Since the entry into force of the new Law on Consumer Protection 17
March 2014 – also known as “Hamon Law” –
France now has its own version of a class action,
different by many ways from its American counterpart.
To prevent any of what are considered as abuses on the Eastern
side of the Atlantic, the French legislator has framed this legal
action in several limits, which in turn seems to call in question
the effectiveness of the mechanism.
Pursuant to article L. 423-1 of French Consumer Code, officially
recognised national consumer protection associations are now
allowed to seek damages before civil courts, in order to obtain
compensation for the individual and material losses suffered by
consumers placed in a similar or identical situation. The harm must
have its common cause in a breach by one or several same
professionals of their legal or contractual obligations in the
context of a sale of goods or provision of services, or when the
harm derives from a breach of competition law.
Therefore, the French class action is restricted by four
Only individuals can be provided with some compensation through
this action since the Hamon Law, for the first time, also defined
the consumer as a natural person acting for non-work-related
purposes, excluding legal persons from its scope.
Officially recognised associations of national dimension
– only 15 to date – are granted an exclusive right to
initiate the proceedings, which puts an important limitation to the
role of legal counsels in this field, as opposed to the American
These associations can only seek to obtain damages to
compensate losses resulting from material or financial damage
suffered by the consumers. Such a limitation excludes moral harm or
physical injuries, which may be of particularly great importance in
many cases (sale of defective or spoiled goods, for instance).
Punitive damages are also excluded so far.
As its place in the French Consumer Code clearly indicates, the
scope of this mechanism is limited to consumer claims. The
legislator’s purpose here was to avoid class actions in
sensitive areas, such as public health and environmental damage.
However, the legislator has inserted an unusual provision according
to which the exclusion of health and environmental damages shall be
reconsidered within 30 months after passing the regulation. In
fact, discussions have already started with professional health
The procedure has been broken down in a three-step process:
A judgment must find that the conditions for admissibility are
fulfilled, rule on the professional’s liability in relation
to the individual cases presented by the association, define the
concerned group of consumers, and determine which criteria
consumers must meet in order to join the group of consumers to whom
the professional is liable.
The adhesion of consumers to the class action is based on an
“opt-in” system: it is subject to a positive expression
of the victim’s will. To make the proceeding operational, the
judgment must therefore order publicity measures intended for
consumers most likely to belong to the group. The decision also
states by which means consumers may join the group (by approaching
the professional directly or the association), and in which delay
(no less than two months and no more than six months after the
publicity measures are taken).
Regarding the effective compensation of the consumers, the
judgment must fix the timeframe within which the damages have to be
paid by the professional and, in the event of a dispute over
payment, the judge is required to give its decision in the same
When “the identity and the number of consumers having
suffered harm are known” and “when these consumers
have suffered the same loss, or loss of an identical value for a
given service or over a given period of time or duration," a
simplified procedure is provided, through which the judge may rule
on the liability and may order the professional to compensate
victims directly and individually, within a fixed delay.
Class actions related to anticompetitive practices suffer a last
limitation, since a “follow on” rule is
applied in those cases: professionals may only be held liable on
the basis of a definitive decision made by competent national or EU
authorities or jurisdictions.
Innovative, this class action surely is; its numerous safeguards
appear, however, as important obstacles to its success to-date.
An extension to health-related litigation is to be monitored
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The commencement of arbitration proceedings does not eliminate the possibility of a settlement between the parties in dispute.
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