FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
Cour D’appel de Rouen, Ch. civ. 25 April 2024, No 23/03137 (on referral from Cass. 1re civ., 5 July 2023, No 22-18.914, FS-B), Aff. C-338/24 Sanofi Pasteur, registered by CJEU on 7 May 2024 The Rouen Court of Appeal referred to the CJEU questions relating to fault vs lack of safety, the ten-year time-limit and the three-year time-limit in the following terms. • Article 13 of Directive 85/374/EEC of 25 July 1985, in its interpretation resulting from the judgment of 25 April 2002 (Gonzalez Sanchez C-183/00) according to which the victim of damage may rely on other contractual or non-contractual liability regimes based on grounds different from that established by the Directive, 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 failure to fulfil his/her duty of care with regard to the risks presented by the product or, in general, on a safety defect in the product. • Article 11 of Directive 85/374/EEC of 25 July 1985, according to which the rights con - ferred on the victim pursuant to the Directive lapse on expiry of a period of ten years from the date on which the product causing the damage was put into circulation, contrary to the provisions of Article 47 of the Charter of Fundamental Rights of the European Union in that it would deprive the victim suffering progressive damage caused by a defective product of his/her right of access to a judge. • 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 claimant knew or ought to have
known of the damage” , can be interpreted as running only from the day on which the full extent of the damage is known; in particular, by setting a consolidation date defined as the point at which the condition of the victim of the bodily injury is no longer evolving, so that in the case of an evolving pathology, the limitation period does not begin to run, and not from the day on which the injury definitely appeared, in connection with the defective product, regardless of its subsequent evolu - tion. 3. Recent Policy Changes and Outlook 3.1 Trends in Product Liability and Product Safety Policy Following the adoption of Regulation (EU) 2023/988 in May 2023 on general product safety, which applies from 13 December 2024, Article 2 of Law No 2024-364 of 22 April 2024 contain - ing various provisions for adapting to European Union law in the fields of economics, finance, ecological transition, criminal law, social law and agriculture (known as the DDADUE Law) transposed the measures requiring adaptation of French law, in particular the higher penalties for product recalls now provided for in Article L. 452-5-1 of the Consumer Code (five years’ imprisonment and a fine of EUR600,000, which may be increased to 10% of the average annual turnover of the operator in question). From 17 February 2024, new obligations set out in the European Digital Services Act (DSA) of 19 October 2022 will apply to online marketplaces, to ensure that sellers are identified, that informa - tion on products sold is more complete and that measures to recall non-compliant or dangerous products are more effectively relayed. These
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