French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

After thirty years of debate and many unsuccessful attempts, the Law of 17 March 2014, known as the Hamon Law , finally introduced class actions into French law, even though its scope of application and its possibilities of implementation have proved extremely limited in relation to what was initially planned . Articles L. 423-1 et seq, introduced by the Hamon Law, have now  become Articles L. 623 …

Class action

After thirty years of debate and many unsuccessful attempts, the Law of 17 March 2014, known as the Hamon Law , finally introduced class actions into French law, even though its scope of application and its possibilities of implementation have proved extremely limited in relation to what was initially planned . Articles L. 423-1 et seq, introduced by the Hamon Law, have now  become Articles L. 623-1 to L. 623-32 following re-codification by Ordinance 2016-301 of 14 March 2016.

Article L. 623-1 (previously paragraphs 1 to 3 of Article L. 423-1) of the Consumer Code provides that class actions can be used when seeking compensation for the individual harm suffered by consumers “placed in a similar or identical situation”  and having for common cause a “breach by the same trader/s to their statutory or contractual obligations”  on the occasion of the sale of goods or the provision of services or where the harm is the result of anticompetitive practices. It can only cover compensation for material damage suffered by consumers (Article L. 623-2). Almost no sector is exempt from “consumer” class actions. Social housing  and tenancy agreements , which are  subject to special regulations and are not regarded either as a provision of services or a sale of goods are the exception to the rule. On the other hand, the environment  and health , areas which were excluded from the scope of “consumer” class actions, can now be the subject of class actions under ordinary law pursuant to the Law on the Modernization of Justice .

The conduct of such actions is entrusted to associations for the defense of consumers which are representative at the national level in application of Article L. 811-1 (formerly L. 411-1) of the Consumer Code . They cannot therefore be introduced by individuals or lawyers. Class actions are brought before the tribunal judiciaire. The Decree of 24 September 2014 , which provides that class action are subject to the provisions of the Code of Civil Procedure, Article R. 623-1, specifies that the application must be made, investigated and judged according to the rules applicable to ordinary procedure in contentious matters before the tribunal judiciaire and on appeal, according to the short-notice procedure under Article 905 CPC (Article R. 623-4 (formerly R. 423-4)). As stipulated in Article R. 623-2 (formerly R. 423-2), the “civil court” referred to in Article L. 623-1 of the Consumer Code is the court in the place of the domicile of the defendant and, where the defendant is not domiciled in France or the domicile is unknown, the tribunal judiciaire in Paris.  Where there are a number of defendants, the rule in article 42, paragraph 2, CPC should apply, according to which “the applicant seizes the court of his/her choice of the place where one of them is domiciled”.

If the court deems the claim to be founded  and the trader liable, it assesses the damage to each consumer or each of the categories of consumers constituting the class it has defined , and makes an initial ruling ordering the measures to be taken to inform potential victims of its decision . The pre-trial judge is not competent however to assess the representativeness of the individual cases listed in the claim brought by a consumer association or whether different terms and conditions of sales applied to those cases . Measures ordered for publication of the decision may not however be implemented until the decision as to liability is no longer open to appeal or to a petition to the Court of Cassation . Article R. 623-16 (former Article R. 423-13) details the content of the publication measures: they should, inter alia, reproduce the operative part of the decision and warn consumers that if they do not comply with criteria for inclusion within the group or do not meet deadlines to apply for inclusion, they will no longer be eligible for compensation in the class action . From the date of the publication, consumers have a period of between two and six months to make known their intention of joining the group (opt-in) . The opt-in formalities are more flexible than those pertaining to publication. To join the group consumers must provide their name, forename, address and, where appropriate, an email address where information relating to the procedure can be sent, and the amount of damages claimed (Article R. 623-17, formerly R. 423-14). Article R. 623-20 (formerly R. 423-17, paragraphs 1 and 2) provides that the mandate given to the association empowers it to carry out on behalf of consumers all acts of procedure and formalities in order to recover their individual loss and requires the association to advance of all expenses and fees related to the procedure. The consumer can revoke the mandate at any time but in doing so surrenders its inclusion in the group (Article R. 623-21, formerly R. 423-17, para. 3). Consumers not compensated by the trader will also be deprived of inclusion in the group if they do not provide the proper documents in support of their application before the expiry of the time-limit fixed by the court hearing claims for outstanding damages (Article R. 623-22, formerly R. 423-17, para. 4). At the end of the procedure, consumers are compensated by the undertaking found to be liable, with the court ruling by separate judgment in the event of difficulties. By virtue of Article L. 623-32 (formerly L. 423-25), any contractual term having as it object or effect to prohibit a consumer from participating in a class action is void ab initio.

The decree also lays down the rules governing the simplified procedure which, under the terms of Articles L. 623-14 to L. 623-17 (formerly L. 423-10), applies when the identity and number of aggrieved consumers are known and their loss is of the same amount. Article R. 623-12 (formerly R. 423-9) specifies what measures must be taken by the trader to individually inform consumers of the decision and Article R. 623-13 (formerly R. 423-10), lays down the formalities for acceptance by the consumer of the compensation awarded. Like the consumers not represented by the association, those who do not accept the award offered may not participate in the class action.

In its current state, the class action is likely to raise significant difficulties of application. First, concurrent claims are possible: there is nothing to prevent a consumer from bringing, in parallel to the class action, an individual suit before a civil or criminal court, unless the same facts have already been the subject of a “liability ruling” in the context of a class action . In addition, and pending the publication of the forthcoming decree, there is no organization in the hierarchy of actions to be brought by the various authorized associations. Secondly, quantifying the loss suffered by each consumer is likely to give rise to complex technical argument. It will be some years before the courts are able to determine the applicable principles and methods.

It is quite likely that, at first, before the various players - approved associations, judges and businesses - have got to grips with this new procedure and the regime has gained more flexibility , undertakings will face the risk of seeing their image easily compromised should class actions be brought against them.

The class action is intended to evolve under the impetus of practice and European Law, which should help to correct the imperfections of the current system. The Commission published a Communication “Towards a European Horizontal Framework for Collective Redress” on 11 June 2013 recommending the adoption of common principles for class actions in the national laws of the Member States, followed by a proposal for a directive. On 26 March 2019, the European Parliament adopted its negotiating position on the proposal for a directive on representative actions (collective redress). Presented as a response to the concerns raised by recent “mass harm situations” with cross-border consequences, the proposed directive aims to offer consumers uniform rules enabling them to obtain compensation for their collective damages while avoiding the excesses of US-style class actions. The proposal, which is very broad in scope, covers sectors such as the use of personal data, financial services, travel and tourism, energy, telecommunications, the environment and health. Only entities such as consumer associations or certain independent bodies designated by the Member States, which must be not-for-profit and have no agreements with law firms will be able to bring such actions. To avoid the well-known pitfalls of the American system, undertakings will be safeguarded from abusive lawsuits by the “loser pays principle”. According to the agreement on a common position reached between the European Parliament and the Council on 22 June 2020, the directive will harmonize national laws for cross-border actions while leaving to the Member States to set systems, one unified cross-border regime and 27 national regimes.

Law No 2014-344 of 17 March 2014 on consumer protection, OJ of 18 March 2014, 5400 and its decree of application, Decree 2014-1081 of 24 September 2014 on class actions in matters of consumer protection, OJ of 26 September 2014, 15643. See also Circular of 26 September 2014 presenting the provisions of Law No 2014-344 of 17 March 2014 on consumer protection and Decree No 2014-1081 of 24 September 2014 on class actions in matters of consumer protection, BOMJ 2014-10 of 31 October 2014.

A parliamentary report presented on 10 June 2020 makes a disappointing assessment of class actions (AN, Information report on the assessment and prospects of group actions, No. 3085, 11 June 2020). Since their introduction into French law, only 21 group actions have been initiated in France, despite being extended to health, the environment, discrimination and personal data in 2016 and to property leasing in 2018. Of those actions, 14 were filed in the area of consumer affairs, 3 in health, 2 in discrimination, 2 in personal data and none in competition. Three proceedings ended with in a settlement, 6 were dismissed on grounds of inadmissibility or lack of grounds and the others are still ongoing and often bogged down in procedural issues.

Decree 2014-1081 of 24 September 2014, cited above, OJ of 26 September 2014, 15643.

Rejecting the action due to failure to show breach by trader TGI Paris, 27 January 2016, LawLex201600001335JBJ.

Consumer Code, Art. L. 623-5 (ex Art. L. 423-3).

Consumer Code, Art. L. 623-7 (ex Art. L. 423-4).

Cass. 1re civ., 27 June 2018, LawLex201800000982JBJ, upholding CA Versailles, 3 November 2016, LawLex201700000576JBJ

Beside the time limits for inclusion in the group (Art. L. 623-8, ex L. 423-5) and compensation of the damage (Art. L. 623-11, ex L. 423-7), the decree gives the court the power to fix the time period in which the professional concerned must implement the measures to publicize the judgment, and specifies that in the event of inaction, the association will be able to do so him, at the professional's costs (Art. R. 623-7, ex R. 423-6).

The sanction is recalled in Article R. 623-14 (ex Art. R. 423-11) for simplified actions and in Article R. 623-19 (ex R. 423-16) for ordinary actions.

Consumer Code, Art. L. 623-8 (ex Art. L. 423-5).

Consumer Code, Art. L. 623-30 (ex Art. L. 423-23).

The parliamentary report presented to the French National Assembly on 10 June 2020 envisages the relaunching of collective redress actions by providing a common legal framework for the various actions now dispersed over different texts. While the class action initiative is reserved for some fifteen approved associations, it is planned to give standing to associations whose corporate purpose includes the subject matter of the dispute and which have been in existence for at least two years, as well as to ad hoc associations made up of at least 50 individuals or at least 10 undertakings incorporated as legal entities and which have been in existence for at least two years. It would be possible for legal persons under private or public law to bring such an action through an association and they would be able to advertise such actions. In addition to the principle of full reparation, the proposal envisages compensation for the sums actually incurred and the assumption of costs by the Treasury in the event of failure, with a civil penalty for the professional, consisting of the confiscation of a fraction of his turnover for the benefit of the Treasury. The report also envisages the creation of a register of collective actions and the abolition of the obligation of prior formal notice for certain types of actions, the pronouncement of interim measures by the pre-trial judge, specialization of the courts and more frequent intervention by the Public Prosecutor's Office.

TJ Versailles, 4 June 2020, LawLex202000000502JBJ, holding that the members of the group of consumers defended by the consumer association do not have to be in a strictly identical situation with regard to the harm suffered, since the similarity of the harm is assessed in the light of the breach alleged against the trader and not in the light of the nature and extent of individual loss.

TJ Versailles, 4 June 2020, LawLex202000000502JBJ, holding that the warranty against of latent defects is one of the legal obligations of the professional, which may form the basis of a class action. In this case, however, the court held that the association did not demonstrate a breach of the manufacturer's obligations merely on the grounds of a recall action of the products in question by the manufacturer, since such an action does not constitute recognition of the existence of a latent defect, but rather the fulfillment by the seller of the safety obligation imposed by the Consumer Code; CA Versailles, 20 May 2021, LawLex202100003086JBJ, specifying that the fact that out of the twenty-three cases of consumers whose situation is brought forward by a consumer association, three did not subscribe to the disputed due date notice service while having been invoiced the disputed receipts, is not such as to call into question the existence of a group of consumers placed in an identical or similar situation since they are a very small minority and have received notices of payment and incurred charges for this service.

 CA Paris, 9 November 2017, LawLex201700001856JBJ, overruling on that point TGI Paris, 27 January 2016, LawLex201600001335JBJ.

 TGI Nanterre, 14 May 2018, LawLex201800000708JBJ.

 Public Health Code, Articles L. 1143-1 to L. 1143-13.

 Law No 2016-1547 of 18 November 2016, OJ of 19 November 2016.

Under penalty of being held null and void, the summons must, in addition to the particulars referred to in Articles 56 and 752 CPC, expressly set out the individual cases presented by the association in support of the action, anda include a copy of the certificate of approval of the association (Art. R. 623-3, formerly R. 423-3).

French Consumer Law

33. Class action

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

33. Class action

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise