Product Liability & Safety 2019

Last Updated July 09, 2019

France

Law and Practice

Authors



Signature Litigation AARPI is a specialised firm handling major high-value litigation, arbitration and regulatory investigations. It often handles multi-party disputes stretching across multiple jurisdictions and is best known as a commercial and financial market litigation practice which operates on a conflict-free platform. Signature acts for a large number of worldwide manufacturers as well as banks and other institutions operating in the financial markets. Its Paris office was established in January 2019; its dedicated litigation and international arbitration team comprises lawyers who are recognised for their expertise and their training at major international law firms. The team is recognised for its work in complex, cross-border litigation, commercial, banking, corporate and post-M&A disputes, insurance/reinsurance, product liability and environment litigation, mass litigation and class actions.

The main laws and regulations of the product safety legal regime in France are as follows.

  • Consumer law governs relations between professional sellers and consumers so as to ensure the protection of consumers. As such, the French Consumer Code transposes Directive 2001/95/EC on general product safety, which provides for a fundamental right to safety for consumers: "products and services must [...] be safe for consumers and not be a danger to public health" (Article L. 421-3 of the French Consumer Code).
  • Strict liability for defective products derives from Directive 85/374/EEC on liability for defective products and is transposed into the French Civil Code under Articles 1245 and following. This regulation makes the producer/distributor/seller liable for their product's defect when it has caused damage.
  • Public health law regulates the safety of specific products, such as medicine or other health products.

In France, the authority which gets to control the largest number of products, whether food products or not, is the Directorate General for Competition, Consumer Affairs and Fraud Control (Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes or DGCCRF).

Besides the DGCCRF, there are other several regulators for product safety issues depending on the industry or the type of product at stake.

For instance, for food products of animal origin, the competent authority is the Directorate General for Food (Direction Générale de l'Alimentation or DGAL). The DGAL is only competent for food products of animal origin. All other food products fall under the jurisdiction of the DGCCRF. 

The competent authority for safety issues relating to vehicles is the Directorate General for Energy and Climate (Direction Générale de l'Energie et du Climat or DGEC).

The French National Agency for Medicines and Health Products Safety (Agence Nationale de Sécurité du Médicament et des Produits de Santé or ANSM) controls and regulates health products as well as cosmetics. For cosmetics, the ANSM shares jurisdiction with the DGCCRF.

The authorities perform regular investigations and controls. They monitor the products placed on the market and their conclusions are sent to the competent ministry, which can order appropriate measures if and when necessary. These authorities have been granted increasing powers, in particular the DGCCRF (since the Hamon Law of 17 March 2014), which can notably:

  • access manufacturing and storing sites (Article L. 512-5 of the French Consumer Code);
  • request specific documents to be communicated to it by the producer (Article L. 512-8 of the French Consumer Code);
  • take samples and have them tested in its own laboratories (Article L. 512-12 of the French Consumer Code); and/or
  • require the assistance of any expert (Article L. 512-17 of the French Consumer Code).

Other more emblematic powers are the ability to seize products (Article L. 512-51 of the French Consumer Code) and to use a fake identity to conduct its investigation (Article L. 512-16 of the French Consumer Code). Most importantly, French authorities can decide to sanction producers through administrative fines in exchange for not referring the case to the Public Prosecutor (who may decide to refer the case to a Criminal Court). Indeed, it is notable that in France most non-conformities with consumer law result in criminal liability.

Products are regarded as safe as long as they meet the required standard and/or have not caused any damage (Article L. 421-3 of the French Consumer Code). However, when they give rise to safety issues due to the breach of one of the two above reasons, producers who have become aware of the risks have the obligation to implement all necessary actions to limit such risks. Actions can range from effective warnings to consumers to product withdrawals and recalls (Article L. 423-2 of the French Consumer Code).

There are no legal provisions on how the producer must advertise the warning or the product recall. In practice, the producer generally informs the consumers by way of press releases or individual letter, with the assistance of its distributors. Furthermore, product recalls are listed and published by the DGCCRF on its website.

The competent ministries may also take corrective actions if the danger triggered by the products is serious or immediate. The production, importation, exportation, sale, distribution or availability of the products can be suspended for a period not exceeding one year. The authorities can also order the products to be withdrawn from the market, destroyed or for the supplier to issue warnings and supplemental instructions, or carry out recalls, exchanges, modifications or reimbursements. Where temporary measures have been taken, the products may, however, be reintroduced onto the market before the end of the temporary suspension period, provided they have been certified as compliant with all applicable regulations (Article L. 521-17 of the French Consumer Code). These temporary measures require a ministerial order. Experience shows that they are quite rare as French authorities generally tend to engage with the producer in order to find common ground on what measures should be implemented.

When a product breaches the general principle of consumer safety, the authorities can also order permanent measures, including the withdrawal of the product from the market, the modification of the recall already implemented, the repossession of the product by the seller for reimbursement of all or part of the purchase price, the exchange or the destruction of the product (Article L. 521-7 of the French Consumer Code). Such measures are taken by Decree of the Conseil d'Etat (French Administrative Supreme Court) (Article L. 412-1 of the French Consumer Code). These are quite rare measures given that the French authorities tend to create a dialogue with the producer to reach a common understanding of what measures would be the most appropriate.

Failure to comply with either one of these decrees or ministerial orders is punishable by a fine of up to EUR7,500 per product or infringement for legal entities (Articles R. 452-4 and R. 532-1 of the French Consumer Code).

The trigger for notification to authorities in France is in line with what Directive 2001/95/EC on general product safety provides for, ie, a serious and immediate risk for consumers. Producers/distributors are, however, encouraged to file notifications even in lower-risk cases, as this allows the authorities to better monitor the market and measures taken. 

When a product presents an immediate serious safety risk, its producer or distributor must "immediately" inform the competent regulatory authorities (Article L. 423-3 of the French Consumer Code). The format of such notification will depend on the type of product:

The producer/distributor have to notify regulatory authorities immediately. However, the term "immediately" is not defined and will be assessed by the authorities on a case-by-case basis (Article L. 423-3 of the French Consumer Code).

In the absence of any notification, a fine will be imposed according to Article R. 223-6 of the French Consumer Code.

When an operator fails to implement withdrawal or recall procedures, despite being aware of the fact that a product may be dangerous for human health, the operator risks a maximum prison sentence of five years and a fine of up to EUR600,000, bearing in mind that this amount is multiplied by five for legal entities (Article L. 452-5 of the French Consumer Code).

In the case of products of animal origin or food products containing animal products that are dangerous for health, or feed products of animal origin or containing hazardous products of animal origin, the operator who placed these products on the market or who failed to implement the abovementioned withdrawal or recall procedures risks a maximum prison sentence of four years and a fine of up to EUR600,000, bearing in mind that this amount is multiplied by five for legal entities (Article L. 237-2 of the French Rural Code). With the entry into force of the so-called Egalim Law (Law No 2018-938 of 30 October 2018 for balanced commercial relations in the farming and food sector and for healthy, sustainable and accessible nutrition), the prison sentence should increase to five years.

In addition to potential civil penalties (such as the award of damages), the placing on the market of a non-compliant product may give rise to a level-five fine (EUR1,500 per product or offence, bearing in mind that this amount is multiplied by five for legal entities), when such non-conformity results from the ignorance of a Decree enacted further to the provisions relating to conformity (Article R. 451-1 of the French Consumer Code).

As mentioned above, the competent Ministries can order the withdrawal, recall or destruction of products entailing safety risks (Articles L. 412-1 and L. 521-17 of the French Consumer Code). On these grounds, on 10 December 2018, Bruno Lemaire, Minister for the Economy and Finance, ordered the withdrawal/recall of infant nutrition products manufactured by Lactalis. As a result, millions of boxes sold in tens of thousands of points of sale in France and in some 60 countries had to be recalled.

Furthermore, if the product causes damage, the producer/distributor may be held liable before civil and/or criminal courts. For example, by judgment dated 11 April 2019, the Lyon Court of Appeal confirmed the civil liability of Monsanto for producing an alleged toxic herbicide that caused damage to a French farmer.

Tort Liability

Tort liability can be sought by any plaintiff where compensation is claimed for damage that does not result from the manufacturer's breach of a contractual obligation.

The defendant can be held liable in tort only if the plaintiff can prove that:

  • the defendant is responsible for either a fault (intentional or not) or negligence;
  • he/she has suffered a loss; and
  • there is a causal link between the loss and the fault (Articles 1240 and 1241 of the French Civil Code). 

The fault can result from the fact that the producer did not act "as a reasonable person would be expected to act."

The other regime that exists links liability to "things that are in one's custody," ie, a thing that a party has the power to use, control and manage (Article 1242 of the French Civil Code). The existence of a fault is not required and the plaintiff only has to prove that the damage was caused by a "thing" (ie, any type of product, including vehicles). One could argue that the consumer has custody of the product as soon as he/she has purchased it. French case law considers that manufacturers are strictly liable and as such retain custody of the products they manufactured despite their apparent transfer to users. This principle has been applied when the product, due to its nature, contained latent potential for harm (eg, explosion of products such as televisions, gas cylinders, fire extinguishers and bottles of sparkling water or soda).

Strict Liability for Defective Products

Articles 1245 and following of the French Civil Code, which derive from Directive 85/374/EEC on liability for defective products, apply when the product is considered unsafe.

The producer is liable for damage caused by a defect in its product regardless of whether or not the parties have concluded a contract. As a result, this rule applies to any end user in possession of a product, whether or not the end user concluded a contract with the producer.

The rules laid down in these articles are based on strict liability. No fault or negligence or breach of contract is required in order to condemn the producer. 

The plaintiff is free to choose which liability rules would best suit his/her interests. As stated above, the plaintiff is only required to prove the defect of the product, the damage suffered and the causal link between the defect and the damage.

A defective product is a product that "does not provide the safety which a person is entitled to expect," taking into account, notably, the presentation of the product, the use that can reasonably be expected of it and the time when it was placed on the market (Article 1245-3 of the French Civil Code).

Contractual Liability

This can be sought by a customer and direct purchaser of the product and by any end user and final buyer of the product. The final buyer will have a direct claim against the producer if the claim is brought against a French subsidiary of the producer. However, this rule is not applicable to international chains of contracts. There are two types of contractual claims available, as follows.

  • Breach of contractual provisions:
    1. Three elements have to be established in order for contractual liability to be incurred by the producer: a breach (fault), a loss and a causal link between the breach and the loss (Article 1231-1 of the French Civil Code).
    2. Under French law, a party that does not comply with its contractual obligations or is late in performing them commits a fault. One of the main obligations of a producer is to deliver products free of any defects. As a consequence, if a contracting party can demonstrate that the producer failed to comply with this obligation by delivering a defective product, it is entitled to claim damages.
    3. Among the seller's obligations, Articles 1603 and 1604 of the French Civil Code have been interpreted by French courts as requiring that the seller provides the purchaser with a product that complies with the contractual specifications, that is as described by the seller or as specifically agreed between the parties. In this respect, any claim made on packaging, advertisements or the internet will be deemed as a contractual specification.
  • Statutory warranty against hidden defects: under Article 1641 of the French Civil Code, a seller is liable where a defect which was not apparent at the time of the sale renders the product unfit for its intended use, or reduces its usefulness to such an extent that the buyer would not have acquired it or would not have paid the same price had he/she been aware of the defect. This allows the end user to sue the producer even after the expiration of the statute of limitation for a standard contractual claim to be brought.

In product liability cases, a person who has an interest to act is automatically granted standing (Article 31 of the French Code of Civil Procedure). Therefore, in practice, any person who suffers bodily injury or damage to products other than the defective product itself has standing to bring claims for product liability.

Furthermore, according to Article L.421-1 of the French Consumer Code, duly declared consumer associations may also bring collective civil actions under the specific conditions that:

  • their statutory objective must explicitly mention the defence of consumer interests; and
  • they must be approved for such purpose and recognised to be representative on a national level.

If the conditions are met, these associations have standing to act for the collective interest of consumers as a whole.

However, concerning class actions, only approved nationally representative associations have standing. Therefore, even if the damage is suffered by the consumer or user of the health system, only an approved association can initiate proceedings (Article L.623-1 of the French Consumer Code; Article L.1143-2 of the French Public Health Code).

Contractual liability and tort actions are time-barred after five years from the date on which the plaintiff knew of, or should reasonably have known of, the facts on which the action is based.

Actions based on the statutory warranty against hidden defects must be brought within two years of the discovery of the defect.

Actions based on strict liability for defective products must be brought within three years after the plaintiff has become aware, or should reasonably have become aware, of the defect, the identity of the producer and the existence of the loss. However, the manufacturer can only be found liable up to ten years after the product was placed on the market (Article 1245-15 of the French Civil Code).

As is clear, the date of the knowledge by the plaintiff is key to determine the starting point of the statute of limitation in France. This explains why producers doing business in France are very keen to specifically document the first complaint received from a consumer.

In civil matters, both national and EU laws make the defendant's domicile in the French territory the primary criterion of jurisdiction of French courts (Article 42 of the French Code of Civil Procedure). This principle, which was originally applied in order to share jurisdiction between French courts, has been extended by the French Supreme Court to cross-border cases (see French Supreme Court, 1st Civil Chamber 14 March 2006, No 05-13.820) provided that there is no applicable provision that would preclude it.

The jurisdiction of the French Courts may also result from the location of the plaintiff's domicile in the French territory. Article R. 631-3 of the French Consumer Code allows the consumer to bring an action either before the court of the place where he/she resided at the time of the conclusion of the contract or the court of the place where he/she resided at the time of the event giving rise to the damage.

Similarly, Article 18 of EU Regulation 1215/2012 of 12 December 2012 states that, in matters relating to contracts concluded by consumers, the consumer may bring proceedings against the other co-contracting party "either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled."

Therefore, based on these provisions, a consumer domiciled in France is free to bring proceedings before the French courts against a professional producer/distributor/seller domiciled in another EU member state or in a third country.

No mandatory steps must be taken before proceedings can be commenced formally for product liability cases. The plaintiff simply has to summon the defendant to appear before court.

However, if the contract between the plaintiff and the defendant provides for a prior conciliation procedure, then this procedure must be respected by the parties or the court can declare the plaintiff's requests inadmissible. Only when parties have failed to reach a settlement during the conciliation procedure can the matter be referred to the court.

Furthermore, since Decree No 2015-282 of 11 March 2015, Article 56 of the French Code of Civil Procedure states that in their writs of summons, plaintiffs must justify the steps taken prior to the action to reach an amicable settlement of the dispute "unless there is a legitimate reason relating to the urgency or the matter in question, in particular those which concern public policy." However, the efficiency of this provision is limited as there is no punishment for failure to comply.

This being said, mediation is encouraged by the French Government. As such, Articles L. 611-1 and following of the French Consumer Code detail the circumstances when mediation should first be organised when there is a dispute between a consumer and a producer.

Another step that could be interpreted as a pre-action procedure is the request by the plaintiff to have an expert appointed by a court in order for said expert to determine whether or not the product is defective. This is part of actual proceedings before the lower court, but the expert's opinion will not give rise to any judgment on the merits and any damages if the plaintiff does not then file a standard claim on the merits to ask for compensation. 

In product liability cases, there are no specific rules for the preservation of evidence. Each party must preserve materially relevant evidence supporting their claims before submitting them to the court. As stated in Article 9 of the French Code of Civil Procedure, "it is the responsibility of each party to prove, in accordance with the law, the facts necessary for the success of its claim."

The court can order investigative measures, including the production of evidence, if it considers that there is not sufficient evidence (Article 10 of the French Code of Civil Procedure). In such a case, the parties must comply. If they fail to do so, the court can draw any consequences from their failure or refusal to cooperate (Article 11 of the French Code of Civil Procedure). Such an order can also be issued under threat of a periodic penalty (Article 11 of the French Code of Civil Procedure).

Furthermore, parties can request legally permissible preparatory inquiries before proceedings, "if there is a legitimate reason to preserve or to establish […] evidence of facts upon which the outcome of the dispute depends" (Article 145 of the French Code of Civil Procedure). If the conditions are met, the court may order investigative measures for the collection of evidence (mesure d'instruction in futurum). This way, a party has the possibility to preserve or establish crucial evidence for use in a possible trial.

There are no procedures for disclosure/discovery of documents under French civil law. Parties are free to select the documents they wish to disclose during the proceedings.

They can, however, request the production of evidence not disclosed by the other party or detained by a third party but only under very strict conditions and proper identification of the document it wants. There is no "fishing expedition" allowed (Articles 138 and 139 of the French Code of Civil Procedure).

Each party can be assisted by its own expert. Parties can either choose an expert who is listed by French courts of appeal or the Supreme Court as being knowledgeable in a specific area or even choose an expert who is not on such a list, bearing in mind that an unlisted expert's opinion may be looked at as being less convincing than the opinion of a 'listed expert'. Either kind of parties-appointed expert would need to file a written report that would become evidence in the case. This report will be key as there are no oral testimonies during trial in France.

In order to avoid a situation where the court has to determine which parties-appointed expert is the most convincing, courts tend to almost systematically appoint an expert in product liability cases. Such appointment can either be requested by the parties or discretionarily by the court (Article 232 of the French Code of Civil Procedure). This expert is chosen from the abovementioned official lists. The fees of the court-appointed expert are usually borne first by the plaintiff who can ask for its reimbursement to the defendant if the latter is later found liable.

Various expert meetings are generally organised by the expert. They are attended by the expert, the parties' lawyers and/or representatives and, if needed, ex parte technical experts retained by the parties.

The merits of the case are not discussed at this stage. Experts can only address technical (but not legal) issues (Article 238 of the French Code of Civil Procedure). It is key that the expert does not legally qualify a defect in order to avoid any potential ambiguity during the proceedings on the merits.

French expert proceedings are based on the adversarial principle, whereby all documents submitted to the court or the expert must be sent to the opposing parties. No private conversations or communications can consequently be held with, or sent to, the expert. The parties can request for another expert to be appointed in order to provide assistance to the appointed expert should he/she not have all the technical skills needed.

The expert proceedings end when the expert files his/her final report with the clerk, a copy of which is sent to the parties' lawyers. It is important for the parties to request a draft report before the final one is filed in order to get a last chance to comment on the expert's position. Indeed, once the final report is filed, the proceedings are over.

The expert's report is not binding on the court and is legally merely an opinion given to the court (Article 246 of the French Code of Civil Procedure). However, the court generally tends to adopt the expert's conclusions on technical points.

At any time, one or more parties and/or appointed expert can decide that another expert should be appointed in order to assist the first expert. This second expert must have a different set of competences and specialisms to the first one and cannot replace the first expert in his/her mission. The number of possible additional experts is unlimited, as long as it is justified by the facts of the case and that the plaintiff or another party agrees to pay the fees upfront (with the possibility to ask later on for the reimbursement of the fees to the party which is found liable).

The burden of proof lies in principle with the plaintiff (Article 9 of the French Code of Civil Procedure). The burden of proof shifts to the defendant whenever the defendant invokes a limitation of liability.

This being said, in practice, French courts tend to shift the burden of proof to the producer. The latter often needs to demonstrate, when it cannot prove a flagrant misuse by the plaintiff of the product, that its product is compliant and safe in order to answer the plaintiff's claim that the product is, for instance, affected by a hidden defect. The producer also has the burden of proof to demonstrate that even if a product presents a defect, there is no serial defect. 

This is very important when looking at case law such as the Boston Scientific case, which gave rise to a judgment by the European Union Court of Justice on 21 October 2014 (Cases C-503/13 and C-504/13, Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt and Others). Interpreting Article 6 of Directive 85/374/EEC of 25 July 1985 on liability for defective products, the court notably ruled that where products belonging to the same production series have a potential defect, it was fair to classify all products in that production series as defective without the need to establish that any specific product was in fact defective.

More generally, in most product liability cases giving rise to preliminary expert proceedings whereby a court-appointed expert tries to determine the origin of the damage, producers tend to put in much more work in order to demonstrate the lack of defect, notably by ordering tests, filing technical documents and providing explanations.

Product liability cases brought by consumers against corporations are handled by civil or commercial courts (at the plaintiff's choice).

Consumers generally bring their claims before civil courts. The relevant civil court will depend on the value of the claim, with claims up to EUR10,000 brought before the Tribunal d'Instance, composed of a single Judge and claims of more than EUR10,000 brought before the Tribunal de Grande Instance generally composed of a panel of three judges. Judges composing civil courts are career judges who were trained in the specific school for judges in France after law school (Ecole Nationale de la Magistrature or ENM).

If the claim is brought by a professional, it is brought before the Tribunal de Commerce composed of a panel of three judges. In the largest commercial courts, however, cases are heard by a single reporting judge but later decided on by a panel of three judges. The judges composing the Tribunal de Commerce are not career judges but professionals who have been elected by their peers among professional unions.

There are no juries in the French legal system, except in criminal proceedings relating to the most serious criminal offences. Therefore, product liability cases will not be heard by a jury. The only step the plaintiff will have to take is to summon the defendant to appear before the relevant court.

It is notable that if an authority considers that a product is not compliant, the case will likely be analysed by criminal courts. Indeed, the latter have jurisdiction not only to rule on cases where there has been a personal injury due to the use of a product but also when there is deceit, misleading commercial practices or the use of a language other than French on the packaging. If criminal courts are seized, the consumers or any other plaintiff will be able to request compensation of their damages to the criminal courts which will rule on both the criminal liability and civil compensation.

Appeals in France are allowed in the majority of cases, with no filter being applied. They tend to be lodged quite automatically, as the first consequence of lodging an appeal is that the payment of the damages ordered by the lower court is suspended. Indeed, as a matter of principle, all sanctions ordered by lower courts will be suspended unless the lower court specifically rules otherwise. Even then, the condemned party will be entitled to file a claim before the presiding judge of the Court of Appeal to request the suspension of the payment. It will have to demonstrate that enforcing the lower court judgment would notably have manifestly excessive consequences.

Appeals before the Courts of Appeal must be lodged within one month of the date of the service of the decision (plus two months for appellants domiciled abroad), unless the amount of the claim brought before the lower court is less than EUR4,000, in which case the appeal can only be lodged before the French Supreme Court. The Court of Appeal rules de novo on both the factual and legal aspects. This means that the parties can file new evidence and that the Courts of Appeal are not bound by the decision of the lower judges, whether on a question of law or fact.

Decisions of Courts of Appeal can be appealed before the French Supreme Court, in principle, in civil matters, within two months of the date of service of the appellate decision (plus two months for appellants domiciled abroad). The French Supreme Court, which only reviews issues of law, either rejects the appeal or quashes the judgment and, generally, refers the case to a different Court of Appeal to be reviewed again. Lodging an appeal before the Supreme Court is a right in France, meaning that there is no early filter by which the court would reject the appeal without looking at the merits of the case.

Generally speaking, proceedings before Courts of Appeal generally take between 18 months and two years between the appeal and a judgment. Proceedings before the Supreme Court are generally a bit faster (a year). As mentioned above, if the case is then referred by the Supreme Court back to another Court of Appeal, another 18 months to two years should be added. In very specific circumstances, note that the Supreme Court can be seized again following judgment of the second referral Court of Appeal.

Defences will vary depending on the nature of the claim filed. It ought to be noted that French courts tend to be severe towards producers considering that they are the ones who know their product best and could therefore most easily avoid defects, misuse by and/or disappointment of users.

In contractual liability cases, the producer's liability can be excluded if it can prove:

  • an extraneous cause for the defect caused by an event of force majeure; and/or
  • a fault committed by the plaintiff or a third party or contributory negligence that could result in shared liability.

In cases where the plaintiff alleges that the product is affected by a hidden defect, the fact that the producer was not aware of the existence of the defect is not a valid defence. Sellers are presumed to be aware of hidden defects affecting their products.

In practice, it is very difficult to avoid liability on the grounds of the hidden defects warranty. The producer could in theory avoid liability by demonstrating that the defect was apparent at the time of the sale. However, the definition of an apparent defect varies depending on who the purchaser is, ie, whether he/she is a knowledgeable professional who could have properly inspected the product and noticed a defect. This being said, case law specifies that buyers do not have to carry out a thorough verification at the time of delivery.

In strict liability for defective products cases, the producer will not be liable if it proves any one or more of the following (Article 1245-10 of the French Civil Code).

  • It did not place the product on the market.
  • The defect appeared after the product was placed on the market.
  • The product was not manufactured to be sold or distributed for profit.
  • Scientific and technical knowledge at the time when the product was placed on the market was insufficient to identify the defect (development risk defence), except where damage was caused by an element of the human body or by its products (Article 1245-11 of the French Civil Code).
  • The defect results from compliance with mandatory regulations issued by public authorities.

When the plaintiff is at fault or his/her negligence contributed to the damage, the producer's liability can be reduced. In this case, the producer's liability can only be reduced and shared with the plaintiff (but not excluded) (Article 1245-12 of the French Civil Code).

The producer's liability can only be totally excluded if the latter can prove that the plaintiff's fault was unforeseeable and irresistible (as in force majeure cases). This is notably the case if the product is used by the plaintiff in an abnormal way that could not have been reasonably expected by the producer. Courts have a very strict approach to this defence, often considering that producers should always expect the worse and most unusual behaviour from the users.

The liability of the producer towards the injured will not be reduced where the act or omission of a third party contributed to the damage. However, the producer can bring an indemnity claim against the third party whose actions caused the damage (Article 1245-13 of the French Civil Code).

Finally, in tort claims, the producer's liability can be excluded if it proves the existence of an extraneous cause for the defect caused by force majeure or a fault committed by the plaintiff or a third party, or contributory negligence that could result in shared liability.

In product liability cases, adherence to regulatory requirements can be of relevant consideration, depending on the nature of these requirements. However, in practice it is less and less relevant, even if Article 1245-10 of the French Civil Code states that if the producer/distributor proves that the "defect is due to compliance with mandatory legislation or governmental regulations" then they will not be held liable. 

Indeed, according to Article 1245-9 of the French Civil Code, the fact that a product received an administrative authorisation or was manufactured in compliance with the rules of the trade or existing standards cannot constitute proper defence. The number of products which have received an authorisation to be placed on the market that trigger the liability of their producer is nonetheless significant. There are as such dozens of open cases against medical products, pesticides and motor vehicle manufacturers, for instance.

A distinction must be made between the procedural costs that are strictly necessary to the lawsuit (dépens) and the other expenses incurred by a party, such as lawyers' fees (frais irrépétibles).

The successful party can recover all procedural costs listed in Article 695 of the French Code of Civil Procedure (such as court-appointed experts' fees, witnesses' expenses or services fees) (Article 696 of the French Code of Civil Procedure).

Any other legal costs incurred by a party, such as legal fees, fall under the scope of Article 700 of the French Code of Civil Procedure, which states that the court will order the party bearing the court costs, or failing that the losing party, to pay to the other a sum determined by the court corresponding to the costs incurred that are not included in the procedural costs. When doing so, courts will not look at lawyers' invoices and what cost each party actually bore for presenting its case. The losing party will never have to reimburse all that was spent by the winning party. The court will assess, on a case-by-case basis, what amount would be fair to grant, taking into account equity or the economic position of the paying party and the amount of damages granted (generally no more than EUR20,000).

Third-party funding is not, as such, forbidden by French law (see Versailles Court of Appeal 1 June 2006, No 05/01038). However, third-party funding is not yet common practice in France even if it is growing. The fact that there is no legal framework and no public records on this mechanism makes it difficult to assess how successful it will become.

There are many obstacles for third-party funding to expand in France, the main one being the rules governing the lawyer's relationship with clients, in particular the rules governing conflicts of interest and those relating to lawyers' fees.

The French lawyers' ethical rules provide that lawyers can only receive fees from their clients or an authorised representative of their clients. Lawyers can, therefore, not be paid directly by the third-party funder.

Also, French lawyers are not entitled to communicate information to third parties. Lawyers must avoid bilateral discussions with the third-party funder in the absence of the client's presence. The third-party funder must always be considered a third party.

Purely results-based fee arrangements (pacte de quota litis) are furthermore forbidden in France as well as by the European ethical rules of the Council of European Bars, although the National Council of French Bars and the Council of European Bars are currently working on a possible change in the regulation on fee arrangements to allow results-based fee arrangements under certain circumstances.

The first class action mechanism was introduced in France by the Hamon Law of 17 March 2014, that came into force on 1 October 2014, under the name of group actions. The scope of this group action was then limited to consumer and competition law breaches only. This opt-in system can only be launched by a specific and limited list of consumers' associations which must find at least two people suffering from similar damage. Actions have until now mainly been brought against insurance and property manager companies. None has been successful to date.

By the Law dated 26 January 2016, the group action mechanism was extended to the field of health products and cosmetics. The purpose of this specific group action is to enable users of the health system and consumers using cosmetics to obtain compensation for losses resulting from bodily injuries, including in product liability matters. It can be launched against manufacturers, suppliers and service providers using health products (including pharmaceuticals and medical devices). The particularity of this mechanism in this field is that it would allow corporal damage to be compensated and it applies to products placed on the market even before the Law came into force.

The 'Justice of the 21st Century' Law of 18 November 2016 broadened the scope of group actions to discrimination, environment and personal data matters.

Group actions are not yet frequently used in product liability cases. However, recently, a group action was initiated under product liability against a pharmaceutical company. In a decision dated 20 November 2017, the Orléans Court of Appeal found the company liable for its defective drug (see Orléans Court of Appeal 20 November 2017, Docket No 16/00141).

Mass litigation is more common in France, ie, a significant number of individual claims filed by the same counsel before the same court and which are generally subject to the same procedural schedule and heard during the same trial hearing. Such cases are a challenge for defendants as plaintiffs will likely present these cases as one large case with exactly the same evidence for all plaintiffs, without such evidence being personal and showing specific damage. However, procedurally, these cases should be treated as being individual cases which could be tried one by one. Defendants need to insist on this point in order to stand a chance and avoid a global sentence against them.

In recent years, the French Supreme Court has rendered some significant decisions in product liability cases.

On 11 January 2017 (Appeal No 16-11.726), the Supreme Court confirmed that a producer can incur liability for damage caused by a product regardless of the private or professional use and purpose of the product. French law distinguishes itself on this point from Directive 85/374/EEC on liability for defective products. The Directive is only applicable to damage caused by a product intended for private use.

On 26 September 2018 (Appeal No 17-21.271), the Supreme Court ruled that the fact that a risk was mentioned in the user manual of a health product is not sufficient to preclude the judgment that the product is defective. According to the Supreme Court, a defect must be established when the seriousness of the risk incurred and the frequency with which it occurred exceeded the expected benefits of the health product in question.

And finally, on 28 November 2018 (Appeal No 17-14.356), the Supreme Court confirmed that the role of a third party in the damage does not constitute a cause of exemption for the liability of the producer/distributor. This ruling is a strict application of Article 1245-13 of the French Civil Code.

The development of product liability and safety law tends towards the further digitalisation of procedures.

Regarding product safety, the Directorate General for Competition, Consumer Affairs and Fraud Control (Direction Générale de la Concurrence de la Consommation et de la Répression des Fraudes of DGCCRF) inaugurated in December 2018, a new online platform named Signal Conso, to be used by consumers who wish to make a complaint against professional producers/distributors/sellers: https://signalconso.beta.gouv.fr/.

This platform is for now limited to the Centre-Val de Loire region but, within less than three months of it becoming active, more than 200 alerts from consumers were received. Such significant use of Signal Conso by consumers can be explained by the large number of categories that can justify a claim, including:

  • hygiene (dirty premises, presence of rats, etc);
  • food and beverage (expired products, misleading packaging, etc);
  • materials and objects (problems with a device or an instruction manual);
  • food poisoning (the consumer fell sick after consuming food);
  • price/payment (absence of prices, pricing errors, false promotions, etc);
  • publicity (misleading information); and
  • after-sales service (unreachable hotline, package not received, etc)

Unlike the existing system of complaints addressed to the DGCCRF, the alerts recorded on the platform are also accessible to concerned professionals. If the professional wishes to participate, he/she can make the necessary corrections and even contact the consumer who made the alert (if the latter has agreed to being contacted). Therefore, the purpose of Signal Conso is to make professionals more aware of their legal obligations in order to better ensure product safety and consumer protection.

Another development worth mentioning is the introduction of a new offence called 'planned obsolescence, according to which producers can be held liable if they are developing products in a way that they would become obsolete faster than they need to be in order to push consumers to purchase a new product (Article L.213-4-1 of the French Consumer Code). The obsolescence that can give rise to sanction can be aesthetic, functional, technical, direct, due to the change in the accessories, etc. The scope is very large, as are the potential sanctions. For individuals, planned obsolescence can give rise to a maximum imprisonment of two years and a fine of up to EUR300,000. Companies risk a fine of up to EUR1.5 million, which can be increased to up to 5% of the average turnover of the company for the three years preceding the offence. There has been no judgment on this issue yet. However, a specific association called Stop Planned Obsolescence (Halte à l'Obsolescence Programmée or HOP) has been created and is at the origin of a number of complaints which have triggered investigations by the DGCCRF.

The increase of the fine for deceit and deceitful commercial practices, from a maximum of EUR300,000 to EUR1.5 million with the option to raise to fine to up to 10% of the turnover of the company, is also a sign that criminalisation of French consumer law is on its way, whether or not the product presents a safety risk.

French product liability rules are governed by a 19 May 1998 Law that transposed Directive 85/374/EEC on liability for defective products.

The former Minister of Justice presented a bill reforming tort law in March 2017. The bill has not yet been discussed by the Parliament, but the Senate has recently created an information mission on the matter.

There is no major evolution of tort law expected; the bill mainly clarifies and codifies principles established by case law.

However, the bill provides that the product liability rules would only become applicable to bodily injuries as well as to damage to products other than the defective product itself, provided that such products are intended for private use and have been mainly used by the victim for his/her personal use.

Additionally, the bill contemplates removing the exclusion of the producer's liability, which is currently based on the development risk defence. However, this removal will only be applicable to health products for human use.

Finally, the bill contemplates introducing into French law the obligation to mitigate damage. It is proposed that a new Article 1263 be introduced in the French Civil Code providing that "except in the case of bodily injury, damages are reduced when the victim has not taken appropriate measures (…) to avoid the aggravation of his/her injury."

Signature Litigation

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sylvie.gallage-alwis@signaturelitigation.com https://www.signaturelitigation.com/
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Signature Litigation AARPI is a specialised firm handling major high-value litigation, arbitration and regulatory investigations. It often handles multi-party disputes stretching across multiple jurisdictions and is best known as a commercial and financial market litigation practice which operates on a conflict-free platform. Signature acts for a large number of worldwide manufacturers as well as banks and other institutions operating in the financial markets. Its Paris office was established in January 2019; its dedicated litigation and international arbitration team comprises lawyers who are recognised for their expertise and their training at major international law firms. The team is recognised for its work in complex, cross-border litigation, commercial, banking, corporate and post-M&A disputes, insurance/reinsurance, product liability and environment litigation, mass litigation and class actions.

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