.

However, France is not the main concern for now when it comes to class action – although it is for mass litigation (ie, multiple individual claims that are analysed by courts at the same time given their similarities).

This is why a new bill was proposed and adopted by the National Assembly on 8 March 2023, aiming to align the more cautious French class action system with the more expansive American model.

However, the latest political events in France, marked by the dissolution of the National Assembly by President Emmanuel Macron on 9 June 2024, led to the interruption of all parliamentary work in progress, including the bill to reform the French class action.

Now that France has elected its new MPs and parliamentary work discussions have resumed, changes to the French class action regime may again be on the horizon and deserve a closer look.

A significant reform that has been held back

The class action appeared in France in 2014 through the so-called Hamon Law (Law No 2014-344 of 17 March 2014 on consumer affairs). The mechanism was governed by the French Consumer Code as it was initially only applicable to consumer law matters (damage resulting from the sale of goods, the provision of services or anti-competitive practices). Successively, the legislature extended the scope of the class action to health and cosmetic products (Law No 2016-41 of 26 January 2016 on the modernisation of our healthcare system), protection of personal data, discrimination in the workplace, and environmental issues (Law No 2016-1547 of 18 November 2016 on the modernisation of the justice system for the 21st century).

Despite the extension of the class action to a wide range of areas, only a few plaintiffs have made use of it. Since the 2014 law came into force, 35 class actions have been brought, and only one decision has resulted in a company being held liable (the pharmaceutical laboratory Sanofi was found liable on 5 January 2022 by the Paris Civil Court in connection with its antiepileptic drug, Depakine). This situation, described as disappointing by the MPs Ms Vichnievsky and Mr Gosselin in a parliamentary report, has led the French National Assembly to rethink the class action regime, with the aim of unifying and simplifying it to encourage more claims in the future.

Thus, on 15 December 2022, a bill amending the legal regime of the class action was submitted to the National Assembly, which promptly adopted it on 8 March 2023 and referred it to the French Senate the following day (the “Bill”). The Bill, as adopted by the National Assembly, was ambitious and introduced significant changes, such as the extension of standing to entities other than approved associations, the widening of the range of losses that can be compensated, the abolition of the requirement for prior formal notice and the creation of a civil penalty in the event of intentional misconduct causing serial damage. The main objective of these measures was to make the French class action accessible to potential plaintiffs and, simultaneously, dissuasive for professionals.

However, the French Senate was reluctant to approve these measures: it debated them at length in the public session held on 6 February 2024 and, ultimately, reversed most of them. The senators considered that, in the interests of control and transparency, only approved associations by a public authority should act to initiate a class action, that prior formal notice favoured the amicable resolution of disputes, and that civil penalty was tantamount to punitive damages, which are not permitted under French law.

Clearly, there are strong disagreements between the National Assembly and the Senate over the reform of the class action regime. On 23 July 2024, after the French had elected their new deputies, the Bill was submitted to the National Assembly for a second reading. Nonetheless, as the former government had initiated the fast-track procedure for this Bill, the newly appointed government may convene a joint committee of seven MPs and seven senators to reach agreement on a compromise text. Thus, ten years after its introduction into the French legal landscape, the class action could undergo a certain overhaul, even if the current political situation suggests that it will not be a priority.

Impact court rulings issued in 2024

Considering the low number of class actions brought in France, it is not surprising that few decisions have been issued since January 2024.

A recent decision relates to the class action initiated by the union Confédération Nationale du Travail (CGT) against the bank Caisse d’épargne et de prévoyance d’Île-de-France (CEIDF) for gender discrimination. However, without going any further into the regime, the Parisian court rejected the bank’s appeal on a purely procedural ground (Paris Court of Appeal, 16 May 2024, No 23/16079). A decision from the French Supreme Court is awaited, which we hope might be more instructive.

Although court rulings on the merits are rare, two other decisions which provide valuable guidance on the class action regime are worth mentioning. The first one concerns the condition of similarity of cases and the qualification of “provision services” under French consumer law. The second one tackles the jurisdiction to order investigative measures in health class actions.

The condition of similarity of cases and the qualification of “provision services” under consumer law

On 3 April 2024, the Paris Civil Court handed down a ruling regarding the action brought in 2018 by the consumer association UFC-Que choisir against Natixis Investment Managers International, alleging that the consumers had suffered loss as a result of investing in financial products, and more specifically in structured funds. Natixis had guaranteed the repayment of the capital invested by its clients when their investment matured. However, due to commissions that had allegedly been wrongly deducted, the clients were considered to have received only a lower net asset value.

The court ruled that UFC-Que Choisir’s action was inadmissible (Paris Civil Court, 3 April 2024, No 23-16079). It considered that the association did not represent a class of consumers placed in a similar or identical situation, since they were “clearly in different situations”, particularly regarding the date on which the funds were transferred by the consumers (in advance or at maturity). In its decision, the court therefore reiterates the need to bring together consumers who have experienced genuinely similar situations to bring a class action. This solution is, in our view, the right one, since the criterion of similarity of cases is a guarantee of the very spirit of class actions.

The ruling then points out that the conditions set out in Article L. 623-1-1° of the French Consumer Code have not been met. This article provides that class action is open to approved consumer defence associations in the event of a breach by a professional of their obligations “in connection with the sale of goods or the provision of services as well as in connection with the rental of a property”. However, according to the court, structured funds are based on passive management, so that the essential obligation incumbent on Natixis is an obligation to pay through the return of capital, which means that the provision of services is not characterised. Here again, it is fortunate to note that the court has sought to verify all the conditions laid down by the legislature.

The jurisdiction to order investigative measures in a health class action

In a ruling dated 2 May 2024, the French Supreme Court handed down an important decision on jurisdiction to order investigative measures in a class action, specifically in a representative health action brought against a pharmaceutical company and a pharmaceutical manufacturer.

In this case, the plaintiffs complained that the pre-trial judge had ordered an expert report, whereas Article L. 1143-3 of the French Public Health Code provides that the court hearing the class action must, in the same decision, declare the action admissible, rule on the defendant’s liability and, if necessary, order any investigative measure, including a medical report.

The question that arose was whether the jurisdiction conferred by this article on the judge ruling on the merits (juge du fond) was incompatible with the general jurisdiction conferred on the pre-trial judge (juge de la mise en état) by former Article 771 of the Civil Procedure Code (today, Article 789 of the Civil Procedure Code), under which the latter has jurisdiction to order all provisional measures.

The court began by pointing out that, in accordance with the work of the French Parliament, class actions in health matters are conducted in two phases. The first phase concerns the admissibility of the action, the incurrence of liability and the definition of the class. The second phase relates to the individual compensation of users by those liable, which is specific to healthcare actions, since the losses vary from one victim to another. The French Supreme Court draws one consequence from this procedural structure: the pre-trial judge appointed during a health class action has jurisdiction to hear the first phase of the action. On the other hand, all measures intended to quantify the damages suffered by the victims can only be ordered by the trial judge.

This solution is substantiated by the fact that once the defendant’s liability has been established, the parties are invited to reach an amicable agreement on compensation. It is only in the absence of such an agreement that the court will have to settle the issue and possibly order the measures it considers necessary. It would therefore be contrary to the purpose of encouraging agreements between the parties for an expert to be appointed at the pre-trial stage to quantify individual losses (French Supreme Court, 2 May 2024, No 22-10.480).

Towards a new era of class actions in Europe

Despite the small number of class actions that have been initiated, 2024, and certainly 2025, could prove to be a turning point in terms of class actions at European Union level. One of the issues at stake in the Bill currently being debated in France is the transposition of Directive 2020/1828 on representative actions, for which France – and many other member states – is behind schedule.

For instance, member states were required to transpose all provisions of the Directive into national law by 25 December 2022 at the latest. By March 2023, only three EU member states had transposed the Directive: Hungary, Lithuania and the Netherlands. France, along with 24 other member states, has therefore received a formal notice for failure to transpose. Although French law complies with most of the Directive provisions, it has still not implemented some of the innovative Directive’s measures, such as a cross-border class action.

Thus, on 25 January 2024, the European Commission noted that France had still not communicated the national measures completing the transposition of the Directive. As a reminder, the European Commission can initiate infringement proceedings against member states for failure to transpose a Directive, thereby requiring it to comply with its obligations. At present, it remains to be determined whether the Bill that is currently being debated will be a minimal transposition or whether it will radically reform the French class action regime.

Meanwhile, on 27 June 2024, the first action based on the European Directive was brought against the health technology giant Philips by an Italian consumer rights organisation and the Global Justice Network. The class action relates to Philips’ sleep therapy devices and mechanical ventilators commercialised by the company for over a decade. These devices help patients with sleep apnoea or major respiratory issues breathe through the night. However, in June 2021, Philips used a field safety notice for some respirators after discovering potential health risks related to polyester-based polyurethane (PE-PUR), the main constituent of the sound abatement foam. When deteriorating, this foam degrades into a sticky powder composed of a toxic substance that can be inhaled by patients and might lead to severe illnesses.

The class action that has been initiated before Milanese courts, where Philips’ head office for product quality is located, aims to compensate users for emotional distress and physical damages. Hence, the class seeks compensation of at least EUR70,000 for more than 1.2 million users of the Dutch brand’s breathing apparatus across Europe, totalling EUR84 billion. It is worth noting that Philips settled a similar class action litigation in the United States for people who claimed being injured by the respirators for USD1.1 billion, without admitting fault or liability for the injuries.

In the worst-case scenario, the outcome of the class action reform could make the European Union an attractive territory for class actions, alongside the United States. There is no doubt that this action will be the subject of discussions within the French Parliament, as a representative action has also been brought in France on behalf of more than 1,600 users. Will this rekindle the fears of those opposed to extending the scope of this action and of economic operators? The next few months will tell.