FRANCE Trends and Developments Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
The Most Significant Current Events in French Law Stemming From Case Law and Regulatory Developments Recent developments in case law There has been a wealth of recent case law interpret - ing the provisions of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regu - lations and administrative provisions of the member states concerning liability for defective products, as transposed into the French Civil Code. In four decisions handed down on 15 November 2023 (No 22.21.174, No 22.21.178, No 22.21.179 and No 22.21.180), the First Civil Chamber of the Court of Cassation reiterated the principle that the victim of damage attributed to a defective product may bring an action against the producer based on fault. This fault may consist of keeping the product in circulation despite awareness of the defect, or failing in the duty of care regarding the risks presented by the product. More specifically, it relies on the wording of Article 1386-18, now 1245-17, of the Civil Code, transposing Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and adminis - trative provisions of the member states concerning liability for defective products, and the judgment of the Court of Justice of the European Communities of 25 April 2002 (ECJ, judgment of 25 April 2002, González Sánchez , C-183/00, paragraph 31), in which it held that the reference in Article 13 of the Directive to the rights that the victim of damage may rely on under contractual or non-contractual liability must be inter - preted as meaning that the system established by the 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. This decision was the subject of a press release from the Cour de Cassation, which explained the signifi - cance of this decision, in particular by specifying that, in the event that the victim is unable to bring an action alleging a product defect within the statutory time limits, he or she may nevertheless seek to hold the producer liable by proving that he or she commit - ted a fault, thereby benefiting from the longer time limits under ordinary civil liability law. However, these
decisions and the accompanying press release do not resolve the issue of the distinction between product defect and fault. Indeed, the Court of Justice of the European Union (CJEU) requires that the fault-based liability regime can only be used when it is based on a different ground – ie, when it does not constitute a defect. It should be noted that the draft Directive on liabil - ity for defective products of 12 March 2024 voted by the European Parliament (COM (2022) 0495) provides that in the legal systems of the member states, an injured person may have a right to compensation on the basis of contractual liability or on grounds of non- contractual liability other than the defectiveness of a product – for example, liability based on the war - ranty for latent defects or fault – and that it is there - fore appropriate that these provisions – which are also intended to achieve, inter alia, the objective of effec - tive consumer protection – should not be affected by the Directive (recital 9). This provision already existed in Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and admin - istrative provisions of the member states concerning liability for defective products. Regarding the causal link, the First Civil Chamber recently ruled on the question of its assessment when it is not exclusive. Referring to Articles 1245 and 1245- 8 of the Civil Code, it held that it is up to the claimant to prove by any means that his/her damage is attribut - able at least in part to the product in question. A partial causal link is therefore sufficient to consider that the condition has been met. It should be noted that the Directive on liability for defective products, passed by the European Parliament (COM (2022) 0495) on 12 March 2024, has extensively reviewed the proof of the causal link, using presumptions. It has also very recently recalled the conditions of pre - scription applicable to this system of strict liability. The First Civil Chamber reaffirmed its interpretation of the starting point of the three-year limitation period for actions under Article 1245-16 of the Civil Code in a judgment of 15 May 2024 (Cour de cassation, First Civil Chamber, 15 May 2024, No 22-23.985, F-D). In this case, a woman suffered trauma to her eye after
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