FRANCE Law and Practice Contributed by: Grégoire Bertrou and Delphine Grimond, Willkie Farr & Gallagher LLP
Critically, only the Government or the Public Prosecu- tor may request the imposition of such a penalty, and the court must provide a detailed, reasoned judgment when doing so. The revenue from the fine is directed to a specific public fund designed to support future class action lawsuits. This fund aims to improve access to justice by creating a positive feedback loop: the penalties for unlawful actions help finance additional enforcement efforts. While the civil fine shares similarities with punitive damages, it is regrettable that the French legislator chose to diverge from the EU Directive, particularly from Recital 10 of Directive 2020/1828, which explic- itly states: “In order to prevent the misuse of representative actions, the award of punitive damages should be avoided.” From a constitutional perspective, the civil fine may raise significant legal concerns. These include poten- tial violations of the principle of proportionality of pen- alties and questions regarding compliance with the principle of legality of offences and penalties, due to the relative vagueness of the term faute lucrative and the discretionary nature of its application. Although the Constitutional Council allowed the law to be enacted following a challenge by sixty members of Parliament, the ambiguity surrounding the defini- tion and enforcement of the civil fine could lead to priority constitutional questions ( question prioritaire de constitutionnalité ) in its early judicial applications (Cons. Const., DC, 29 April 2025, n° 2025-879: JO, 2 May 2025). 3.12 Settlement and ADR Mechanisms The collective liquidation procedure provides a struc- tured settlement pathway. The court defines the harm and valuation parameters, and the parties negotiate within a court-imposed period (a minimum of six months), after which the court decides on homolo- gation. If the terms are unbalanced, a two-month renegotiation is ordered; failing that, the court sets compensation. Associations may coordinate media-
tion efforts in the second phase. Any homologated agreement has res judicata effect for members of the compensated group. 3.13 Judgments and Enforcement of Judgments Judicial Oversight and Enforcement Mechanisms Final judgments in class actions must include: • a description of the class (the individuals or entities affected); • the criteria for membership (who may join the group); • the terms of redress (including the type and extent of compensation); and • the publicity measures to inform eligible individuals of their rights. The execution of the compensation phase may be carried out in one of several ways: • directly by the defendant, when instructed by the court; • by the claimant association, acting under a special mandate granted by group members; or • by court-appointed judicial officers, such as com- missaires de justice , when required. Res Judicata, Limitation Periods and Substitution of Claims The initiation of a class action – whether seeking ces- sation of unlawful conduct or compensation – inter- rupts the limitation period applicable to individual claims based on the same facts. From that point on, individual claims are suspended for the duration of the collective proceedings. Once a judgment on liability is issued or a settlement agreement is homologated, the decision is binding on all members of the group who have received com- pensation. Furthermore, judgments on liability and homologated settlements (court-approved agreements) have res judicata effect with respect to all group members whose harm has been compensated. This means that the legal findings in these judgments are binding and cannot be re-litigated by the same parties in connec-
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