FRANCE Trends and Developments Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
liability other than the defectiveness of a prod - uct, for example, liability based on the warranty for latent defects or fault, and that it is therefore appropriate that these provisions – which are also intended to achieve, inter alia, the objective of effective consumer protection – should not be affected by the Directive (recital 9). This provi - sion already existed in 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. 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 attributable 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 Direc - tive 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 condi - tions of prescription applicable to this system of strict liability. The First Civil Chamber reaf - firmed 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 (Cass 1re civ, 15 May 2024, No 22-23.985, F-D). In this case, a woman suffered trauma to her eye after handling a cream siphon on 31 August 2013, resulting in complete blind - ness 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 dam -
ages based on the provisions of Article 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 dam - age, 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 damage. 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 violated 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 (Cass 1e civ, 5 July 2023, No 22-18.914, FS-B). These decisions raise questions about the dis - tinction between the concepts of damage and injury in French law. On this point, the draft Directive on liability for defective products of 12 March 2024 voted on by the European 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 limi - tation period has been amended. It is specified in this respect that the member states shall ensure that an injured party is no longer enti - tled 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
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