FRANCE Law and Practice Contributed by: Grégoire Bertrou and Delphine Grimond, Willkie Farr & Gallagher LLP
• the pre-trial judge managing the case may order interim measures at the preliminary stage, pro- vided that there is an imminent threat or a mani - festly unlawful disturbance. These conditions are expected to be interpreted in line with the standard laid down in Article 835 of the French Code of Civil Procedure; • publicity measures are mandatory to ensure that affected individuals are informed of the proceed- ings. Although this type of action has not undergone major substantive changes, the 2025 reform explicitly clari- fies two key principles: • the claimant is not required to demonstrate harm suffered by group members, nor is there any need to prove intent or negligence on the part of the defendant; and • any penalty payments ( astreintes ) imposed by the court are to be paid into a dedicated fund that finances future class actions. Historically, injunctive relief was unavailable in con- sumer cases, as Article L. 623-1 of the Consumer Code permitted only claims for compensation. How- ever, cessation actions can be especially effective in cases involving ongoing unlawful commercial prac- tices, such as misleading advertisements. In these cases, stopping the harmful practice is often more urgent than seeking damages for past harm. Compensation Actions: A Dual-Phase Model Class actions seeking compensation follow a two- stage process: • liability phase: the court rules on the defendant’s liability and establishes the eligibility criteria for group membership (affected consumers, employ- ees, or investors); and • compensation phase: eligible victims may join the group and seek redress based on the liability judg- ment. France retains the opt-in model, whereby individuals must actively join the group. The window for opting in ranges from two months to five years, a significant extension compared to the previous regime’s two
to six months (in consumer cases). This approach contrasts sharply with the opt-out system used in the United States, and reflects the French legal sys- tem’s emphasis on individual consent and procedural autonomy. Under the EU Directive, Member States could choose between opt-in and opt-out models for compensa- tion claims, but opt-out was excluded for injunctive actions. Article 8 of the Directive states:“ For a quali- fied entity to seek a cessation measure, individual con - sumers shall not be required to express their wish to be represented by that entity. ” France’s retention of the opt-in system aligns with the core civil law principle that “ nul ne plaide par pro- cureur ” one cannot be a party to legal proceedings unless they have either expressly agreed to be rep- resented or personally initiated the claim [source: H. Delage, H. Guignard, Réforme de l’action de groupe: analyse des modifications apportées à son régime , La Semaine Juridique – Entreprise et Affaires , n° 36, 4 September 2025, §26]. An opt-out model would have bound individuals to a judgment without their express consent. Liability phase In the first phase, the court assesses the alleged wrongdoing and applies the relevant general or spe- cial liability regimes. Class actions follow the same substantive rules as ordinary litigation. However, the 2025 reform enhances the court’s role: • it must define group membership criteria; • identify the types of compensable harm; and • either set the amount of compensation or outline the parameters for its assessment and the condi- tions under which compensation will be paid. Unlike the previous regime, which limited compen- sation to harm deemed “capable of being compen- sated,” the court now has broader authority to define compensable loss. In the first phase, the court also orders publicity meas- ures, which is a departure from the former rule that required such publication only after the second phase
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