FRANCE Trends and Developments Contributed by: Laetitia Tombarello and Audrey Demourgues, Bredin Prat
ciations approved by the authorities, provided notably that it has been registered for at least two years, has 24 months of public activity defending the interests that have allegedly been breached, and providing in its statutes for the defence of such interests, or, • the public prosecutor ( ministère public ), who may act as a main party (but only for the cessation of a breach), or intervene as a joined party in any class action. In addition, new measures provided by the DDADUE Act are expected to lead to an increase of the number of class actions to be initiated in the future, namely the possibility for any qualified organisation to substi - tute the organisation that originally initiated the class action, if it can no longer pursue it, to ensure continu - ity of the lawsuit. Furthermore, trade unions or asso - ciations are allowed, under certain circumstances, to seek external funding for class action proceedings, provided, however, that such funding is made pub - lic and that it has neither for purpose nor effect the exercise by these third parties of any influence over the initiation or conduct of the class action that could be detrimental to the interests of the persons repre - sented. Applicable legal procedure The DDADUE Act introduces a new, unified procedure for all class actions, with certain specificities pertain - ing to labour law matters. Preliminary notice Before filing a class action based on a breach of the French Labour Code, the initiating party (such as a trade union or association) must formally request that the employer cease the alleged breach. The employer then has one month to inform the works council and representative trade unions within the company (if any) of such request. If the works council and/or one or more trade unions demand it, the employer must engage in discussions regarding corrective measures in relation to the alleged breach. Court referral The class action must be filed with one of the spe - cifically designated judicial courts (the list of which is to be published by Decree), either six months at
the earliest after the initial request to the employer to cease the breach or immediately if the employer rejects the request. The court is vested with broad powers, including the ability to order, before any rul - ing on the merits of the case, interim measures to halt ongoing harm or prevent manifestly unlawful acts during proceedings. Proceedings and remedies when the parties seek to cease an alleged breach When an organisation ultimately initiates a class action lawsuit with the aim of putting an end to a breach, it is not required to establish either harm or the employer’s intent or negligence. If the court finds that a breach has occurred, it may order the employer to bring such breach to an end and to take, within a timeframe it sets, all necessary measures to that effect, if neces - sary, with the assistance of a third party appointed by the court. The court may also attach a penalty pay - ment ( astreinte ) to its decision, which is to be paid into a fund dedicated to financing group actions. Finally, appropriate publicity measures may be imposed on the employer to inform those who may be affected by the action. Proceedings and remedies when the parties seek compensation for harm When a trade union or an association files a class action lawsuit seeking compensation for harm suf - fered, the DDADUE Act distinguishes between two procedures, summarised as follows. • A procedure in which the trade union or the associ - ation presents individual cases for the court to rule on. The court decides on the employer’s liability in these cases, defines the criteria for inclusion of the relevant employees/persons in the affected group, and determines the harm to be compensated for each category of persons. Where possible, the court may set an amount of compensation or provide the elements allowing its assessment on a case-by-case basis. The court also sets the period – between two months and five years – during which employees meeting the inclusion criteria and wishing to rely on the judgment regarding liability may join the class action group in order to obtain compensation for their harm. Finally, the court orders, at the employer’s expense, appropriate
212 CHAMBERS.COM
Powered by FlippingBook