Estimated reading time (in minutes)
Revolution ! Twenty-one years after the entry into force of the Consumer Code, Law no. Law n° 2014-344 relating to consumption, known as the “ Hamon law ”, in reference to the one who will have been the main one as Minister of the Social and Solidarity Economy, was promulgated on March 17. Composed of 161 articles and 75 pages long, the text has upset French consumer law, both by the extent of the changes it brings and by the diversity of these changes .
In particular, increased attention deserves to be paid to the introduction, in our law, of a class action presented as the equivalent of the American class action.
However, to think that the scope of the law of March 17, 2014 is limited to such an innovation would be manifestly wrong. Indeed, the legislator did not hesitate, on such an occasion, to considerably strengthen the contractual protection of the consumer and to address a multitude of other questions.
Revolution Thus, while the regime of unfair commercial practices has been considerably modified, the agents of the DGCCRF are granted an innovative power of sanction, consisting of the possibility of inflicting administrative fines and leading to the establishment of a “commercial and competitive adjustment” similar to the fiscal and social regularizations that already exist, to use the expression of certain commentators.
The legal profession, for its part – and this is indeed a historic development – will now benefit from the possibility of resorting to advertising and canvassing, while manufacturers of manufactured products associated with a place or a specific region will be able to benefit from protection similar to that already conferred on foodstuffs by protected designations of origin.
Finally, several contractual formulas that have appeared recently are now subject to specific regulations, starting with contracts for the sale of precious metals or contracts for the rental of vehicles with drivers, with the aim of allaying the controversies that their meteoric spread could arouse.
This publication therefore proposes to report, in a synthetic way, the main characteristics of the mechanism of collective reparation of individual damages which has just been introduced into our law.
For years, the paradox has persisted: while France has always been a pioneer, on a European scale, in terms of consumer protection, our law has shown a major shortcoming by not providing for any specific mode of compensation for the damage typically suffered. by such an actor. , of limited importance, of course, but presenting a mass character at the origin of non-negligible benefits for the professionals concerned.
In such circumstances, how can we imagine that the individual action mechanism brought by each consumer victim constitutes an adequate means of redress, when the gain likely to result from the redress ordered by the judge appears to be significantly lower than the cost – financial and temporal – inherent in the trial itself?
If the introduction, in 1992, of action for joint and several representation aimed to remedy such a deficiency, by allowing a consumer association to bring an action for liability on behalf of identified consumers, it must be noted that a such an initiative ended in bitter failure, insofar as, at the beginning of 2010, only five actions of this type had been brought. Subordinated to compliance with overly rigid conditions, the system lost all its effectiveness: if any victimized consumer had to grant the association an express mandate of representation, the latter could in no case, for its part, solicit the said mandate by way of advertising, billboards, leaflets or personalized letters.
The legislator therefore took up the issue, after numerous parliamentary and doctrinal initiatives that never came to fruition, with the aim of strengthening the right of everyone to have effective access to justice and to put in place more efficient economy.
– The essential characteristics of the action:
Firstly, the new article L423-1 of the consumer code provides:
“A representative consumer defense association at the national level and approved pursuant to article L. 411-1 may seize a civil court in order to obtain compensation for individual damages suffered by consumers placed in a similar or identical situation and whose common cause is a breach by one or more of the same professionals of their legal or contractual obligations: 1° A the occasion of the sale of
goods or the provision of services;
2° Or when this damage results from anti-competitive 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 class action can only relate to the repair of material damage resulting from material damage suffered by consumers. “.
Several conclusions should be drawn from this.
First of all, only an approved association of consumers, representative at national level, is empowered to bring an action of this type. It follows that, contrary to what is provided for by American law, lawyers will have to limit themselves to the role of advising an association, without being able to take on themselves, as they had nevertheless clearly demanded through the intermediary of their representatives, the initiative of referral to the judge.
Next, the scope of the action is limited to the sole areas of consumer law and competition law, reflecting the will of the legislator to exclude from the sphere mass lawsuits, at least in the short term, violations of environmental and health nature, in particular, probably requiring the creation of a specific action whose implementation conditions would be perfectly suited to them.
Finally, only financial damage, resulting from material damage, can in such a context be the subject of compensation, so that other types of more personalized damage, specific to each consumer, such as moral damage , bodily or for pleasure, are purely and simply excluded. .
Secondly, from a procedural point of view, the competent court will be the Tribunal de Grande Instance, whose judge will generally have to find, on the one hand, that the conditions of admissibility of the action are met and rule, on the other hand. , on the liability of the professional.
More specifically, pursuant to Articles L423-3 and L423-4 of the Consumer Code, it will be up to such an actor: to set the connecting criteria;
– on the other hand, to determine the damage likely to be repaired and its amount, or alternatively the elements likely to allow their pecuniary assessment;
– Third, order publicity measures, which are the responsibility of the professional, to inform consumers likely to belong to the group of the decision rendered, who must then come forward to obtain compensation;
– Fourth, set the time limit within which compensation must be made.
It should be added that the judge will also have the possibility of proposing a mediation measure, in accordance with article L423-15, by referring to the rules of the law of February 8, 1995 governing judicial mediation, at any stage whatsoever. or procedure. .
If such a device is therefore clearly distinguished from the action for joint representation, which remains in force, in that the consumer will not in such a case have to provide an express representation mandate to the applicant association, it is however necessary to avoid the temptation to describe such an evolution as characterizing the importation into French law of class action from the United States, as the differences between each of the mechanisms are capital.
– The differences that oppose it to the American class action:
Constituting a judicial procedure, the class action of American federal law is above all part of a system of law constituting the reflection of a legal culture very different from ours. It is therefore not at all surprising that the class action instituted by the law relating to consumption stands out from the mechanism which nevertheless inspired it in many respects, in that the characteristics of the model in force across the Atlantic are, by many of them, closely linked to concepts or principles to which the States of continental Europe are deeply resistant or reluctant.
Rightly dreaded, the class action system can indeed be the source of the payment of hundreds of millions of dollars in damages, and thus drive a company to bankruptcy, because: – Initially, the judge assesses the value of the
damage suffered by all the consumers, that is to say by any person likely to invoke the conviction of the defendant company, and sets the amount of the compensation on this basis;
– Secondly, the amount of the said compensation, charged to the company whose liability is established, may be higher than the amount likely to ensure compensation for all the damage caused, in that the compensation may expressly have a punitive function;
– Thirdly, the American lawyers, most often at the origin of the actions, contribute in a decisive way to the success of the mechanism, in that they have a clear economic interest in acting, since their fees frequently take the form of a percentage the total amount of damages obtained at the end of the trial;
– Fourthly, the local law of evidence allows the judge to compel any defendant to produce, under pain of heavy penalties, hundreds – even thousands – of documents and communications contained on a multitude of media.
However, it clearly appears that the French class action cannot have any of these characteristics, which together contribute to the high efficiency of the mechanism, except to abandon: – The strictly individualistic conception of the action, and the constitutional nature
of each individual’s freedom to sue or not resulting therefrom, going against the presumption on which American law is based, for any consumer concerned, as a party to the proceedings;
– The principle of full reparation, by virtue of which the amount of damages pronounced by the judge must be limited to allowing the reparation of all the damage suffered and cannot pursue a repressive or punitive objective;
– The ethical rule, to which all French lawyers are subject, by virtue of which the fees cannot in principle be expressed as a percentage of the amount of damages and interest obtained at the end of the trial, except if it is not that a fraction of the remuneration and that such a method of calculation was the subject of a prior agreement, qualified as a litis quota pact, approved by the President of the Bar;
– To our historical conception of the rights of the defence.
Does this mean that the group action which has just been integrated into our positive law is only an ersatz of the American model, which would be devoid of any interest? Nothing is less sure.
Because of the scale of the convictions to which it gave rise and the lure of profit it aroused among certain unscrupulous lawyers, the class action was not exempt from all criticism. Conversely, the newly created group action, appearing to comply with the fundamental principles of French law mentioned above, could well be protected from the grounds for drifting from the system in force across the Atlantic.
It therefore remains to be hoped that such an innovation will not only make it possible to ensure compensation for the mass damage that has harmed thousands of consumers, but also to regulate the commercial strategies put in place by the companies responsible, by dissuading them for the future. A Conseil d’Etat decree, in particular to define the procedures for initiating the action, is expected in the coming months.
