Sylvie Gallage-Alwis comments on France’s new class actions regime in CDR News

Partner Sylvie Gallage-Alwis commented:

How would you describe the French class actions landscape before the new regime was introduced in May? What wasn’t working, and do you think the changes were required?

“The class action system which was introduced in France as from 2014 with the law of March 17, 2014 (known as the “Hamon law”) has been described as a minimum standard, i.e. a mechanism that is too strict to be attractive to claimants. As such, according to the register of the Observatory of Group Actions, to date, and therefore over the past 11 years, 38 group actions have been initiated. The majority of such claims are class actions relating to consumer law rights. Class actions in the field of health, data privacy and work discrimination have also been launched. No class action claims on environmental issues has ever been launched. In other words, the number of claims launched remained low and class actions were not launched in all fields where in could have been. In addition, to date, only one company has been found liable (the Sanofi laboratory by a judgment under appeal of January 5, 2022 relating to Depakine). This situation generated intense debates within the National Assembly. The National Assembly’s working group dedicated to class actions published a report in June 2020 in which it described this mechanism as “disappointing”, explaining why a reform was discussed.

“What were the main criticisms made against the former mechanism in particular by NGOs and plaintiffs? Its limitation to specific areas, the fact that in some of these areas, only a very small number of NGOs or organisations could initiate them, and the high costs and risks associated with such proceedings which were not always offset by the potential gains, making them dissuasive. The launch of only four class actions in the year of their creation (2014), even though this mechanism had been called for by some for decades, can also be interpreted as evidence that the French judicial culture is not the same as in other jurisdictions where this mechanism has been a “success.” That said, political pressure was extremely strong, and after several attempts, it led to the law of April 30, 2025.”

Are there any parts of the new regime that particularly stand out to you? Any key changes that you think will positively impact the class actions process in France?

“The law of April 30, 2025 (known as the “DDADUE law”), containing various provisions adapting the French class action regime to European Union law, marks a decisive turning point for class actions in France. This law harmonises existing regimes, creating a single, new framework for class actions. From now on, whether in consumer, environmental, anti-discrimination, or personal data protection matters, plaintiffs can join together under the same legal regime, with the notable exception of public health. The stated objective of this harmonisation is to remove the procedural obstacles identified over the past decade to make class actions more accessible and, therefore, for many, more effective.

“Understandably, this law introduces additional risks for companies, which must now navigate a more complex and potentially hostile legal landscape.

“The major contributions of this law can be summarised as follows:

• All areas may be the basis for class actions. There is no longer any compartmentalisation.
• All damages, regardless of their nature, may be compensated.
• Class actions may be financed by third parties, subject to certain conditions.
• Class actions may be brought by any approved association (except for class actions seeking cessation of a breach).
• Actions for cessation of a breach and/or compensation for damages are now open to all and are no longer exclusive to environmental law.
• There is no longer any requirement for prior formal notice.
• The action may be brought directly against the company’s insurer. – Certain jurisdictions will have jurisdiction to handle these actions.
• A national register of class actions will be created, as well as a regime for cross-border class actions.

“Fortunately, the DDADUE law does not revise the opt-in nature of class actions. Nor does it open the door to applicants other than those in the form of associations, even though creating an association is not a complicated process.”

Do you agree with the new civil penalty that the regime introduces? What impact do you think this will have?

“One of the new major measures of the DDADUE law is the creation of a civil fine against the defendant company.

“Article 16 of the DDADUE law thus first states that “the public prosecutor may bring, as the main party, a class action to cease the breach. It may also intervene, as a party, in any class action.” It adds that “a civil fine of up to EUR 50,000 may be imposed against the plaintiff or defendant in the proceedings when the latter has, in a dilatory or abusive manner, prevented the conclusion of an agreement based on the judgment ordering the collective liquidation of damages.” Worse still, a “civil penalty in the event of willful misconduct causing serial damages” is created, specifically against companies. The amount collected will be paid into a class action financing fund. Finally, this penalty will not be insurable.

“This dual sanctioning power reflects the French State’s interference in private relations between a company and an individual. The Council of State had expressed reservations about the possibility of creating a civil fine in its advisory opinion of February 9, 2023 on the draft Bill. The Council of State thus considered that the principles of necessity, proportionality, and legality, as well as the principle of non-accumulation of sanctions, should preclude such an additional sanction. According to the Council of State, this could also raise questions regarding unjustified differential treatment that undermines the principle of equality before the law. We can expect extensive case law if such sanctions were imposed and I believe that this should be sanctioned as trying to impose some kind of punitive damage on companies doing business in France.”

Lastly, does France have any concerns that its class actions will become like the US, where the class action floodgates will open?

“Class action, if poorly regulated, can become a dangerous instrument, transforming a tool meant at bringing justice and access to Courts into a threat to businesses. It is crucial to strike a balance between protecting the rights of individuals and preserving the economic stability of businesses. The DDADUE law, although it seeks to make class action a more attractive tool, must be implemented with caution to avoid the abuses observed in other jurisdictions such as the US. Justice must not be an instrument of repression, but a means of ensuring fairness and the protection of the rights of all, without compromising the economic viability of market players. However, it appears that class action is an “all or nothing” mechanism when analysing the last 10 years in France and comparing them to jurisdictions where class action is an integral part of the legal landscape and even of the culture and identity of the said jurisdiction. What’s reassuring is that the DDADUE law would not be changing the analysis that French Courts would have to do of whether or not the test cases put forward are similar. This is good news as it is one of the main points that have, to date, pushed French Courts to rule that some claims would be inadmissible, forcing NGOs to really dig into the facts and find situations where people are really in a similar position.”