Consumption, health, environment, data protection and discrimination are several fields dealing with actual class actions.
In the consumption field, in France, as in other countries, collective actions aim to obtain compensation for individual and patrimonial damages resulting from material damage suffered by several consumers placed in an identical or similar situation, and damage incurred as a result of a contractual or legal breach by one or more of the same professionals (article L623-1 of the Consumer Code).
This new type of action is reserved for consumers, as only claims regarding consumer litigations may be filed as class actions. Consumer litigation concerns consumers and the disputes they have with professionals.
What matters here is the definition of a ‘consumer’. In this respect, the Hamon Law added a new preliminary article to the French Consumer Code that defines the consumer as ‘any natural person who is acting for purposes which are outside his trade, business, craft or profession’.
This definition corresponds to the transposition of Directive 2011/83 of the European Parliament and of the Council of 25 October 2011 (article 2 definitions).
According to article L623-1 of the French Consumer Code, this proceeding is limited to the damages resulting from: the sale of goods or services supplied; or anticompetitive practice in the meaning of Title II, Book IV of the French Commercial Code, or of articles 101 and 102 of the Treaty on the Functioning of the European Union.
The innovative aspect of article 184 of Law No. 2016-41 of 26 January 2016, which introduces class action in the Public Health Code, is that the application field is very broad. Article L1143-1 of the public Health Code provides that a health user-approved association may bring an action in order to obtain compensation for the individual damage suffered by health users being in an identical or similar situation caused by a breach of its legal obligations or a failure to fulfil its legal obligations by a producer, supplier or a service provider producing, supplying or providing services relative to the products mentioned under point II of article L5311-1 of the Public Health Code. Nevertheless, article L5311-1 of the Public Health Code provides a very large field of application. Indeed it includes ‘human sanitary products and cosmetic products’, which means that medicine, and essential oils, cosmetics and tattoo products are included in the application field of potential class actions.
In the environmental field, articles L142-2 and L142-3-1 of the Environmental Code also provide a very large field of application. The class action aims either to obtain an injunction to stop a nuisance or to obtain compensation for injury to persons or material losses suffered by several persons placed in an identical or similar situation, caused by the breach of legal obligations or a failure to fulfil its legal obligations relative to the protection of nature and of the environment, to the improvement of living conditions, to water protection, air protection, soil protection, sites or landscape protection, to the protection of urban planning, of sea fishing, or any damage relative to the fight against pollution and nuisance, nuclear safety, or radiation protection etc. The class action may be filed by any agreed environmental protection association according to article L141-1 of the Environmental Code existing for at least three years.
In the discrimination field, the class action aims either to obtain an injunction to stop a nuisance or to obtain compensation for damages suffered by several persons placed in an identical or similar situation, and caused by a discrimination linked to their origin, sex, family circumstances, pregnancy, physical appearance, economic situation, name, place of residence, state of health, loss of autonomy, handicap, genetic characteristics, customs, sexual orientations, gender, age, political opinions, union activities, ability to speak another language, real or presumed membership or non-membership of a particular ethnic group, people, race or religion. The class action may be filed by any union (for discrimination at work) or any association specialised in the fight against discrimination existing for at least five years.
In the data protection field, the class action was recently extended according to article 43-ter of Law No. 78-17 of 6 January 1978, known as the Loi Informatique et Liberté. It used to aim only to obtain an injunction to stop a nuisance regarding the treatment of personal data, suffered by several persons placed in an identical or similar situation, and caused by the breach of legal obligations contained in the Loi Informatique et Liberté or a failure to fulfil its legal obligations relative to data protection. Lastly, Law No. 2018-493 dated 20 June 2018, concerning data protection, modified article 43-ter of Law No. 78-17 of 6 January 1978, and adapted it to the EU regulation 2016/679 of 27 April 2016 by extending class actions to the compensation of material and moral damages caused by a controller or a processor. The class action may be filed by any union or any agreed users’ or consumers’ association or data protection association existing for at least five years.
In the field of crime, some collective actions may be filed before the criminal court by a registered association. This type of action before the criminal court already existed before the Hamon Law entered into force, but remains very rare and limited. Only a group of victims can form actions and only for certain crimes listed in articles 2-1 to 2-21 of the French Code of Criminal Proceedings. According to these articles, a registered association may launch a collective civil action within a criminal proceeding. The collective action must be launched by a duly registered non-profit association (according to the French Law of 1901) whose articles of association aim at combating certain types of crime and helping certain kinds of victims. As mentioned, this type of collective action is strictly limited to the crimes listed in the French Procedural Code, whereas over the years lawmakers have progressively extended the list of crimes for which a collective action is possible.
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