FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
2.5 Pre-Action Procedures and Requirements for Product Liability Claims Pre-action procedures and requirements for product liability claims are not applicable in France. Howev - er, in the case of claims for less than EUR5,000, an attempt at amicable settlement of the dispute is man - datory for the action on the merits, on any grounds including a claim for compensation based on liability for defective products, to be admissible. 2.6 Rules for Preservation of Evidence in Product Liability Claims Under French law, it is incumbent upon each party to prove, in accordance with the law, the facts neces - sary 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 CPC). 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 Court of Cassation ruled on the conditions for admissibility of evidence obtained or produced in an unlawful or unfair manner under certain strict condi - tions. 2.7 Rules for Disclosure of Documents in Product Liability Cases 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 admis - sible investigative measures may be ordered upon the request of any interested party, on application or in summary proceedings (Article 145 of the CPC). The latter requires the applicant to demonstrate the exist - ence 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 legiti - mate reason when the request is not based on any precise, objective and verifiable fact, and the appli -
cant does not therefore demonstrate the existence of a plausible, credible dispute, albeit possible and future, the content and basis of which would be identi - fied, 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 CPC. 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 (Court of Cassation, Civil Division 2, 25 March 2021, No 20-14.309). Where, in the course of civil or commercial proceed - ings 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 the request of a party or a third party, if the protection of this secrecy cannot be ensured otherwise and without prejudice to the exer - cise 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 author - ised 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; or • adapt the reasons for its decision and the means of publicising it to the requirements of protecting business confidentiality (Article L. 153-1 of the Commercial Code).
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