FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
To demonstrate that the document is eligible for pro - tection as a trade secret, several factors may be con - sidered (a “confidential” label, access restrictions, etc). Furthermore, the new Act of 23 February 2026 ensures that consultations carried out by a company’s in- house lawyers, under certain conditions (regarding the identity of the author and the recipient, and the con - tent and form of the consultation itself), are protected from disclosure under the seal of confidentiality. This confidentiality ensures that records of consultations cannot be seized in the context of civil, commercial or administrative proceedings or disputes, including by French or foreign administrative authorities. How - ever, confidentiality is not enforceable in criminal or tax proceedings, or against EU authorities. 2.8 Rules for Expert Evidence in Product Liability Cases 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 Court of Cassation and the courts of appeal. Article 275 of the CPC 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. 2.9 Burden of Proof in Product Liability Cases The burden of proving the elements constituting lia - bility 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 CJEU, subject to the fact that the national courts ensure that the practical applica - tion of said evidential system does not result in disre-
garding 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 that would always be regarded as established when certain predetermined factual indications of causation are met (Judgement of the Court (Second Chamber) of 21 June 2017, N . W and Others v Sanofi Pasteur MSD SNC and Others ). A recent ruling of the Conseil d’État has stated that, although no causal link has yet been established between the administration of vaccines and multi - ple sclerosis, the hypothesis that such a link exists has been envisaged by scientific research work that has given rise to publications in recognised journals, which are not formally contradicted by current scien - tific data. Thus, the fact that scientific work has been carried out on the subject would suffice to presume the existence of a causal link, regardless of the out - come of this work (Conseil d’État, 7 November 2024, Nos 472707, 472625 and 4662883). However, in a judgment of 7 January 2026 (No 24-12.386), the Court of Cassation reiterated that the existence of “serious, specific and consistent” evi - dence does not oblige the court to automatically rec - ognise causality. In this case, the claimant attributed the onset of encephalopathy and developmental delay in their child to the vaccinations they had received. The court of appeal had therefore been entitled to rule out the product’s liability for the damage, despite the temporal proximity of the events, without being criticised for misrepresenting the facts or reversing the burden of proof. 2.10 Courts in Which Product Liability Claims Are Brought 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 commer - cial 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 establish -
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