FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
may be sought under the product liability regime, to the supplier of a product where that supplier has not physically affixed his/her name, its trade mark or any other distinctive sign on the product, but the trade mark affixed by the producer on the product coin - cides, on the one hand, with the name of the sup - plier or a distinctive element thereof and, on the other hand, with the name of the producer. 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 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 com - pensation for damage exceeds EUR500, or from dam - age to property other than the defective product itself. The claimant must prove the damage, the defect and the causal link between them. 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. The claimant must prove the fault, the damage and the causal link between them. This principle was reaffirmed by the Court of Cassa - tion 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 deci - sion, 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). Despite this ruling by the Court of Cassation, the courts of appeal have handed down judgments in line with the Court of Cassation’s case law. The Colmar Court of Appeal (5 September 2024, No 22/01104),
points out in particular that the action brought by the insurer, subrogated to the rights of its insured, is time- barred unless proof is provided of a fault on the part of the manufacturer that is distinct from the mere lack of safety of the product – and that is likely to enable the appellant to act on a legal basis other than that of strict liability for defective products. It is in this very specific context that, on 24 April 2024, the Rouen Court of Appeal referred a request for a preliminary ruling on the interpretation of EU law to the CJEU (2024 C-338/24 filed on 7 May 2024). The CJEU, however, endorsed the reasoning adopted by the French Court of Cassation (First Civil Chamber, 15 November 2023, No 22-21.178) and confirmed that an action based on fault may be admissible insofar as the required fault differs from the defect defined in Article 6 of the Directive, with reference to the lack of safety that could legitimately be expected (CJEU – Judgement of the Court, 26 March 2026 C-338/24, LV v Sanofi Pasteur SA ). In this case, the civil torts invoked consist of the con - tinued marketing of a product for which the producer is aware of a safety defect – a breach of the duty of care regarding the risks associated with the product (more broadly, “any other fault related to the defect”). Hidden Defect The seller is liable for any hidden defects in the goods sold that 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 that the buyer could reasonably have identified themselves. However, 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 in this regard. 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
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