COMPETITION • FRENCH LAW • CIVIL SANCTIONS
The Hamon law of 17 March 2014 on consumer protection introduced the class action (action de groupe) into French law. It is thereby possible, under Article L. 623-1 of the Consumer Code, to obtain compensation in the civil courts for individual losses suffered by consumers placed in a similar or identical situation “when these losses result from anticompetitive practices within the meaning of Title II of Book IV of the Commercial Code or Articles 101 and 102 of the Treaty on the Functioning of the European Union”.
The handling of class actions is entrusted by law to nationally representative consumer protection associations approved under Article L. 811-1 of the Consumer Code. Therefore, such actions cannot be brought by an individual or a lawyer.
If the court considers the action to be well-founded and the professional’s liability engaged, it determines the losses capable of being compensated for each consumer or each of the categories of consumers making up the group it has defined, and orders, in an initial judgment, the appropriate measures to inform the consumers potentially harmed by the behavior complained of of its decision. The latter must then express their intention to join the group (“opt-in”) within a time-limit set by the judge, ranging from two to six months.
The legislature favors the “follow-on” option: if liability is ascertained in the decision of a national competition authority or the Commission relating to an infringement of competition law, the infringement is deemed to be irrefutably established for the purposes of recognizing the professional’s (trader’s) liability in the context of the class action (Commercial Code, Art. L. 623-24). However, this does not preclude the possibility of initially bringing an action before a judge, rather than the Competition Authority, to obtain a decision establishing an infringement of the competition rules, on which the class action may subsequently rely (“stand alone action”).
Article L. 623-25 of the Consumer Code provides that class actions are subject to a time-limit of five years from the date on which the decision finding that the professional has failed to comply with competition law has become final, thus enabling the period to be interrupted during proceedings before a national competition authority or the Commission.