FRANCE Trends and Developments Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
handling a cream siphon on 31 August 2013, resulting in complete blindness in that eye. Referring to Article 1386-17, now 1245-16, of the Civil Code, the First Civil Chamber recalled that, according to this text, an action for damages based on the provi - sions of Articles 1245 et seq of the Civil Code is time- barred within a period of three years from the date on which the plaintiff knew or should have known of the damage, the defect and the identity of the producer. It considers that in the case of personal injury, the date of knowledge of the damage should be taken to mean the date of consolidation, which alone enables the claimant to measure the extent of his or her dam - age. In the case referred to the Court of Cassation, the Court of Appeal had held that the claimant had become aware of the damage, the safety defect in the siphon and the identity of the producer on 31 August 2013, the day of the accident, and that the action had been time-barred since 27 January 2017. The Court of Cassation drew the consequences of its reasoning, holding that the Court of Appeal had vio - lated the law. In this decision, the First Civil Chamber in fact confirmed its previous case law, in particular under its decision of 5 July 2023 (Cour de cassation, First Civil Chamber, 5 July 2023, No 22-18.914, FS-B). These decisions raise questions about the distinction between the concepts of damage and injury in French law. On this point, the draft Directive on liability for defec - tive products of 12 March 2024 voted by the Euro - pean Parliament (COM (2022) 0495) does not change the fact that damage is one of the elements used to determine the starting point of the three-year limitation period, which remains unchanged (Article 16, point 1 of the Directive). On the other hand, the ten-year limitation period has been amended. It is specified in this respect that the member states shall ensure that an injured party is no longer entitled to compensation on expiry of a period of ten years, unless that injured party has, in the meantime, brought proceedings against an economic operator who can be held liable. This period runs from the date on which the defective product that caused the damage was
placed on the market or put into service; or in the case of substantially modified products, from the date on which the product was made available on the market or put into service following its substantial modifica - tion. Henceforth, by way of derogation from this mecha - nism, where an injured party has been unable to bring proceedings within a period of ten years from the aforementioned dates because of the latency period for personal injury, the injured party is no longer enti - tled to compensation under this Directive on expiry of a period of 25 years, unless that injured party has, in the meantime, brought proceedings against an eco - nomic operator who can be held liable (Article 17 (2)). These interpretations by the First Chamber led the lower courts to refer the matter to the CJEU. In a deci - sion dated 25 April 2024 (No 23/03137), the Rouen Court of Appeal referred to the CJEU questions relat - ing to the distinction between fault and lack of safety, the ten-year time limit and the three-year time limit. More specifically, the questions referred to the CJEU are based on the following. • Article 13 of Directive 85/374/EEC of 25 July 1985, as interpreted in the judgment of 25 April 2002 (González Sanchez C-183/00), according to which the victim of damage may rely on other systems of contractual or non-contractual liability based on grounds other than those established by the Direc - tive, to be interpreted as meaning that the victim of a defective product may seek compensation from the producer for his/her loss or damage on the basis of the general system of fault-based liability by relying, in particular, on the fact that the product was kept in circulation, on a breach of his/her duty of care with regard to the risks presented by the product or, more generally, on a safety defect in the product. • Article 10 of Directive 85/374/EEC of 25 July 1985, which fixes as the starting point of the three-year limitation period the date on which the claim - ant knew or ought to have known of the damage, can be interpreted as meaning that the limitation period can only run from the date on which the full extent of the damage became known, in particular by fixing a date of consolidation defined as the
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