Can Class Actions be introduced in the French procedural system?

Lawyers and politicians have been discussing the introduction of class actions in the French procedural system since the the mid 90’s. But the facts are here: no substantial progress has been made untilnow.

It is necessary to explain in a few words what a class action is.

Class actions consist in persons joining the actions of several plaintiffs in one single action. As an example, if hundreds of consumers suffer from the same prejudice committed by one company, it is more useful to join all their claims into one action in order to file them jointly. Let’s add that in the USA the “opt out system” prevails, which means that lawyers file one action for a specific prejudice for every people concerned. Those who don’t want to be part of it must individually drop out.

Has France already tried to integrate such a procedure in its penal and civil codes ? In 2005, Thierry Breton, former French minister of Economy, proposed to introduce class actions into french legal system. This proposal was not welcomed by our parliament and the text was abandoned before being voted upon. During the 2008 presidential campaign, Mr Nicolas Sarkozy stated that one of his objectives was to reform our civil procedure code with a view to introduction class actions. In September, Mrs Rachida Dati, our minister of Justice, talked about a new text allowing the introduction of the class action to be approuved by Parliament before year-end.

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In several countries, like in the USA, this procedure is one of the basis of their procedural system and encounters a great success. Consumers, associations or stockholders aim at increasingthe strength of their claims, by using such powerful actions against powerful corporations. But the system has its own nemesis: an abusive use. It is easy for consumers to launch action against companies that committed even a small fault in order to obtain the payment of substantial damages of it. However, American judges did not assess precisely the financial consequences of such actions and the good will of the claimants. The result was disastrous, and companies were endangered by the pressure created by the abusive use of class actions. To be useful, the acceptance of class actions has to be controlled and the prejudice has to be sufficiently material to be taken to consideration.

Why is France hostile to such a reform? In 2005 the reform was not accepted mainly because of the lobbying of powerful corporations. Indeed, the leading French companies fought against the introduction of this new procedure, as its impact on the economy and corporations would have been substantial. If thousands of consumers or angry stockholders introduce an joint action against a company, the sums at stake could be considerable.

Things might change in the near future, and for the sake of consumers, especially under difficult circumstances, the government may finally propose to include class actions into our civil and criminal codes.

However, contrary to the US system, an “opt in system” is excepted to prevail: people would have to stand in order to join the class action and would not automatically be part of it. France may there-fore add a « French Touch » to class actions.

Paul Romatet