The texts published are drafted in their original language and are not subject to any translation.
Overview of Joint Representative Actions
Prepared by Waseem NASEEVEN
Established by a law of 1992, the joint representative action is intended to defend the individual interests of several consumers. More precisely, it consists of grouping these individual interests into a single action brought by an accredited association representing the injured consumers.
It must be observed that the requirement of a written mandate from each of the injured consumers, combined with the prohibition on canvassing them in order to obtain such mandates, has led this action to fail. Indeed, the publicity of this action is extremely regulated: it is prohibited both on television and on radio, with the result that the action remained unknown to most victims. Despite the very rare instances in which it was used, it was not abolished during the most recent reforms of consumer law.
Fewer than ten joint representative actions have been brought since 1992; they are listed below:
Cass. 1st Civ., 26 May 2011
This judgment concerns the joint representative action available to consumer associations under Articles L. 422-1 et seq. of the Consumer Code, which allows such associations to bring proceedings seeking compensation for harm caused to the collective interests of consumers. An action of this type was brought by UFC-Que Choisir following the condemnation, by the former Competition Council, of mobile telephone operators for engaging in a cartel. A customer subsequently sued a telephone operator for compensation for the harm suffered as a result of that anti-competitive practice. The association voluntarily joined the proceedings in the form of a joint representative action and was followed by more than three thousand customers. All these actions were declared inadmissible by the trial courts — first by the Commercial Court and then by the Paris Court of Appeal (22 January 2010, RG No. 08-09844, Dalloz jurisprudence). In particular, the consumer association was criticised for misuse of procedure and for having, in reality, engaged in unlawful canvassing. UFC-Que Choisir had created a website featuring a damage calculator and offering internet users the possibility of signing a mandate authorising the association to act on their behalf in court. This amounted to passive canvassing and infringed the prohibition on public solicitation laid down in Article L. 422-1, paragraph 2.
The reasoning was fully upheld by the Court of Cassation, which at the same time effectively rewrote the aforementioned paragraph in order to adapt it to the internet era. That provision, introduced by Law No. 92-60 of 18 January 1992, logically contemplated only the communication methods existing at the time: in addition to personalised letters, the “collective” means of communication such as television, radio, posters and leaflets. The Court of Cassation approved the Paris Court of Appeal’s prohibition of “any public solicitation by means of mass communication or by personalised letter” for the purpose of obtaining mandates. It thus interpreted the paragraph broadly, considering it to be drafted in non-exhaustive terms, whereas its wording might suggest the opposite. From now on, any means of communication, even if not expressly referred to in the text, may fall within its scope. As may be imagined, this judgment was not well received by consumer associations, just as the Paris Court of Appeal’s decision had not been. It once again highlights the fact that the joint representative action is subject to such restrictive conditions of implementation that only the introduction of a genuine class action appears truly suited to securing compensation for small collective harms arising from everyday contracts, such as mobile telephone agreements.
Thus, on 26 May 2011, the First Civil Chamber of the Court of Cassation confirmed the invalidity of the joint representative action brought by UFC-Que Choisir against mobile telephone operators, reproaching the association for having solicited mandates to bring legal proceedings via the internet. In other words, a consumer association may not appeal to the public in order to obtain mandates to bring a joint representative action — a clear illustration of the limits of the French judicial system.
Paris Court of Appeal, 27 February 2015 (Div. 02, Ch. 02)
This judgment of 27 February 2015 of the Paris Court of Appeal concerns the admissibility of a joint representative action.
An individual member of the Association française des usagers des banques (AFUB) unsuccessfully sought to establish the contractual liability of SOFINCO on the grounds that it had allegedly failed to advise him, to prepare his defence, and to produce the necessary documents to establish that the bank’s claim for payment was time-barred. In this case, the appellate court held that the documents produced in the proceedings did not make it possible to establish that AFUB, in the absence of communication of its statutes, was an accredited association for the protection of consumers’ interests, nor, above all, that in the specific case the banking customer had mandated it to defend his interests against the banking institution within the framework of a joint representative action, as provided for under the then applicable provisions of Article L. 422-1 of the Consumer Code — the only legal basis capable of supporting the existence of such a mandate granted to that association.
Commercial Court, 15th Chamber, 6 December 2007
In this case, the 15th Chamber of the Commercial Court held that the procedural documents did not comply with the formal requirements imposed by the Consumer Code for a joint representative action. In particular, the accredited consumer association failed to demonstrate that it had been duly mandated by the individuals who joined its action, in accordance with Articles R. 422-1 and R. 422-2 of the Consumer Code. Accordingly, the action was declared inadmissible.
Rennes District Court, 17 April 1997
Where it holds national accreditation to exercise the rights granted to accredited consumer associations, the Confédération nationale du logement has standing to bring a joint representative action. Such action is admissible where the individual harms invoked all concern the same professional and where the Confédération nationale du logement produces the written mandates of the consumers it represents, whose names, first names and addresses are indicated in the writ of summons.
A sale concluded in a shop with a consumer who was invited by telephone to come and collect a gift is subject to the rules governing doorstep selling. Failure to comply with those rules entails the nullity of the sale.
Cass. Crim., 25 September 2012
Here, the joint representative action enables victims who have suffered damage arising from the same source to be represented by an association. Its principal applications lie in consumer law, and this judgment confirms its applicability in environmental law.
Cour d’appel de Paris, 5 April 2018
Here, BNP PARIBAS PERSONAL FINANCE invoked the nullity of the writ of summons, arguing that it amounted to a joint representative action governed by Article L. 422-1 of the Consumer Code. However, such actions may only be brought by accredited associations. The case did not concern a common legal basis, but rather eight independent contractual transactions involving five different contracting companies and having different subject matters.
The company contended that the action brought by a group of individuals — a group lacking legal personality — did not have standing to sue, since it concerned eight distinct contractual transactions.
The Court of Appeal set aside the first-instance judgment and declared the actions brought by each of the claimants inadmissible, holding that the individuals had not acted as a group but had each asserted their own individual rights. Furthermore, the provisions of Article 36 of the Code of Civil Procedure, relating to the assessment of jurisdictional thresholds where several claimants act on the basis of a common title, could not be interpreted as giving rise to any nullity of the present action.
TGI Nanterre, 20 February 2011: UFC-Que Choisir and others v. AOL France
In this case, AOL characterised the action brought by UFC as a joint representative action and raised an objection of inadmissibility to the action initiated by UFC on the basis of Article L. 421-1 of the Consumer Code, on the ground that it failed to establish the direct or indirect harm allegedly caused to the collective interests of consumers. It also sought the nullity of the writ issued at the request of the two natural persons, arguing that it lacked a statement of their factual and legal grounds.
The Tribunal de Grande Instance held that UFC had in no way asserted, in its initiating document, that its action was a joint representative action, and it clearly stated at the hearing that its claim did not fall within that category. AOL’s analysis was therefore entirely erroneous, and the objection of inadmissibility it had raised was unfounded. UFC was exercising the rights conferred upon it under Article L. 421-2 of the Consumer Code. Since it alleged misleading advertising likely to mislead a clearly identifiable category of consumers — in this case, internet users who had contracted with AOL on the basis of that advertising — it sufficiently established the direct or indirect harm allegedly caused to the collective interests of consumers, such that the objection of inadmissibility raised on that ground was dismissed.
Cour d’appel de Nouméa, 30 November 2006
In the present case, UFC-Que Choisir requested that the Court declare its intervention admissible pursuant to Article 5 of the Law of 5 January 1988 concerning the intervention of accredited consumer associations before the civil courts in order to seek the application of the measures provided for in Article 2 of that Law, in particular the cessation of unlawful practices, where the main claim seeks compensation for harm suffered by one or more consumers as a result of acts not constituting a criminal offence — which was the case here. It submitted that the first-instance court had declared its intervention inadmissible for failure to provide proof of a mandate authorising its President to bring proceedings, and it produced its statutes, which grant its President standing to act in court on behalf of the association, a power which he exercises without requiring a vote of the general assembly.
The Court of Appeal upheld the contested judgment, which had rightly declared UFC-QC’s action inadmissible. Although its President had standing to act under the statutes, the association failed to demonstrate that he had the authority to bring proceedings on its behalf in the absence of a specific and prior mandate produced for that purpose. The association also failed to establish the existence of harm suffered by one of its members. Nor was there any written mandate from the claimant in the context of a joint representative action.