FRANCE Trends and Developments Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
The Most Significant Current Events in French Law That Stem From Case Law and Regulatory Developments With Respect to Product Safety and Liability Recent developments in case law There has been a wealth of recent case law interpreting the provisions of Council Directive 85/374/EEC of 25 July 1985 on the approxima - tion of the laws, regulations and administrative provisions of the member states concerning lia - bility for defective products, as transposed into the French Civil Code. The First Civil Chamber of the Cour de Cassation is continuing its interpre - tation of the texts to influence the new Directive on liability for defective products voted on by the European Parliament (COM (2022) 0495) on 12 March 2024. First, the Cour de Cassation recalled that the system of liability for defective products makes it possible to act based on fault under national rules. This results from the terms of Article 1245- 17 of the Civil Code, which states that “The provisions of this chapter (of the Civil Code on liability for defective products) do not affect the rights which the victim of damage may rely on under the law of contractual or extra-contractual liability or under a special system of liability” . 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 pro - ducer based on fault. This fault may consist of keeping the product in circulation of which he/ she is aware of the defect, or in failing in his/her duty of care regarding the risks presented by the product. More specifically, it relies on the word - ing 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 administrative provi - sions of the member states concerning liability for defective products, and the judgment of the Court of Justice of the European Communi - ties 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 which the vic - tim of damage may rely on under contractual or non-contractual liability must be interpreted 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 lia - bility for latent defects or fault. This decision was the subject of a press release from the Cour de Cassation, which explained the significance 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 committed 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 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 liability for defective products of 12 March 2024 voted on 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 con - tractual liability or on grounds of non-contractual
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