FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
2.17 Summary of Significant Recent Product Liability Claims Court of Cassation, Civil Division 1, 15 November 2023, 22-21.179 This decision deals with the principle that the victim may bring an action on the basis of prod - uct liability or on other grounds with a different basis, in particular fault. In a press release dated 15 November 2023, the Court of Cassation supported this decision by stating that the Court had made it easier for the victim of a defective medicinal product to bring an action before the courts, since the victim can ask the manufacturer for compensation for the damage suffered by choosing to invoke either the product’s defect or a fault committed by the manufacturer, which gives the victim more time to bring an action. The Cour de Cassation noted that the CJEU had ruled that the reference in Article 13 of the Direc - tive to the rights which the victim of damage may rely on under contractual or non-contractual liability must be interpreted as meaning that the system established by that 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 (ECJ, judgment of 25 April 2002, González Sánchez, C-183/00, paragraph 31). It follows, according to the Court, that the victim of damage attributed to a defective product may bring an action for liability against the producer on the basis of the second of those provisions, if he/she establishes that his/her damage results from a fault committed by the producer, such as keeping the product in circulation of which he/ she is aware of the defect or failing in his/her duty of care with regard to the risks presented by the product.
type of damages may be compensated. One of the major innovations of this new system is the creation of a specific civil penalty applicable in the event of fraudulent misconduct causing damage. Finally, the 2025 reform introduced the European cross-border group action in France, in appli - cation of Directive (EU) 2020/1828. This action enables qualified entities from one European Union member state to bring a group action in another member state, notably in the event of infringement of certain European texts, mainly in the consumer field. According to available information, 32 group actions have been initiated in France since 2014, including 20 in the consumer field. With the reform, a public register of pending group actions has been created. Consolidated Action In France, certain actions are brought in the form of consolidated actions, in which the plaintiffs join together and act in a single action brought by a single lawyer, claiming identical damages The aforementioned DDADUE law also estab - lished a new civil penalty for professionals who cause serial damage by committing a lucrative fault in the course of their business (new Article 1254 of the Civil Code). The amount of this “puni - tive” penalty is proportionate to the seriousness of the fault and the benefit that the perpetrator has derived from it. This penalty for serial dam - age may therefore be applicable in the context of class actions based on product liability. for all the plaintiffs. New Civil Penalty
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