Hogan Lovells Publications | 25 July 2016
One more step towards a general framework for class actions in France
The bill on the modernisation of 21st century Justice returned to the French National Assembly following the failure of the Joint Committee session in June this year, as French deputies and senators did not manage to agree on a compromise text.
This bill includes a Title V, entirely dedicated to class actions. The first chapters lay down a general framework applicable to various class actions initiated before both judicial courts and administrative courts (except consumer class actions which remain excluded from this framework). This framework is completed by specific rules applicable to four types of class actions: in matters related to health, personal data, environment and discrimination (the latter will not be addressed in details below). However, the list of class actions concerned by the bill is not limitative. In the future, the legislator may thus create other class actions, which will be subject to this general framework.
On 12 July 2016, the French National Assembly adopted a new version of this bill, which still remains to be discussed by the French Senate. Regarding provisions relating to class actions, the bill voted by the French National Assembly changed very little compared to the version deputies previously approved on 24 May 2016 as the amendments adopted are merely editorial or harmonisation amendments.
Amendments to keep in mind
The noticeable amendments voted by the French National Assembly mainly concern specific class actions, except health-related class actions for which no substantial amendment was adopted.
Regarding data privacy class actions, the sole substantial amendment relates to associations entitled to take action. The bill now specifies that only the associations which statutory purpose is to protect privacy and personal data and which have been duly registered for at least 5 years can initiate a class action. This new requirement to take into account the period during which the association has been registered brings data privacy class actions into line with general rules. Nationally representative and authorised consumers' associations also remain entitled to initiate data privacy class actions.
Environmental class actions were also substantially amended. The previous version of the bill provided that the sustained loss had to be the result of a "damage caused to the environment". In the version adopted by the French National Assembly on 12 July 2016, it is now referred to "losses resulting from a damage in the areas mentioned in Article L. 142-2 of the French Environment Code", that is to say nature, environment, improvement in living environment, water protection, urbanism, contamination, nuclear safety, radiation protection… The scope is thus significantly broader. Furthermore, associations entitled to initiate an environmental class action must now be authorised under certain conditions that shall be defined by decree of the French Council of State, whereas, according to the previous version of the bill, they merely had to be registered for more than 5 years. In addition to environment protection and defence of the victims of bodily injuries, the statutory purpose of the associations having standing may now also include defence of the financial interests of the association's members.
Lastly, the French National Assembly specified that, regarding only discrimination and environmental class actions, the new law will apply solely to the actions in which the alleged harmful event or the alleged breach occurred after the coming into force of the law. The French Government, which submitted this amendment, justified this difference of regime by explaining that these two class actions have a compensatory purpose, unlike data privacy class actions, the purpose of which can only be to end an alleged breach. In order to preserve legal certainty and enable companies to insure themselves accordingly, it was thus necessary that the law only applies to future breaches. However, it ought to be reminded that this is not the case of health-related class actions which came into force last 1 July 2016, regarding which no such limitation is provided for.
What's next?
The bill should be discussed by the French Senate after the summer, even if no specific date has been set yet. If the French Senate adopts the bill without any amendment, the law may be promulgated following this review. Otherwise, the bill will return for final reading by the French National Assembly, which shall make a final decision.
Do not hesitate to contact us if you wish to get further information on this bill.
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