The extension of the scope of class actions in French law

- Newsletter

In order to meet the European Commission’s vision expressed in its recommendation of June 11, 2013, the French legislator introduced a class action in consumer matters with the French law 2014-344 of March 17, 2014, also called “Hamon bill”.

In 2016, the class action reached a new level. First, the law 2016-41 of January 26, 2016, also called “Santé bill” introduced a class action in health matters. More recently, Title V of the law 2016-1547 of November 18, 2016, also called “Law for the Modernization of Justice in the 21st Century in transaction matters” also contributed to this evolution. The first chapter of the latter is about class actions before civil courts, whereas the second one is dedicated to class actions before administrative courts.

In both cases, the legislator set common rules to class actions in the following matters: discrimination, health, protection of personal data and environment. There are some specific rules for each one of those matters. Nevertheless, these class actions have a substantial common core, whether they are brought before the civil or the administrative court.

This article will in particular deal with the new chapter 10 of the French Code of Administrative Justice (CJA), which relates to class actions brought before administrative courts.

In the above-mentioned matters (discrimination, environment, health and protection of personal data) it is henceforth possible to bring claims of an indeterminate group of persons (natural or legal persons, private or public entities) who consider themselves aggrieved by a failure of the Administration (legal entity under public law or entity under private law with a public service mission) before administrative courts.

The main characteristics and modalities for exercising this action are explained below.

Any accredited association and/or duly registered association for at least 5 years and whose object is the defense of violated interests, can bring a class action before administrative courts.

This class action serves two purposes:

  • end a failure of the Administration (1)
  • and/or trigger liability of the damaging party and ensure compensation for damages caused (2).

Before introducing any legal action, the association should send a formal notice to the public entity requiring to take appropriate actions in order to end the failure and/or ensure compensation for damages. To be admissible, a legal action can only be introduced after a 4 months period from the reception of the formal notice.

This requirement of prior formal notice satisfies the “rule of prior decision” -which tends to extend, as illustrated in particular in article R. 421-1 CJA (entered in force on January 1, 2017). According to this rule, before introducing any compensatory remedy before administrative courts, the applicant should submit a demand to the Administration in order to lead to a tacit or an express decision and “bind” the litigation.

The rule of prior decision also meets the legislator’s will to promote the amicable settlement of disputes.

     (1) The legal action for violation:

The class action for cessation of failure of the Administration is one of the most innovative aspects of the new provisions introduced by the French law of November 18, 2016. Indeed, the class action under previous legislation did not allow it.

Depending on the matter, this possibility to introduce a class action for cessation of failure can either be the only one admitted or be excluded:

  • in matters of data protection, class actions aim exclusively at obtaining the cessation of the violation (article 43 ter of the law 78-17 of January 6, 1978),
  • in health matters, only a claim for liability is allowed (article L. 1143-1 of the French public health Code),
  • in matters of environment and discrimination, both possibilities (action for cessation of failure and action for liability) are open.

In case of class actions for cessation of violation, the administrative judge can order the Administration to cease the failure, if necessary under daily fine.

     (2) The legal action for compensation:

The class action for compensation is divided into several phases.

Once the action has been duly introduced, the judge first rules on the liability of the Administration. The judgment sets:

  • the group of persons towards whom the Administration can be liable and the connecting criteria applicable to the group,
  • the damages that may be remedied – this doesn’t exclude an individual action of the victims in order to obtain compensation for other damages,
  • the period in which the persons meeting the connecting criteria may join the group.

Following the class action in consumer matters, the French legislator chose an express and a posteriori adherence of the victims to the group (“opt-in”).

In the second phase, the judge sets the amount of damages granted to the victims.

Two distinct possibilities have been established by the legislator:

  • A collective procedure setting the amount of damages: the applicant (association) that has been authorized by the judge negotiates with the Administration the compensation of damages granted to people in the group. If the parties reach an agreement, the judge certifies the latter. Specific provisions applicable to certain matters exclude this possibility. This is the case in health matters (L. 1143-11 of the French public health code) and in matters of discrimination committed by the employer (article L. 77-11-6 CJA) which can only be subject to an individual procedure described below.
  • An individual procedure setting the amount of damages: the persons wishing to join the group submit a claim for compensation, either directly to the liable Administration, or to the applicant (association) that has been given a specific mandate.

In both cases, if the parties do not reach an agreement on the amount of damages, the judge ruling on the liability of the Administration is seized to set the amount of damages due to the persons who joined the group.

With the introduction of these new provisions, French law provides a new legal action which will allow litigants to feel less lonely in their litigation against Administration and rationalizing serial litigation.