Product Liability & Safety 2024 Comparisons

In France, product safety is governed by several regulations, depending on the nature of the products and their intended use, as well as by general or sector-specific legislation. In France, consumer law, understood as all the legal and regulatory provisions designed to protect the consumer (any natural person acting for purposes which do not fall within the scope of their commercial, industrial, craft, liberal or agricultural activity) has been particularly developed under the influence of EU law.

The Consumer Code has been comprehensively overhauled to make the texts easier to read and the regulations more accessible, by the Order of 14 March 2016 for the legislative part and the Decree of 29 June 2016 for the regulatory part. It is now divided into eight books dealing respectively with consumer information and commercial practices, formation and performance of contracts, credit, conformity and safety of products and services, powers of investigation and follow-up to inspections, dispute resolution, handling of over-indebtedness, approved consumer protection associations and consumer institutions and is regularly the subject of reform.

It lays down a general obligation for products to comply with regulations in force relating to the health and safety of individuals, fair trading and consumer protection, when they are first placed on the market. General compliance measures are detailed, as well as special obligations according to the nature of the products concerned.

There is a general safety obligation, under which products must, in normal conditions of use or in other conditions reasonably foreseeable by the professional, be as safe as can legitimately be expected and not be harmful to people’s health. A product is considered to meet the general safety requirement if it complies with the specific regulations applicable to it for the protection of consumer health or safety. A product is presumed to satisfy the general safety requirement, as regards of the risks and risk categories covered by the standards applicable to it, when it complies with the non-mandatory national standards transposing the European standards (whose references have been published by the European Commission in the Official Journal of the European Union pursuant to Article 4 of Directive 2001/95/EC of 3 December 2001 on general product safety).

In other cases, the compliance of a product with the general safety requirement is assessed by taking into account the following elements in particular, when they exist:

• 1. Non-mandatory national standards transposing European standards applicable to the product other than those whose reference is published in the Official Journal of the European Union pursuant to Article 4 of Directive 2001/95/EC of 3 December 2001 on general product safety.
• 2. Other French standards.
• 3. European Commission recommendations establishing guidelines for product safety assessment.
• 4. Good practice guides on product safety in force in the sector concerned.
• 5. The current state of knowledge and technology.
• 6. The safety that consumers can legitimately expect.

It should also be noted that the new European Regulation (EU) 2023/988 of 10 May of 2023 on general product safety, published 13 days later will come into force in France on 13 December 2024.

In the area of liability, Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products was transposed into French law within the Civil Code after a certain delay. In French liability law, fault-based liability, which has a different basis from liability for defective products, is also frequently used in product safety matters, as the basis of hidden defects. Product safety issues also involve the criminal liability of the individuals and companies concerned, based on general or special criminal law offences. They may also give rise to financial penalties from the competent authorities.

The DGCCRF is the reference authority for product safety. The DGCCRF’s scope of intervention is very broad and covers a wide variety of products. Indeed, the DGCCRF is also involved in all non-food products and services, and at all levels (production, import, and distribution). Action is stepped up in high-risk areas such as toys and childcare articles, sports and leisure activities, and everyday accidents. Most of the safety actions are based on the expertise of laboratories (Joint DGCCRF and Customs Laboratory Service).

As part of the administrative c-operation organised by Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on co-operation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004, when a request for mutual assistance is made by a member state of the European Union or by the European Commission, the investigation, detection and cessation of infringements or breaches are carried out by the DGCCRF in accordance with the provisions of the Consumer Code.

Other authorities have jurisdiction depending on the products concerned.

For example:

• In the area of food safety, while this mission was previously shared between the Directorate-General for Food of the Ministry of Agriculture and Food Sovereignty (DGAl) and the DGCCRF, in mid-2022 the DGAl was transferred the responsibilities of the DGCCRF, which since 1 January 2024 has taken on missions relating to food safety, and on the management of health crises or contamination.
• The French National Agency for the Safety of Medicines and Health Products (ANSM) is responsible for monitoring the safety of health products regulated by the Public Health Code. It should be noted, however, that as part of the Finance Act for 2023, Decree No 2023-1113 of 28 November 2023 relating to the competent authorities for the supervision and vigilance of cosmetic and tattoo products removed cosmetic and tattoo products from the remit of the ANSM and the DGGCRF has been designated as the competent authority for inspection, control, and market surveillance missions.

The consumer code states that producers shall adopt measures which, taking into account the characteristics of the products they supply, enable them:

• 1. To keep informed of the risks that the products they market may present.
• 2. To take the necessary action to control these risks, including withdrawal from the market, appropriate and effective warnings to consumers and recalls from consumers of products placed on the market.

These measures may, in particular, consist of carrying out sample tests or indicating on the product or its packaging instructions for use, the identity and address of the producer, and the reference number of the product or batch of products to which it belongs. These indications may be made compulsory by order of the Minister for Consumer Affairs and the minister(s) concerned (Article 423-3 of the Consumer Code).

When a producer or distributor is aware that products it has placed on the market for consumers do not meet the legal requirements, it must take the necessary action to prevent risks to consumers and immediately inform the competent administrative authorities. The details of this information are defined by order of the Minister for Consumer Affairs and the ministers concerned. The producer or distributor may not exonerate itself from its obligations by claiming not to have been aware of the risks of which it could not reasonably have been unaware.

When withdrawal or recall measures are implemented, professionals draw up and keep up to date a quantified statement of the products withdrawn or recalled, which they make available to authorised agents.

Since 1 April 2021, professionals have also been obliged to declare their product recalls on the official Rappel Conso website, in accordance with Article L423-3 of the French Consumer Code.

Specific obligations are also set out for certain types of products, in particular food and health products.

First, the Consumer Code lays down a general safety obligation for any producer or distributor who has marketed a product or service that does not meet safety requirements (Articles L423-3 and L421-3 of the Consumer Code). The operator must then immediately initiate the necessary measures (notably withdrawal and/or recall) and notify the authorities. This provision applies regardless of the product placed on the market, as long as it is intended for consumers. The Article also introduces a mandatory reporting procedure on the competent authority’s website (see 1.3 Obligations to Commence Corrective Action).

Specific obligations are also set out for certain types of products, in particular food and health products.

Failure to notify the competent administrative authorities is punishable by a fine of EUR1,500 (Article R452-2 of the Consumer Code), which can be increased up to five times for legal entities.

Furthermore, following an authority control, administrative police measures can be taken, such as compliance injunctions accompanied by a daily fine of up to EUR3,000 (Article L521-1 of the Consumer Code), or a one-year marketing suspension in the event of serious or immediate danger (Article L521-17 of the Consumer Code).

The operator may also be penalised for misleading commercial practices, in which case the fine will be increased to 50% of the expenses incurred by the practice constituting the offence (Article L132-2 of the Consumer Code). Article L132-4 of the Consumer Code provides for additional penalties, such as posting or distributing the decision or a press release to inform the public. Following the adoption of Regulation (EU) 2023/988 in May 2023 on general product safety, which applies from 13 December 2024, Article 2 of Law No 2024-364 of 22 April 2024 containing various provisions for adapting to European Union law in the fields of economics, finance, ecological transition, criminal law, social law and agriculture (known as the DADDUE Law) transposed the measures requiring adaptation of French law, in particular the higher penalties for product recalls now provided for in Article L452-5-1 of the Consumer Code (five years’ imprisonment and a fine of EUR600,000, which may be increased to 10% of the average annual turnover of the operator in question).

Articles L521-1 et seq of the French Consumer Code lay down specific obligations in terms of measures taken by the DGCCRF to protect consumer safety. The DGCCRF may issue injunctions, which may be publicised. The injunction may be accompanied by a daily penalty payment of up to EUR3,000. The total amount requested to pay the penalty may not exceed EUR300,000.

Where the infringement is punishable by a fine of at least EUR75,000, the periodic penalty payment ordered in application of this article may be determined on the basis of the worldwide turnover excluding tax achieved by the controlled legal entity during its last financial year, but may not exceed 0.1% of this turnover. The total of the sums requested for the liquidation of the periodic penalty payment may not exceed 5% of the worldwide pre-tax turnover for the last financial year for which the accounts have been closed.

It can also take more severe measures, in particular police decisions, following a procedure described in Articles L521-1 et seq of the French Consumer Code. Specific measures are detailed for establishments and products (Articles L521-5 to L521-18) and services (Articles L521-19 to L521-26).

Specific obligations are also set out for certain types of products, in particular food and health products.

Product Liability

This regime is covered by Articles 1245-1 et seq of the Civil Code, which transpose Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products. This is the so-called objective liability regime, under which the producer is liable for damage caused by a defect in his/her product, whether or not he/she is bound by a contract with the victim.

A producer, when acting in a professional capacity, is the manufacturer of a finished product, the producer of a raw material or the manufacturer of a component part.

Any person acting in a professional capacity is deemed to be a producer:

• who presents himself/herself as a producer by affixing his/her name, trade mark or other distinctive sign to the product; and
• who imports a product into the European Community with a view to sale, hire, with or without a promise to sell, or any other form of distribution.

If the producer cannot be identified, the seller, the lessor, with the exception of the lessor or the lessor assimilated to the lessor, or any other professional supplier, is liable for the safety defect in of the product, under the same conditions as the producer, unless he/she designates his/her own supplier or the producer, within a period of three months from the date on which the victim’s claim was notified to him.

The supplier’s claim against the producer is governed by the same rules as a claim by the direct victim of the defect. However, he/she must act within one year of the date on which he/she is summoned to appear in court. In the event of damage caused by a defect in of a product incorporated into another, the producer of the component part and the producer who incorporated it are jointly and severally liable.

This system applies to compensation for damage resulting from injury to the person, where the compensation for damage exceeds EUR500, or resulting from damage to property other than the defective product itself.

The claimant must prove the damage, the defect and the causal link between the defect and the damage.

Tort Law

The victim of an injury caused by a defective product also has the right to claim damages from the producer if he/she proves that his/her injury resulted from a fault committed by the producer.

This principle was reaffirmed by the Court of Cassation in a recent decision (First Civil Chamber of the Court of Cassation, 15 November 2023 – appeal No 22-21.174). In a press release relating to this decision, the Court of Cassation illustrated this principle by providing examples of fault (if the producer kept a product in circulation even though he/she knew it had a defect, or if he/she was not sufficiently vigilant as to the risks posed by the product).

The claimant must prove the fault, the damage and the causal link between the fault and the damage.

Hidden Defect

The seller is liable for any hidden defects in the goods sold which render them unfit for their intended use, or which impair that use to such an extent that the buyer would not have purchased them, or would have paid a lower price for them, had he or she been aware of them.

The seller is not liable for apparent defects of which the buyer has been able to convince themselves.

They are liable for hidden defects, even if they did not know about them, unless, they stipulated that they will not be obliged to provide any guarantee.

If the seller was aware of the defects, they are liable to the buyer for all damages in addition to restitution of the price received. On the other hand, if the seller was unaware of the defects, they will only be obliged to refund the price and reimburse the buyer for the costs incurred by the sale.

Criminal Law

In addition, common law offences may be established, in particular those relating to unintentional harm to the human body, administration of harmful substances, endangering others and failure to assist a person in danger.

There are also offences under criminal consumer law, including misleading commercial practices (Article L132-2 of the Consumer Code up a two-year prison sentence and a EUR3 million fine).

The offence of deception may also be constituted. Deception is defined as the act by any person, whether a party to the contract or not, of deceiving or attempting to deceive the contracting party, by any means or process whatsoever, even through the intermediary of a third party:

• either as to the nature, species, origin, substantial qualities, composition or content in useful principles of any goods;
• on the quantity of the goods delivered or on their identity by the delivery of goods other than the specific goods which were the subject of the contract; or
• on the suitability for use, the risks inherent in the use of the product, the tests carried out, the instructions for use or the precautions to be taken.

Deception, or attempted deception, is punishable by two years’ imprisonment and a fine of EUR300,000 (Article L454-1 of the Consumer Code), which may be increased to EUR750,000 and seven years’ imprisonment.

Product Liability

Any claimant is entitled to bring an action if they meet the conditions of law and if they are seeking compensation for damage more than EUR500 resulting from an injury to the person.

Tort Law

The tort action is open to all claimants or their beneficiaries who meet the conditions of law.

Hidden Defect

The buyer has the right to initiate the action against the seller.

Product Liability

In the absence of fault on the part of the producer, the producer’s liability is extinguished ten years after the product which caused the damage was put into circulation, unless the victim has taken legal action during this period.

An action for damages shall be barred within three years from the date on which the claimant knew or ought to have known of the damage, the defect and the identity of the producer.

Tort Law

Personal or movable actions are time-barred after five years from the date on which the holder of a right knew or should have known of the facts enabling him/her to exercise it (new Article 2224 of the Civil Code).

Liability claims arising from an event resulting in bodily injury, brought by the direct or indirect victim of the resulting damage, are time-barred after ten years from the date of consolidation of the initial or aggravated injury (new Article 2226 of the Civil Code).

Hidden Defect

A person who discovers a defect in a property sold to them has two years to bring an action under the warranty for hidden defects. This period may be suspended if an expert assessment has been ordered. This warranty action must also be brought within 20 years after the sale of the property (Cour de cassation, 21 July 2023 Chambre mixte – Pourvois Nos 21-15.809, 21-17.789, 21-19.936, and 20-10.763).

Unless otherwise provided, the court having territorial jurisdiction is that of the place where the defendant is domiciled. If there are several defendants, the plaintiff may choose to bring proceedings in the court for the place where one of them is domiciled. The plaintiff may also choose:

• in matters relating to a contract, the court of the place where the goods were actually delivered, or the service was rendered; and
• in matters relating to tort, the court of the place where the harmful event occurred or the court of the place where the damage was suffered (Articles 42 and 46 of the Code of Civil Procedure).

In the context of liability for defective products, there is an international convention that deals specifically with the law applicable in the event of damage caused by a defective product (the 1973 Hague Convention on Liability for Defective Products).

In consumer law, the consumer may bring the matter either before one of the courts with territorial jurisdiction under the Code of Civil Procedure, or before the court of the place where the consumer lived when the contract was concluded or when the harmful event occurred (Article R631-3 of the Consumer Code).

In group actions, the court with territorial jurisdiction is that of the place where the defendant lives. The Paris court has jurisdiction if the defendant lives abroad or has no known domicile or residence.

This is not applicable in France.

Under French law, it is incumbent upon each party to prove, in accordance with the law, the facts necessary for the success of its claim and the judge has the power to order, ex officio, all legally admissible measures of inquiry (Articles 9 and 10 of the Code of Civil Procedure).

Except where the law provides otherwise, evidence may be adduced by any means (Article 1358 of the Civil Code).

Furthermore, in a judgment handed down on 22 December 2023 (No 20-20.648), the plenary session of the Cour de Cassation ruled on the conditions for admissibility of evidence obtained or produced in an unlawful or unfair manner under certain strict conditions.

If there is a legitimate reason to preserve or establish, prior to any legal proceedings, proof of facts on which the resolution of a dispute may depend, legally admissible investigative measures may be ordered upon request of any interested party, on application or in summary proceedings (Article 145 of the Code of Civil Procedure). The latter requires for the applicant to demonstrate the existence of a legitimate reason). The assessment of what constitutes a legitimate reason within the meaning of this text falls within the discretionary power of the court hearing the case. The futility of the measure requested is in itself an obstacle to the existence of a legitimate reason. Indeed, case law rules out the existence of a legitimate reason when the request is not based on any precise, objective and verifiable fact, and the applicant does not therefore demonstrate the existence of a plausible, credible dispute, albeit possible and future, the content and basis of which would be identified, at least approximately (Court of Cassation, Civil Division 2, 10 December 2020, 19-22.619, Published in the Bulletin).

Civil courts have held that business secrecy does not in itself constitute an obstacle to the application of the provisions of Article 145 of the Code of Civil Procedure. Therefore, it is up to the interim relief judge to check whether the measure ordered is necessary for the applicant to exercise his/her right to evidence and proportionate to the conflicting interests involved (Cass 2nd civ, 25 March 2021, No 20-14.309).

Where, in the course of civil or commercial proceedings relating to an investigative measure requested prior to any trial on the merits or in the course of proceedings on the merits, reference is made to or the communication or production of a document is requested which is alleged by a party or a third party or which has been deemed to be of such a nature as to infringe a business secret, the judge may, of his/her own motion or upon request of a party or a third party, if the protection of this secrecy cannot be ensured otherwise and without prejudice to the exercise of the rights of the defence:

• Take cognisance of the document alone and, if necessary, order an expert report and seek the opinion, for each of the parties, of a person authorised to assist or represent them, in order to decide whether to apply the protective measures provided for in this article.
• Decide to limit the communication or production of this document to certain of its elements, order its communication or production in summary form or restrict access to it, for each of the parties, to a maximum of one natural person and one person authorised to assist or represent him or her.
• Decide that the hearing will take place and that the decision will be handed down in chambers.
• Adapt the reasons for its decision and the means of publicising it to the requirements of protecting business confidentiality (Article L153-1 of the Commercial Code).

There are no specific rules of evidence in relation to defective products before appointed experts.

In France, experts are appointed based on lists drawn up by the Cour de Cassation and the Courts of Appeal. Article 275 of the Code of Civil Procedure allows the expert to ask the parties directly to provide all documents he/she deems necessary in order to carry out his/her task. This request is not subject to any formalities and the parties must respond without delay. However, if the parties fail to do so, the expert will inform the judge, who may order the submission of documents under penalty.

On the other hand, the judge can order the parties to produce specially designated documents but cannot compel them to produce “any documents requested of them” by the expert.

The burden of proving the elements constituting liability lies with the claimant.

In the case of vaccines alleged to be defective, the Court of Cassation has accepted the use of presumptions of fault to prove the defect and the causal link between the defect and the damage where there is scientific uncertainty. This has been validated by the Court of Justice of the European Union, subject to the the fact that the national courts ensure that the practical application they make of the said evidential system does not result in disregarding the burden of proof established by Directive or in undermining the effectiveness of the liability system established by this Directive. It also states that the Directive precludes a system of proof based on presumptions which would always be regarded as established when certain predetermined factual indications of causation are met (Judgment of the Court (Second Chamber) of 21 June 2017, N. W and Others v Sanofi Pasteur MSD SNC and Others).

In civil matters, the competent courts are generally the civil courts (Tribunal d’instance in civil matters, for all personal actions or actions up to the value of EUR10,000 and Tribunaux judiciaire) or the commercial courts (Tribunal de commerce).

In the case of healthcare products, the administrative courts may deal with product liability under the no-fault liability regime applicable to healthcare establishments in respect of the healthcare products they use (a regime established by the Court of Justice of the European Union in its decision CJEU, 21 December 2011, CHU de Besançon c/ Thomas D..., CPAM du Jura, aff. C-495/10) and subsequent warranty claims (depending on the nature of the contracts between the establishments and the producers).

In criminal matters, special courts have jurisdiction.

Finally, in the case of health products, the alternative methods introduced via the CCI or ONIAM are also likely to apply.

In civil cases, the appeal procedure is governed by the Code of Civil Procedure (CPC).

The time limit for appeal is:

• one month for contentious judgments (CPC, Article 538); and
• 15 days for orders including summary orders (CPC, Article 490) or those of the pre-trial judge (CPC, Article 795) as well as for decisions of the enforcement judge (CPC, Articles R. 121-20 and R. 311-7).

Appeals against criminal judgments are governed by specific rules set out in the Code of Criminal Procedure.

In the case of defective products, the producer is automatically liable unless he/she can prove:

• that he/she did not put the product into circulation;
• in regards to the circumstances, it must be considered that the defect which caused the damage did not exist at the time when the product was put into circulation by him/her or that this defect arose subsequently;
• that the product was not intended for sale or for any other form of distribution; and
• that the state of scientific and technical knowledge at the time he/she put the product into circulation did not allow the existence of the defect to be detected, except where the damage was caused by an element of the human body or by products derived from it.

On that aspect, the Cour de Cassation has decided to refer a question to the Conseil constitutionnel on the point of knowing whether, in order to exonerate the liability of the manufacturer of a defective product on the basis of the risk of development, the difference in treatment existing between the victims of bodily injury resulting from a health product, depending on whether or not this product is derived from the human body, is contrary to the principle of equality before the law (Civ. 1st, 5 January 2023, FS-B, No 22-17.439) – which was confirmed by the Constitutional Council (Decision No 2023-1036 QPC of 10 March 2023). On that matter, in a case involving Mediator, a drug used to treat diabetes, the Cour de Cassation recently ruled that the producer’s knowledge of the product’s safety defect precluded the development risk exemption from being invoked (Civ. 1re, 6 December 2023, F-D, No 22-21.238).

Otherwise, the defect is due to the product’s compliance with mandatory legislative or regulatory rules.

The producer of the component part is also not liable if he/she establishes that the defect is attributable to the design of the product in which that part has been incorporated or to the instructions given by the producer of that product.

The producer’s liability may be reduced or eliminated, having regard to all the circumstances, where the damage is caused jointly by a defect in the product and by the fault of the victim or of a person for whom the victim is responsible.

In matters of tort, the defendant may be exonerated in the event of fault on the part of the victim or force majeure.

Regarding product liability, the producer is automatically liable unless he/she can prove that the defect is due to the product’s compliance with mandatory legislative or regulatory rules. It should be emphasised, however, that the producer may be liable for the defect even though the product was manufactured in compliance with the rules of the trade or existing standards, or if it was the subject of an administrative authorisation.

Compliance with regulatory requirements may also be asserted by the defendant in an action based on tort if the alleged fault consists of a breach of the regulations.

In matters of liability and at the end of the proceedings, the costs incurred may, under certain conditions, be charged to the unsuccessful party.

Article 695 of the Code of Civil Procedure lists the costs. Indeed, costs include notably:

• bailiff’s fees incurred in serving the summons, pleadings and judgment;
• the taxable fees of the lawyers appearing in the case, where their involvement is compulsory, calculated on the basis of the value in dispute and made up of the fixed fee, the proportional fee and the graduated fee;
• the costs of judicial expertise; and
• compensation received by the winning party’s lawyer under the legal aid scheme.

In his/her decision, the judge will rule on the costs in accordance notably with the provisions of Article 696 of the Code of Civil Procedure:

• losing party must pay the costs; or
• by reasoned decision, he/she may order that all or part of the costs be borne by another party (in particular where a party is only partially successful, or in view of the nature of the dispute).

In all cases, the judge shall consider the fairness or economic situation of the convicted party.

No litigation funding exists. If the claimant’s financial resources are insufficient for a trial before a French court, he or she may be entitled to financial assistance from the State, known as “aide juridictionnelle”.

Collective Action

Group action was introduced in France by the Consumer Act 2014-344 of 17 March 2014 and it allows victims of the same damage caused by a professional to group together and take legal action. The plaintiffs can thus defend themselves with a single file and a single lawyer.

In force since 1 October 2014, its scope was modified by Law No 2016-1547 of 18 November 2016 on the modernisation of the justice system and Law No 2018-1021 of 23 November 2018 on the evolution of housing, development, and the digital economy. A group action can be launched in the following areas:

• consumer and anti-competitive practices;
• health;
• environment;
• protection of personal data;
• discrimination in the workplace; and
• property rental.

The court with territorial jurisdiction is that of the place where the defendant lives. The Paris court has jurisdiction if the defendant lives abroad or has no known domicile or residence. The procedure is divided into two phases: the admissibility and liability phase, followed by the compensation phase.

Group action must meet a number of conditions:

• At least two people must consider that they have suffered damage as a result of the same breach of duty by the professional.
• The individuals must have recourse to an approved association or trade union whose statutory purpose relates to the interests being defended.

Depending on the area in which the group action is launched, it may claim compensation for individual material, non-material or bodily harm.

A draft law of 15 December 2022 on the legal regime for group actions aims to simplify group actions, provide better compensation for victims and reduce the time taken to bring cases to trial. This bill was passed by the National Assembly on 8 March 2023 (Sen., No 420, 9 March 2023) and adopted by the Senate on 6 February 2024. It provides for far-reaching changes to the group action mechanism, including a single system for group actions extended to all matters, an extension of the damages that can be compensated (personal injury, material or non-material damage) and specialised courts.

According to available information, 32 group actions have been initiated in France since 2014, including 20 in the consumer field.

Consolidated Action

In France, certain actions are brought in the form of consolidated actions, in which the plaintiffs join together and act in a single action brought by a single lawyer, claiming identical damages for all the plaintiffs.

Court of Cassation, Civil Division 1, 15 November 2023, 22-21.179

This decision deals with the principle that the victim may bring an action on the basis of product liability or on other grounds with a different basis, in particular fault.

In a press release dated 15 November 2023, the Court of Cassation supported this decision by stating that the Court had made it easier for the victim of a defective medicinal product to bring an action before the courts, since the victim can ask the manufacturer for compensation for the damage suffered by choosing to invoke either the product’s defect or a fault committed by the manufacturer, which gives the victim more time to bring an action.

The Cour de Cassation noted that the CJEU had ruled that the reference in Article 13 of Directive, to the rights which the victim of damage may rely on under contractual or non-contractual liability must be interpreted as meaning that the system established by that Directive does not preclude the application of other systems of contractual or non-contractual liability based on different grounds, such as liability for latent defects or fault (ECJ, judgment of 25 April 2002, González Sánchez, C-183/00, paragraph 31).

It follows, according to the Court, that the victim of damage attributed to a defective product may bring an action for liability against the producer on the basis of the second of those provisions, if he/she establishes that his/her damage results from a fault committed by the producer, such as keeping the product in circulation of which he/she is aware of the defect or failing in his/her duty of care with regard to the risks presented by the product.

Cour d’appel de Rouen, Ch. civ. 25 April 2024, No 23/03137 (on referral from Cass. 1re civ., 5 July 2023, No 22-18.914, FS-B), Aff. C-338/24 Sanofi Pasteur, registered by CJEU on 7 May 2024

The Rouen Court of Appeal referred to the CJEU questions relating to fault vs lack of safety, the ten-year time-limit and the three-year time-limit in the following terms:

• Article 13 of Directive 85/374/EEC of 25 July 1985, in its interpretation resulting from the judgment of 25 April 2002 (Gonzalez Sanchez C-183/00) according to which the victim of damage may rely on other contractual or non-contractual liability regimes based on grounds different from that established by the Directive, to be interpreted as meaning that the victim of a defective product may seek compensation from the producer for his/her loss or damage on the basis of the general system of fault-based liability by relying in particular on the fact that the product was kept in circulation, on a failure to fulfil his/her duty of care with regard to the risks presented by the product or, in general, on a safety defect in the product.
• Article 11 of Directive 85/374/EEC of 25 July 1985, according to which the rights conferred on the victim pursuant to the Directive lapse on expiry of a period of ten years from the date on which the product causing the damage was put into circulation, contrary to the provisions of Article 47 of the Charter of Fundamental Rights of the European Union in that it would deprive the victim suffering progressive damage caused by a defective product of his/her right of access to a judge.
• Article 10 of Directive 85/374/EEC of 25 July 1985, which fixes as the starting point of the three-year limitation period “the date on which the claimant knew or ought to have known of the damage”, can it be interpreted as running only from the day on which the full extent of the damage is known. In particular, by setting a consolidation date defined as the point at which the condition of the victim of the bodily injury is no longer evolving, so that in the case of an evolving pathology, the limitation period does not begin to run, and not from the day on which the injury definitely appeared, in connection with the defective product, regardless of its subsequent evolution.

Following the adoption of Regulation (EU) 2023/988 in May 2023 on general product safety, which applies from 13 December 2024, Article 2 of Law No 2024-364 of 22 April 2024 containing various provisions for adapting to European Union law in the fields of economics, finance, ecological transition, criminal law, social law and agriculture (known as the DADDUE Law) transposed the measures requiring adaptation of French law, in particular the higher penalties for product recalls now provided for in Article L452-5-1 of the Consumer Code (five years’ imprisonment and a fine of EUR600,000, which may be increased to 10% of the average annual turnover of the operator in question).

From 17 February 2024, new obligations set out in the European Digital Services Act (DSA) of 19 October 2022 will apply to online marketplaces, to ensure that sellers are identified, that information on products sold is more complete and that measures to recall non-compliant or dangerous products are more effectively relayed. These obligations will be monitored by the DGCCRF.

Law No 2020-105 of 10 February 2020 on the fight against waste and the circular economy (known as the Agec Law) introduced a reparability index for several product categories, which will become a sustainability index, with additional criteria. The durability index will initially apply to televisions (from 1 October 2024), then to washing machines (from 1 January 2025).

Proposal for a Directive on adapting non contractual civil liability rules to artificial intelligence and Proposal for a directive of the European Parliament and of the Council on liability for defective products will profoundly change the conditions for implementing product liability on the one hand and fault liability in the field of artificial intelligence on the other and should significantly change the rules applied in France.