OBSERVATORY OF GROUP ACTIONS
AND OTHER COLLECTIVE ACTIONS
A multidisciplinary perspective
Institute for Private Law, Ethics, and Patrimony (IDEP)
More recently, Internet platforms offering consolidation of actions or extrajudicial mass dispute resolution have emerged, as well as a website gathering signatures to force France to fight against pollution. This new phenomenon deserves special attention.
As collective actions represent a new societal challenge, our Observatory brings together professionals from a wide range of fields including Law, Economics, Management Sciences, Psychology as well as Sociology, Mathematics and Computer Science to provide the expert eye of all the disciplines involved. Artificial Intelligence also plays its part in our researches.
Our aim is to not only provide a multidisciplinary perspective on group actions and other collective actions but also to confront the French and International perspectives.
Maria José AZAR-BAUD
Founder and Director of the Observatory of Group Actions and other Collective Actions
THE ORIGIN OF THE OBSERVATORY OF GROUP ACTIONS
One event and one label are behind the creation of the Observatory of Group Actions and other Collective Actions.
The Observatory of Group Actions and other Collective Actions was created on 27 January 2017, following the Fourth “Académie Internationale de l’IDEP” held under the theme “From inaction to group action: new challenges”.
This event, organized under the scientific leadership of both Ms. Maria José AZAR-BAUD, associate professor at Université Paris-Sud and Ms. Véronique MAGNIER, professor at Université Paris-Sud, was held at the Maison du Barreau de Paris. The presentations given by both French and foreign experts in the field were structured around four panels. Debates then ensued with the participation of researchers, lawyers, other legal experts and actors from both the business world and the non-profit sector.
The Observatory of Group Actions and other Collective Actions was established with the support of the “Maison des sciences de l’Homme Paris-Saclay” thanks to the “Emergences-2017” label.
The Observatory comprises over a dozen researchers from various fields and laboratories. Associate researchers are also part of our teams. Students are involved in workshops organized by Paris-Saclay’s legal clinic as well as training projects from the IUT of Sceaux, all under the supervision of Maria José AZAR-BAUD. The Observatory thus plays an active role in training and improving professional skills among the student body, from their first year within the faculty up to their last year of Masters.
Our approach is based on multidisciplinary research – theoretical and practical – and innovating teaching (see section “Our Method”).
The Observatory’s aims rely on research and teaching and have an important societal root. It aims at bringing about a better understanding of group actions and other collective actions alongside with associations, victims and businesses.
THE AIMS OF THE OBSERVATORY OF GROUP ACTIONS AND OTHER COLLECTIVE ACTIONS
The Observatory aims at developing interdisciplinary and applied research.
For this purpose, the Observatory:
1. Identifies all group actions and other collective actions which were either brought or merely announced as well as court decisions and settlement agreements.
In France, the first collective actions (lato sensu) were brought in the 1970s but it wasn’t until 2014 that group actions appeared in the French legal scene. As of today, over 400 decisions have been identified, combining all courts, in the field of consumer protection.
Some of those decisions are published (and therefore accessible on Légifrance and/or in legal journals), however, others are not.
The debate this field gives rise to is captivating (see, for example, the report on the Open Data of court decisions, known as the Cadiet Report, submitted to the French Garde des Sceaux in November 2017).
It must be noted that there is no Register listing all the actions brought or decisions handed in the field of group and collective actions. It is unfortunate as such publicity would be extremely useful. On the one hand, it would prevent the juxtaposition of actions, which itself would lead to increased effectiveness. On the other hand, the collective nature of the dispute requires full transparency, from its commencement to its conclusion.
This is why the Observatory of Group Actions and other Collective Actions’ primary vocation is to identify and then publish all relevant information on its website.
2. Popularizes information in order to increase awareness amongst individuals, businesses and institutions regarding the existence of such actions and their nature.
Mass litigation can affect a defined, more or less wide, group of people (such as in the cases pertaining to Helvent Immo products, Cler or even Jet 3, in which a list of customers enabled a clear and definitive definition the group affected), an indeterminate collective (as in the horse meat case) or determinable one (as in the cases pertaining to the pharmaceutical laboratories Servier for the Médiator, Sanofi with Dépakine, or Bayer with the Essure).
Either way, society sees the emergence of social conflicts that lead to psycho-sociological effects (the perception of the victims and of society) which live on for many generations. So that Group actions and other collective actions can be seen as a tool to deal with them.
The multidisciplinary studies conducted by researchers at the Observatory thus ought to be popularized.
3. Uses a multidisciplinary approach
Group actions and collective actions, because they reveal the existence of a mass conflict, cannot be the subject of compartmentalised research studies. Only multidisciplinary studies can capture the litigation in its entirety and this involves putting different skills to the benefit of analysing the data collected.
This is why our Observatory brings together professionals from a wide range of fields including Law, Economics, Management Sciences, Psychology, Sociology, Mathematics as well Computer Science and Artificial Intelligence.
See section “Our Method”.
4. Broadens inter-institutional and international cooperation
Created as a research platform within the IDEP, the Observatory is open to any researcher, activist and practitioner wishing to be a part of this project and who is capable and willing to bring an original vision of the subject.
Inter-institutional cooperation is thus at the heart of the Observatory’s operation. Partnerships with other Research Centres and Laboratories in the aforementioned fields are therefore developed (for example, the CNRS funded a study in 2018). The same goes for any entrepreneur wishing to improve his position in order to avoid group actions, and associations wishing to be assisted in their strategic thinking.
Internationally, cooperation develops through partnerships with other researchers and other centres dedicated to collective actions in general, and more particularly to class actions and group actions.
Associate Professor at Université Paris-Sud
Founder of the Observatory
Director of the Institute for Private Law, Ethics, and Patrimony (IDEP)
Director of Sceaux’s IUT
Head of IDEP’s “contractual law” division
Associate Professor at Université Paris-Sud
Vice-President Digital Policy at Université Paris-Sud
Associate professor at Université Paris-Sud
Professor at Université de Reims
Head of IDEP’s “Arbitration and litigation” division
Students of the Faculté JEAN MONNET
Master 2 Team
Responsible for / In charge of the website’s protection, data protection and GDPR compliance (2017/2018)
Responsible for / In charge of the website’s protection, data protection and GDPR compliance (2017/2018)
Responsible for / In charge of the legal watch/jurisprudential monitoring
Responsible for / In charge of English translation
Logo design creation (2017/2018)
Master 1 Team
Students from the IUT of Sceaux
Students from the “2A Team”, Diploma in Marketing Techniques of Sceaux, responsible for the website’s creation
The stated objective is compensation for all individual damage suffered by consumers placed in a similar or identical situation, all resulting from a professional’s failure to comply with its statutory or contractual obligations. Compensation is limited to financial losses, resulting from material damage, which flowed from the sale of goods or services or from anticompetitive practices. In addition, the Public Health Code created a new group action aimed at repairing any harm to individuals’ health and safety and the Justice 21 Act (for the modernization of justice) further expanded it to fields such as discrimination, environment and GDPR compliance.
Group actions may be brought by approved consumer associations that are representative at national level, with the exception of local associations in overseas territorial communities. Acting directly on behalf of consumers is thus excluded, the stated objective being to avoid the instrumentalisation to which American class actions seem to be subjected. Other associations with standing (locus standi) may apply to court, requesting they be substituted for the initial plaintiff in case of failure on the latter’s part.
The court rules on both the admissibility of the action and the professional’s liability in the same decision, having considered all the individual cases presented before it. The court must also define the group – or the criteria for joining the group –, the damage which can be compensated, the amount of damages awarded or the factors to be taken into account when assessing the extent of compensation as well as the modalities thereof.
With regards to competition law related group actions brought following a final infringement decision handed by competition authorities or jurisdictions at national or European level (so-called follow-on actions), the professional’s failures are deemed irrefutably established.
In every “group trial”, opt-in being the cornerstone, the court orders advertising measures designed to inform all consumers likely to belong to the group of the decision; such measures are at the expense of the professional and their implementation only takes place once the decision is final.
Where the number and identity of all affected consumers is known, a simplified procedure will apply. The professional is sentenced to pay damages to all consumers individually, in a manner specified by the judge. Information is provided for on an individual basis so that everyone “accepts” its compensation directly with the professional involved.
Where the information on the affected consumers is not available, accession to the group follows the conditions set by the judge regarding the deadline and the recipient (professional involved, the association or the professional who assists the association). Joining to the group equates to a mandate given to the association for the purpose of compensation, thus enabling the latter to accomplish all procedural acts and take all appropriate steps for damages to be awarded, in the name and on behalf of each individual consumer.
Compensation is awarded in the manner prescribed by the judge and any claim – by consumers represented by the association but not compensated or by the professional – may be made when the case is sent back to the pre-trial judge for the further proceedings.
Rules pertaining to the suspension of individual actions and to res judicata – which applies to all members of the group who were compensated on completion of the procedure – are provided for in the statutes in place.
To this day, less than ten group actions were brought in France since their introduction in 2014. The limited number of actions can be explained by some of the current mechanism’s defects which jeopardise its success. The opt-in feature could be said to lead associations to select cases depending on the estimated number of consumers likely to join the group. Indeed, a judgment in favour of the applicant, if not followed by a high number of consumers joining, robs the latter of any effectiveness: a court will have sentenced a professional who won’t have to pay damages, or pay only very little. The judgment will thus lack any compensatory and deterrent purpose. It is very unfortunate as the legislator himself could easily have overcome this difficulty by giving the court the possibility to produce a generalised assessment of the damage suffered by the group – sometimes easier to establish than each individual damage – and to allocate the compensation to a cause which is close to that of the initial application (cy-près doctrine). As such, associations would certainly be less hesitant when selecting their cases, businesses would never retain profit recognised as illicit by the court and a sense of justice will stem for the group trial.
Finally, the association may participate to a “group mediation”. If a settlement is reached, it will then have to be approved by the court who must verify that the said settlement complies with the group’s interests and determine the advertising terms as well as criteria for joining the group as consumers will have to join in order to be compensated.
In some group litigations, favouring alternative dispute resolution mechanisms could prove useful for all parties involved: consumers and their association, the justice system and businesses would all benefit from increased effectiveness.
CURRENT GROUP ACTIONS / ONGOING GROUP ACTIONS
1 - UFC - QUE CHOISIR / FONCIA
2 - CONFEDERATION NATIONALE DU LOGEMENT (CNL, www.lacnl.com) / IMMOBILIER 3F
3 - SYNDICAT DU LOGEMENT ET DE LA CONSOMMATION/CONFEDERATION SYNDICALE DES FAMILLES (SLC-CSF, www.la-csf.org) / PARIS HABITAT-OPH
1 - CLCV (www.clcv.org) / AXA-AGIPI
2 - UFC-QUE CHOISIR (www.quechoisir.org) / BNP PARIBAS
3 - CONSOMMATION, LOGEMENT ET CADRE DE VIE (CLCV) / BNP PARIBAS PERSONAL FINANCE (BNP PPF)
DEFECTIVE GOODS AND SERVICES
1 - FAMILLES RURALES (www.famillesrurales.org) / SFR
2 - FAMILLES RURALES (www.famillesrurales.org) / MANOIR DE KER AN POUL
· The approved association challenges the practice consisting of the obligation to renew mobile homes to tenants of a land parcel on a campsite.
· The action was introduced before the TGI of Vannes in August 2015.
3 - CLCV / BMW MOTORRAD FRANCE
4 - UFC-QUE CHOISIR / FREE MOBILE
1 - APESAC-SANOFI (Dépakine)
2 - OTHER (UN)LIKELY ACTIONS – HEALTH
3 - CGT-SAFRAN (announced)
4 - MEGAFICHIER TES "HALLOWEEN"
 Recomm. 2013/396/UE of 11 June 2013.
 Consumer Code, art. L. 623-1 and f.
 Commercial Law Code, articles L. 420-1 to L. 420-7.
 Public Health Code, art. L. 1143-1 and f.
 Their role is limited to assisting association if they ask for such assistance and if the judge authorises it, in the same way as the bailiff (Consumer Code, art. R 623-5).
 Opt-in is the English expression referring to the need for every potential member of the group to express its wish to be included in the group, as opposed to the opt-out which refers to the situation where the member must express its wish not to be included in the group. From a comparative law perspective, some statutes follow the former rule (one must expressly joint the group in order to be a part of it) whereas other follow the later (are members of the group all members who did not express their wish to be excluded from it).
 M. J. Azar-Baud et S. Carval, L’action de groupe et la réparation des dommages de consommation : bilan d’étape et préconisations, D. 2015, p. 2136 and f..
 Phrase referring to the legal doctrine that appeared in English equitable courts but also used in the context of class action, in order to justify the allocation of damages to a purpose which is “very clause” (in French très près) to the purpose of the conflict.
 As reflected by the Statute for the modernisation of XXIst century Justice, which does not apply to consumer law disputes, when it requires – for the action will otherwise be inadmissible – that the action be preceded by a formal notice to the professional asking him to put an end to the infringement or to compensate the loss suffered. It does not stop there. In addition, individuals who have standing, the standing conditions being stricter than those provided for by the Consumer Code, can only introduce a group action after a 4 to 6 month period following the formal letter. As regards group action before the administrative judge, the latter can, of its own motion, suggest a mediation measure (Administrative Justice Code, art. L. 77-10-16).