On 24 November 2020, the European Parliament endorsed a European Union directive on representative actions for the protection of the collective interests of consumers.

This new directive will allow groups of consumers to join forces and launch collective actions in the European Union

Member States will have to implement a system of representative actions (i.e. class actions initiated on behalf of consumers - the consumers concerned are not parties to the proceedings - by a qualified entity) aiming at protecting the collective interests of EU consumers in the event of a breach of certain EU rules.

It will empower designated consumer organizations to seek injunctions and/or redress, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader who has allegedly infringed one of the EU legal acts set out in the annex to the directive. These legal acts cover the healthcare & life sciences area. In particular, the product liability directive is part of this annex.

The directive notably relies on the “loser pays" principle to prevent abusive lawsuits.

Next steps

The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it. The new rules will apply to collective actions brought on or after its date of application.

Potential consequences in France

The EU class action would be very similar to the existing French class action, created by the "Hamon Act" dated 17 March 2014. Therefore, a strict transposition of the directive should not substantially change the French legal system.

Yet, this transposition could also be considered by the French legislator as an opportunity to review the existing French class action so as to make it more attractive.

Indeed, and as highlighted by an information report of the French National Assembly dated 11 May 2020, the existing French class action did not prove to be successful. In the healthcare area, only three class actions have been initiated in France to date. The authors of this report consider that transposing the directive could be the best moment to carry out an in-depth reform of French class actions.

The reform proposals made in this report are very bold: empowering French associations to advertise the class actions they wish to initiate, amending Article 700 of the French Code of Civil Procedure in order to force French courts to take into consideration what was really paid by the parties to the proceedings, applying discovery proceedings in the context of class actions, etc.

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Please note this blog post was written by a Clifford Chance LLP employee. Clifford Chance LLP is the parent company of Clifford Chance Applied Solutions (CCAS). The content within this post does not constitute legal advice.